National Consumer Disputes Redressal Commission
New Delhi

Consumer Case No. 97 Of 2016

1. Ambrish Kumar Shukla & 21 Ors.
H. No. 412, 1st Floor, Sector 6,
Bahadurgarh
Jhajjar
Haryana 124 507 ...........Complainant(S)
Versus

1. Ferrous Infrastructure Pvt. Ltd.
Seth Farms, Khasra No. 41,42,44,45, Mehrauli, Gurgaon Road,
Ghitorni, New Delhi110030
...........Opp.Party(S)

Before:
Hon'ble Mr. Justice D.K. Jain,President
Hon'ble Mr. Justice V.K. Jain,Member
Hon'ble Dr. B.C. Gupta,Member

For The Complainant : Mr. Uttam Datt, Advocate
Mr. Tarun Sharma, Advocate
For The Opp.Party : Mr. K.V. Girish Chowdary, Advocate

Dated : 07 Oct 2016

Order
Justice V.K. Jain, Member


Vide order dated 24.05.2016, passed in CC No. 97 of 2016, the following issues relating to the interpretation of Section 12(1)(c) of the Consumer
Protection Act were referred, by a two members Bench of this Commission, to a larger Bench for its decision:
(i) Whether a complaint under Section 12(1)(c) of the Consumer Protection Act filed on behalf of or for the benefit of only some of the
numerous consumers having a common interest or a common grievance is maintainable or it must necessarily be filed on behalf of or for the
benefit of all the consumers having a common interest or a common grievance against same person (s);
(ii) Whether a complaint under Section 12(1)(c) of the Consumer Protection Act is maintainable, before this Commission, where the value
of the goods or services and compensation, if any, claimed in respect of none of the allottees / purchasers exceeds Rupees one crore.
(iii) Whether a complaint under Section 12(1)(c) of the Consumer Protection Act is maintainable before this Commission, where the value
of the goods or services and the compensation claimed in respect of an individual allottee exceeds Rupees one crore in the case of one or
more allottees but does not exceed Rupees one crore in respect of other allottees;
(iv) Whether a complaint under Section 12(1)(c) of the Consumer Protection Act is maintainable, in a case of allotment of several flats in a
project / building, where the allotments / bookings / purchases are made on different dates and or the agreed cost of the flat and / or the area
of the flat is not identical in all the bookings / allotments / purchases.
2. Vide order dated 11.08.2016, passed in First Appeal No. 166 of 2016, First Appeal No. 504 of 2016 and First Appeal No. 505 of 2016, the
following issues were referred, by a single Member Bench of this Commission to the larger Bench:
(i) In a situation, where the possession of a housing unit has already been delivered to the complainants and may be, sale deeds etc. also
executed, but some deficiencies are pointed out in the construction/ development of the property, whether the pecuniary jurisdiction is to be
determined, taking the value of such property as a whole, OR the extent of deficiency alleged is to be considered for the purpose of
determining such pecuniary jurisdiction.
(ii) Whether the interest claimed on such value by way of compensation or otherwise, is to be taken into account for determining the
pecuniary jurisdiction of a particular consumer forum.
(iii) Whether “the value of the goods or services and compensation, if any, claimed” is to be taken as per the original value of such goods,
or service at the time of purchase of such goods or hiring or availing of such service, OR such value is to be taken at the time of filing the
claim, in question.
(iv) In complaints proposed to be filed under section 12(1)(c) of the Act with the permission of Consumer Forum, whether the pecuniary
jurisdiction is to be determined taking the value of goods or service for individual consumer, OR the aggregate value of the properties of all
consumers getting together to file the consumer complaint is to be taken into consideration.
(v) For filing the consumer complaints u/s 12(1)(c), whether a group of cooperative societies could join hands to file a joint complaint?
(vi) Whether the term ‘consumer’ given in section 12(1)(c) includes the term ‘Person’ as defined in section 2(m) of the Act, meaning
thereby that groups of firms, societies, association, etc. could join hands to file the joint complaints, u/s 12(1)(c) of the Act.
(vii) Many a time, it is seen that more than one joint complaint are already pending in respect of one particular housing project. There is a
view that while applying section 12(1)(c) of the Act, only one of these complaints should be allowed to continue as a lead case, and all other
complaints should be dismissed and the parties in these dismissed complaints should be directed to become parties in the lead case. Whether
the above view is correct, OR in such cases, all complaints should be clubbed and heard together.
3. In First Appeal No. 644 of 2015, the complainant booked an apartment with respondent no. 1. The allotment was cancelled by the respondent
on account of nonpayment
of the balance sale consideration. Being aggrieved, the complainant approached the concerned District Forum by way of
a complaint, seeking restoration of the flat with possession and compensation. The respondent contested the complaint and took a preliminary
objection that the District Forum did not possess the requisite pecuniary jurisdiction to entertain the complaint. The District Forum vide its order
dated 22.01.2013, noticing that the price of the apartment was Rs.46,02,653/,
held that the said Forum had no pecuniary jurisdiction to entertain the
complaint. The appellant then approached the concerned State Commission by way of a fresh Consumer Complaint. The State Commission
however, took the view that if the grievance pertains to a deficiency in service, the complainant has to assess the deficiency in the service availed by
him and the value of the flat is not to be taken into consideration while deciding whether the said Commission had pecuniary jurisdiction to hear the
complaint or not. Noticing that the complainant had claimed Rs.10,00,000/as
compensation, the complaint was dismissed. Being aggrieved, the
complainant has approached this Commission by way of the aforesaid appeal.
Vide order dated 11.03.2016, passed in the aforesaid appeal, Bench No.1 of this Commission, noticing a divergence of opinion amongst various
Benches of this Commission, on the issue of pecuniary jurisdiction, referred the said issue raised in the aforesaid appeal, to a larger Bench. The
aforesaid issue however, is subsumed in issue no. 1 referred to the larger Bench in First Appeal No. 166 of 2016.
4. Section 12(1) of the Consumer Protection Act reads as under:
(1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided
may be filed with a District Forum by(
a) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be
provided;
(b) any recognized consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or
service provided or agreed to be provided is a member of such association or not;
(c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on
behalf of, or for the benefit of, all consumers so interested; or
(d) the Central or the State Government, as the case may be, either in its individual capacity or as a representative of interests of the
consumers in general.
5. Section 13(6) of the Consumer Protection Act reads as under:
(6) Where the complainant is a consumer referred to in subclause
(iv) of clause (b) of subsection
(1) of section 2, the provisions of rule 8
of Order I of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall apply subject to the modification that every reference
therein to a suit or decree shall be construed as a reference to a complaint or the order of the District Forum thereon.
Section 2(1)(b) of the Consumer Protection Act reads as under:
(b) “complainant” means—
(i) a consumer; or
(ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or
(iii) the Central Government or any State Government; or
(iv) one or more consumers, where there are numerous consumers having the same interest;
(v) in case of death of a consumer, his legal heir or representative;] who or which makes a complaint;
6. Order I of Rule 8 of the Code of Civil Procedure which finds reference in Section 13(6) of the Consumer Protection Act, reads as under:
8. One person may sue or defend on behalf of all in same interest.(
1) Where there are numerous persons having the same interest in one suit,—
(a) one or more of such persons may, with the permission of the court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all
persons so interested;
(b) the court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons
so interested.
(2) The court shall, in every case where a permission or direction is given under subrule
(1), at the plaintiff’s expense, give notice of the
institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such
service is not reasonably practicable, by public advertisement, as the court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under subrule
(1), may apply to the court to be made a
party to such suit.
(4) No part of the claim in any such suit shall be abandoned under subrule
(1), and no such suit shall be withdrawn under subrule
(3) of rule 1 of
Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the court has given,
at the plaintiff’s expenses notice to all persons so interested in the manner specified in subrule
(2).
(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the court may substitute in his
place any other person having the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended,
as the case may be.
7. Section 12(1) (c) of the Consumer Protection Act when read with Order I Rule 8 of the Code of the Civil Procedure will apply if (i) the
consumers are numerous (ii) They have the same interest (iii) the necessary permission of the Consumer Forum is obtained and (iv) notice in terms
of Subrule
(2) of Rule 8 of Order I is given. It however, is not necessary that the cause of action available to all the consumers should also be the
same. What is required is sameness of the interest and not the same cause of action.
8. The scope and object of the principle embodied in Rule 8 of Order I of Code of Civil Procedure was stated as under by a FourMembers
Bench
of this Commission in Anil Textorium Pvt. Ltd. Vs. Rajiv Niranjanbhai Mehta, III (1997) CPJ 31 (NC):
“6. …The principle admitted in all Courts / Tribunals/QuasiJudicial
Authorities upon questions affecting the suitor’s person and his
liberty and his property is that the rights of no man shall be decided unless he himself is present. Therefore, all persons having an interest in
the subjectmatter
are to be made parties in a suit or other proceedings but the provisions of Order I Rule 8 of the Code of Civil Procedure
has carved out an exception. It provides that where a number of persons are similarly interested in a suit one or more of them can with the
permission of the Court or on a direction given by the Court, sue or be sued on behalf of themselves and others. The provisions of this rule
have been included in the Code in public interest to avoid multiplicity of litigation and to facilitate the decision on questions; in which a large
number of persons are interested, without recourse to the ordinary procedure. These provisions are meant for the benefit and protection of
the persons who have the same interest as one who has filed the suit. The exception is adopted by the Courts to avoid inconvenience, because
if all persons interested are made parties, there would be considerable delay and justice would be hampered.
…….. It is the existence of a sufficient community of interest among the persons on whose behalf or against whom the suit is instituted
that should be the governing factor in deciding as to whether the procedure provided in the representative suit should be adopted or not”.
8. The complainants can be one or more consumers, where there are numerous consumers having the same interest. The interest
must be common to them all or they must have a common grievance which they seek to get redressed.
………… Where all the consumers jointly interested are made parties to the complaint, it is not a representative complaint in the strict
sense of the provisions of Order I Rule 8 and no permission is necessary”.
9. The obtaining of a quasijudicial
permission is an essential condition for binding those consumers other than those actually
parities to the complaint. The Consumer FORA have to exercise a judicial discretion in granting permission to a complainant to sue in a
representative capacity having regard to the nature of the complaint and the reliefs sought”.
9. In The Chairman, Tamil Nadu Housing Board, Madras Vs. T.N. Ganapathy, Civil Appeal No. 3002 of 1983 decided on 07.02.1990, a
number of persons, including the respondent before the Hon’ble Supreme Court, were allotted residential plots by Tamil Nadu Housing Board at a
tentative price. After more than ten years, fresh demands were made by the Board, threatening dispossession of the allottees in case of nonpayment
of the said demand. A suit was then filed by the respondent, who claimed to be representing all the allottees, on the ground that the cases of all of
them were identical. The suit was contested, interalia
on the ground that a suit in a representative capacity under Order 1 Rule 8 of the Code of
Civil Procedure was not maintainable. The Trial Court and First Appellate Court upheld the maintainability of the suit but dismissed the same on
merit. The High Court however, reversed the said decisions and decreed the suit. Being aggrieved, the Board approached the Hon’ble Supreme
Court by way of a Special Leave Petition. On the maintainability of the Suit, it was contended on behalf of the appellant that since the injury
complained was in respect of separate demand of money against each of the allottees, giving rise to different causes of action, the said provision was
not applicable. It was emphasized that those, who had been served with the additional demand were interested in defeating only the demand
individually referable to each of them. It was also contended that each one of the allottees was not interested in what happens to the others and
therefore, the allottees should file separate suits. The contention however, did not find favour with the Hon’ble Supreme Court, which interalia
observed and held as under:
“We do not find any merit in the argument. The provisions of Order 1 of Rule 8 have been included in the Code in the public interest so
as to avoid multiplicity of litigation. The condition necessary for application of the provisions is that the persons on whose behalf the suit is
being brought must have the same interest. In other words either the interest must be common or they must have a common grievance which
they seek to get redressed. In Kodia Goundar vs. Velandi Goundar, ILR 1955 Mad. 339, a Full Bench of the Madras High Court observed that
on the plain language of Order 1, Rule 8, the principal requirement to bring a suit within that Rule is the sameness of interest of the numerous
person on whose behalf or for whose benefit the suit is instituted. The Court, while considering whether leave under the Rule should be
granted or not, should examine whether there is sufficient community of interest to justify the adoption of the procedure provided under the
Rule. The object for which this provision is enacted is really to facilitate the decision of questions, in which a large number of persons are
interested, without recourse to the ordinary procedure. The provision must, therefore, receive an interpretation which will subserve the object
for its enactment. There is no words in the Rule to limit its scope to any particular category of suits or to exclude a suit in regard to a claim
for money or for injunction as the present one”.
“It is true that each of the allottees is interested individually in fighting out the demand separately made or going to be made on him
and, thus, separate causes of action arise in the case, but, that does not make Order 1, Rule 8 inapplicable. Earlier there was some doubt
about the Rule covering such a case which now stands clarified by the Explanation introduced by the CPC (Amendment) Act, 1976, which
reads as follows:
Explanation – For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit,
it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit,
they sue or are sued, or defend the suit, as the case may be.
The objects and reasons for the amendment were stated below:
OBJECTS AND REASONS: Clause 55; SubClause
(iv), Rule
8 of Order 1 deals with representative suits. Under this rule, where
there are numerous persons having the same interest in one suit, one or more of them may, with permission of the Court, sue or be
sued, on behalf of all of them. The rule has created a doubt as to whether the party representing others should have the same cause of
action as the persons represented by him. The rule is being substituted by a new rule and an explanation is being added to clarify that
such persons need not have the same cause of action.
There is, therefore, no doubt that the persons who may be represented in a suit under Order 1, Rule 8 need not have the same cause of
action. The trial court in the present case was right in permitting the respondent to sue on behalf of all the allottees of Ashok Nagar”.
10. Since by virtue of Section 13(6) of the Consumer Protection Act, the provisions of the Order 1 Rule 8 of CPC apply to the consumer
complaints filed by one or more consumers where there are numerous consumers having the same interest, the decision of the Hon’ble Supreme
Court in Tamil Nadu Housing Board (supra) would squarely apply, while answering the reference. The purpose of giving a statutory recognition to
such a complaint being to avoid the multiplicity of litigation, the effort should be to give an interpretation which would sub serve the said objective,
by reducing the increasing inflow of the consumer complaints to the Consumer Forums. The reduction in the number of consumer complaints will
be cost effective not only for the consumers but also for the service provider.
11. Reference dated 24.5.2016
Issue No. (i)
As held by the Hon’ble Supreme Court in Tamil Nadu Housing Board (supra), the interest of the persons on whose behalf the claim is brought must
be common or they must have a common grievance which they seek to get addressed. The defect or deficiency in the goods purchased, or the
services hired or availed of by them should be the same for all the consumers on whose behalf or for whose benefit the complaint is filed. Therefore,
the oneness of the interest is akin to a common grievance against the same person. If, for instance, a number of flats or plots in a project are sold by
a builder / developer to a number of persons, he fails to deliver possession of the said flats/plots within the time frame promised by him, and a
complaint is filed by one or more such persons, either seeking delivery of possession of flats / plots purchased by them and other purchasers in the
said project, or refund of the money paid by them and the other purchasers to the developer / builder is sought, the grievance of such persons being
common i.e. the failure of the builder / developer to deliver timely possession of the flats/plots sold to them, they would have same interest in the
subject matter of the complaint and sufficient community of interest to justify the adoption of the procedure prescribed in Order 1 Rule 8 of the
Code of Civil Procedure, provided that the complaint is filed on behalf of or for the benefit of all the persons having a common grievance against the
same developer / builder, and identical relief is sought for all such consumers.
The primary object behind permitting a class action such as a complaint under Section 12(1)(c) of the Consumer Protection Act being to facilitate the
decision of a consumer dispute in which a large number of consumers are interested, without recourse to each of them filing an individual complaint,
it is necessary that such a complaint is filed on behalf of or for the benefit of all the persons having such a community of interest. A complaint on
behalf of only some of them therefore will not be maintainable. If for instance, 100 flat buyers / plot buyers in a project have a common grievance
against the Builder / Developer and a complaint under Section 12(1)(c) of the Consumer Protection Act is filed on behalf of or for the benefit of say
10 of them, the primary purpose behind permitting a class action will not be achieved, since the remaining 90 aggrieved persons will be compelled
either to file individual complaints or to file complaints on behalf of or for the benefit of the different group of purchasers in the same project. This,
in our view, could not have been the Legislative intent. The term ‘persons so interested’ and ‘persons having the same interest’ used in Section 12(1)
(c) mean, the persons having a common grievance against the same service provider. The use of the words “all consumers so interested’ and “on
behalf of or for the benefit of all consumers so interested”, in Section 12(1)(c) leaves no doubt that such a complaint must necessarily be filed on
behalf of or for the benefit of all the persons having a common grievance, seeking a common relief and consequently having a community of interest
against the same service provider.
Sub rule (2) of Rule 8 of Order I of the Code of Civil Procedure mandates the Court to give notice of the institution of the suit /complaint to all
the persons “so interested”, meaning thereby to the persons having the same interest, i.e. a common grievance, on whose behalf or for whose benefit
the complaint is instituted. Notice can be either by way of personal service or where personal service is not reasonably practicable, by way of a
public advertisement. The aforesaid provision clearly envisages institution of a suit / complaint on behalf or for the benefit of not only those who
approach the Court/Forum but also on behalf of or for the benefit of the persons other than the plaintiffs / complainants, but having the same
grievance. Had the Legislative intent been to permit such a complaint only on behalf of the persons deciding to approach the Court/ Forum, there
could be no occasion for requiring the service of notice in the aforesaid manner, since there can be no question of serving any notice on those who
are already before the Court/Forum.
Sub Rule (5) of Rule 8 of Order I enables the Court to substitute the name of any person having same interest in the suit as plaintiff where it
finds that the person suing the suit is not proceeding with due diligence in the suit. The aforesaid power given to the Court also indicates that a suit
in terms of order 1 Rule 8 of the Code of Civil Procedure commonly termed as a class suit is intended on behalf or for the benefit of all the persons
having a common grievance against the same party and seeking the same relief not on behalf of or for the benefit of only some of them.
12. Issue No. (ii) and (iii)
Section 21 of the Consumer Protection Act, to the extent it is relevant provides that this Commission shall have jurisdiction to entertain
complaints where the value of the goods or services and compensation, if any, claimed exceeds Rs.1.00 crore. Therefore, what has to be seen, for the
purpose of determining the pecuniary jurisdiction, is the value of the goods or services and the amount of the compensation claimed in the
complaint. If the aggregate of (i) the value of the goods or services and (ii) the compensation claimed in the complaint exceeds Rs.1.00 crore, this
Commission would have pecuniary jurisdiction to entertain the complaint. Similarly, if the aggregate of the value of (i) the goods or services and (ii)
compensation, if any, claimed in the complaint exceeds Rs.20.00 lacs but does not exceed Rs.1.00 Crore, the State Commission would have the
pecuniary jurisdiction to entertain the complaint. Since a complaint under Section 12(1)(c) of the Consumer Protection Act can be filed only where
there are numerous consumers having the same interest and it has to be filed on behalf of or for the benefit of all the consumers so interested i.e. all
of the numerous consumers having the same interest, it is the aggregate of the value of the goods purchased or services hired or availed of, by all
those numerous consumers and the total compensation, if any, claimed for all those numerous consumers, which would determine the pecuniary
jurisdiction of this Commission. If the aggregate of the value of the goods purchased or the services hired or availed of by all the consumers having
the same interest and the total compensation, if any, claimed for all of them comes to more than Rs.1.00 crore, the pecuniary jurisdiction would rest
with this Commission alone. The value of the goods purchased or the services hired or availed of and the quantum of compensation, if any, claimed
in respect of the one individual consumer therefore, would be absolutely irrelevant for the purpose of determining the pecuniary jurisdiction in such a
complaint. In fact, this issue is no more res Integra in view of the decision of a FourMembers
Bench of this Commission in Public Health
Engineering Department Vs. Upbhokta Sanrakshan Samiti I (1992) CPJ 182 (NC). In the above referred case, a complaint was preferred,
seeking to recover compensation for alleged negligence on the part of the petitioner which had resulted in a large number of persons getting infected
by Jaundice. The names of 46 such persons were mentioned in the complaint but it was alleged that there were thousands of other sufferers who
were similarly placed and that complaint was filed on behalf of all of them. The complainant had sought compensation of Rs.20,000/for
every
student victim, Rs.10,000/for
every general victim and Rs.1,00,000/for
the legal representatives of those who had died due to Jaundice. The
District Forum held that it had no pecuniary jurisdiction to adjudicate upon the complaint. The State Commission took the view that the District
Forum has to go by the value as specified for each consumer. Rejecting the view taken by the State Commission, this Commission interalia
held as
under:
“5. In our opinion this proposition is clearly wrong since under the terms of Section 11 of the Act the pecuniary jurisdiction of the
District Forum would depend upon the quantum of compensation claimed in the petition. The view expressed by the State Commission is not
based on a correct understanding or interpretation of Section 11. On the plain words used in Section 11 of the Act, the aggregate quantum of
compensation claimed in the petition will determine the question of jurisdiction and when the complaint is filed in a representative capacity
on behalf of several persons, as in the present case, the total amount of compensation claimed by the representative body on behalf of all the
persons whom it represents will govern the valuation of the complaint petition for purposes of jurisdiction”.
6. The quantum of compensation claimed in the petition being far in excess of Rs.1.00 lac the District Forum was perfectly right in
holding that it had no jurisdiction to adjudicate upon the complaint. The reversal of the said order by the State Commission was contrary to
law”.
Therefore, irrespective of the value of the goods purchased or the service hired and availed of by an individual purchaser / allottee and the
compensation claimed in respect of an individual purchaser / allottee, this Commission would have the pecuniary jurisdiction to entertain the
complaint if the aggregate of the value of the goods purchased or the services hired or availed of by the numerous consumers on whose behalf or for
whose benefit the complaint is filed and the total compensation claimed for all of them exceeds Rs.1.00 crore.
Issue No. (iv)
13. As noted earlier, what is required for the applicability of Section 12(1)(c) of the Consumer Protection Act read with Order I Rule 8 of the Code
of Civil Procedure is the sameness of the interest i.e. a common grievance of numerous persons which is sought to get redressed through a
representative action. Therefore, so long as the grievance of the consumers is common and identical relief is claimed for all of them, the cost, size,
area of the flat / plot and the date of booking / allotment / purchase, would be wholly immaterial. For instance, if a builder / developer has sold 100
flats in a project out of which 25 are threebed
room flats, 25 are twobed
room flats and 50 are onebed
room flats and he has failed to deliver timely
possession of those flats, all the allottees irrespective of size of their respective flats / plots, the date of their respective purchase and the cost agreed
to be paid by them have a common grievance i.e. the failure of the builder/ developer to deliver possession of the flat / plot sold to them and a
complaint filed for the benefit of or on behalf of all such consumers and claiming same relief for all of them, would be maintainable under Section
12(1)(c) of the Consumer Protection Act. The relief claimed will be the same / identical if for instance, in a case of failure of the builder to deliver
timely possession, refund, or possession or in the alternative refund with or without compensation is claimed for all of them. Different reliefs for one
or more of the consumers on whose behalf or for whose benefit the complaint is filed cannot be claimed in such a complaint.
14. Reference order dated 11.8.2016
Issue No. (i)
It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it’s the value of the goods or services and the
compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the
pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer.
Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary
jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation,
if any, claimed in the complaint by him, exceeds Rs. 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain
the complaint. For instance if a person purchases a machine for more than Rs.1.00 crore, a manufacturing defect is found in the machine and the cost
of removing the said defect is Rs.10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if
any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum. Similarly, if for instance, a house is sold
for more than Rs.1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lacs, the complaint would have
to be filed before this Commission, the value of the services itself being more than Rs.1.00 crore.
Issue No. (ii)
In Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, the Hon’ble Supreme Court interalia
observed and held as under:
“However the power to and duty to award compensation does not mean that irrespective of facts of the case compensation can be
awarded in all matters at a uniform rate of 18% per annum. As seen above what is being awarded is compensation i.e. recompense for the
loss or injury.
… Along with recompensing the loss the Commission / Forum may also compensate for harassment / injury both mental and physical.
Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause.
That compensation cannot be uniform and can best of illustrated by considering case where possession is being directed to be delivered
and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for
harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is
getting. But in cases where monies are being simply returned then the party is suffering a loss inasmuch as he had deposited the money in the
hope of getting a flat / plot. He is being deprived of that flat / plot. He has been deprived of the benefit of escalation of the price of that flat /
plot. Therefore, the compensation in such cases would necessarily have to be higher”.
The Hon’ble Supreme Court thus recognized that the interest to the flat buyers is paid by way of compensation. In fact, though the Consumer
Protection Act, authorises the Consumer Forum to award compensation, no specific powers to award interest has been conferred upon it. Therefore,
in view of the provisions contained in Sections 21, 17 and 11 of the Consumer Protection Act, the amount of the interest, which can be paid as
compensation, must necessarily be taken into account for determining the pecuniary jurisdiction.
Issue No. (iii)
Conflicting orders have been passed by the Benches of this Commission as to cut off date for determining the value of the goods or the services, as
the case may be, in terms of Section 21, 17 and 11 of the Consumer Protection Act. One view is that the value of the goods or services means the
consideration agreed to be paid by the consumer for the goods purchased or the services hired and availed of, whereas the other view is that the value
of the goods or services as the case may be, for the purpose of determining the pecuniary jurisdiction of the Consumer Forum should be the market
value of the goods or services on the date of institution of the consumer complaint. Though, the use of the word “value” in the above referred
Sections, tends to suggest that it is the market price of the goods or the services, as the case may be, which when added to the amount of
compensation, if any, claimed in the complaint, should determine the pecuniary jurisdiction of the Consumer Forum, on a deeper consideration we
are of the view that it is the price of the goods or the services as the case may be agreed to be paid by the consumer which would be relevant for the
purpose of determining the pecuniary jurisdiction. If the market price of the goods or the services as the case may be, on the date of institution of the
complaint is to determine the pecuniary jurisdiction, the market price being dynamic and ever fluctuating, this would create an unending uncertainty
with respect to the Consumer Forum before which the complaint is to be instituted. For instance, if there are 10 flat buyers in the same project,
identical consideration is agreed to be paid by them to the service provider, one of them decides to approach the Consumer Forum at a time when the
prevailing market value of the flat is more than Rs.1.00 crore, the complaint will have to be instituted before this Commission. If the prevailing
market value of the flat at the time when another flat buyer who agreed to pay the same consideration to the service provider decides to approach the
Consumer Forum is less than Rs.1.00 crore, he will have to approach the concerned State Commission. Therefore, there will be two separate Forums
dealing with the complaints of these two consumers who agreed to pay same price for the flat purchased by them. In one case, the order passed in
the consumer complaint would be challenged before the Hon’ble Supreme Court whereas in the other case, it would be challenged before this
Commission. Creating such an anomalous situation, in our view, could not have been the legislative intent.
Moreover, if the pecuniary jurisdiction of the Consumer Forum varies with the market price of the goods or services at the time the complaint is
instituted; there is a likelihood of the valuation given by the complainant, being seriously challenged by the opposite party. If this happens, the
Consumer Forum will first have to determine the market price of the goods or services as the case may be, at the time of institution of the complaint.
Such a determination is likely to be a time consuming process, besides being incapable of determination by way of a summary procedure, which the
Consumer Forums are adopting. Such an interpretation therefore, is likely to be counterproductive and result in an inordinate delay in the disposal of
the consumer complaint. On the other hand, no such difficulty is likely to arise if the sale consideration agreed to be paid by the consumer is taken as
the value of the goods or services. In that case, the amount of compensation as claimed in the complaint needs to be added to the agreed
consideration and the aggregate of the consideration and the compensation claimed in the complaint would determine the pecuniary jurisdiction of
the Consumer Forum.
Issue No. (iv)
In view of the answer to the issues No. (ii) and (iii) of the reference order dated 24.5.2016, it is the aggregate value of the goods purchased or
the services hired or availed of by all the consumers on whose behalf or for whose benefit the complaint is filed which, added to the total amount of
compensation, if any, claimed for all such consumers determines the pecuniary jurisdiction of the Consumer Forum. The value of the goods
purchased or the services hired or availed of by an individual consumer and the compensation claimed in respect of an individual consumer would
have no bearing on such determination.
Issue No. (v) and (vi)
It is evident from a bare perusal of Section 12(1)(c) of the Consumer Protection Act that a complaint under the aforesaid provision can be filed
only by one or more consumers. The term ‘consumer’ has been defined in Section 2(1)(d) of the Consumer Protection Act to mean any person who
buys any goods for a consideration or who hires or avails of any services for a consideration and includes the user other than the purchaser of the
goods and beneficiary other than the person hiring or availing of the services for consideration, with the permission of the person purchasing the
goods or hiring or availing of the services, as the case may be. Therefore, a Cooperative Society or a group of Cooperative Societies is not entitled to
file a complaint under Section 12(1)(c) of the Consumer Protection Act unless the cooperative society itself is a consumer as defined in Section 2(1)
(d) of the Consumer Protection Act. Similarly, no group of Firms, Society or Association can file such a complaint unless such group of Firms,
Society or Association itself is a consumer as defined in Section 2(1)(d) of the Consumer Protection Act. No person who does not qualify as a
consumer in terms of Section 2(1)(d) of the Consumer Protection Act, can be party to a complaint under Section 12(1)(c) of the Act nor can he be
amongst the persons on whose behalf or for whose benefit such a complaint is filed. In fact, a person who is not a consumer, as defined in Section
2(1)(d) of the Act, can invoke the jurisdiction of a Consumer Forum, by way of a consumer complaint.
Issue No. (vii)
As noted earlier, a complaint under Section 2(1)(c) of the Consumer Protection Act read with Order I Rule 8 of the Code of Civil Procedure
can be filed where there are numerous consumers having the same interest i.e. a common grievance against the same person and the complaint is
filed on behalf of or for the benefit of all such numerous consumers, and seeking same relief for all of them. Therefore, the Act does not envisage
more than one complaints on behalf of such consumers, in a representative character. The decision in one complaint filed in a representative capacity
will bind all the consumers on whose behalf or for whose benefit the complaint is filed, as provided in Order I Rule 8 (6) of the Code of Civil
Procedure. Therefore, once a complaint, in a representative capacity is filed under Section 12(1)(c) of the Consumer Protection Act, and the requisite
permission for filing such a complaint is given by the Consumer Forum, a second complaint, in a representative capacity under Section 12(1)(c) of
the Consumer Protection Act would not be maintainable by or on behalf of consumers having the same interest and seeking the same relief and if
filed, is liable to be dismissed with liberty to seek impleadment in the complaint already instituted in a representative capacity with the requisite
permission of the Consumer Forum. Since a complaint in a representative capacity can be filed only on behalf of all the consumers having the same
interest i.e. a common grievance and seeking the same relief against the same person, an individual complaint expressing such a grievance will not be
maintainable and the only recourse available to a consumer having the same grievance is to seek impleadment in the complaint filed in the
representative capacity. If such individual complaints are allowed even after the requisite permission in terms of Section 12(1)(c) is granted, that
would be in contradiction of Order I Rule 8 (6) of the Code of Civil Procedure which makes an order passed in a suit / complaint filed in a
representative capacity binding on all the persons on whose behalf or for whose benefit the suit / complaint is filed.
However, as far as the individual complaints instituted prior to grant of the requisite permission under Section 12(1)(c) of the Consumer
Protection Act is concerned, they having been validly instituted, such complainants cannot be compelled to withdraw their individual complaint and
become a party to the subsequently instituted complaint filed in a representative capacity. They having already taken recourse to the legal
proceedings, the complaint instituted in a representative capacity, will not be deemed to have been instituted on behalf of or for the benefit of such
complainants even if their grievance is identical to the grievance expressed in the complaint instituted in a representative character. They having
already approached the Consumer Forum for the redressal of their grievance, it would be difficult to say that the complaint filed in a representative
character was intended on their behalf or for their benefit as well. In fact, there may be a consumer having an identical grievance, who has already
approached the Consumer Forum by way of an individual complaint and whose complaint has already been adjudicated before the requisite
permission under Section 12(1)(c) of the Consumer Protection Act is accorded in a complaint filed in a representative capacity. Since, there cannot
be more than one adjudication in respect of the same grievance of the same person, it cannot be said that the complaint instituted in a representative
capacity was filed on his behalf or for his benefit as well. Therefore, the consumers, who are already before the Consumer Forum when the requisite
permission, in terms of Section 12(1)(c) of the Consumer Protection Act is accorded, will be out of the purview of the said complaint. Since it
cannot be said that the complaint in the representative capacity was filed on their behalf or for their benefit as well, the order passed in such a
complaint will not be binding on them. If however, such persons want to withdraw their pending complaints and join the complaint instituted in the
representative capacity, there is no bar on their adopting such a course of action. The decision, of course, would rest with them whether to continue
with the individual complaint already instituted by them or to withdraw the said complaint and become party to the complaint filed in a
representative capacity.
In one of the written submissions, it is contended that since a complaint in a representative capacity can be filed only on behalf of all the
consumer having the same interest, such a complaint will not be maintainable where one or more individual complaints, expressing such a grievance
are already pending. We however, are unable to accept the contention. No such restriction finds place in Section 12(1)(c) of the Consumer
Protection Act or in Order I Rule 8 of the Code of Civil Procedure. Accepting such a contention would defeat the very purpose of allowing such a
suit/complaint since every consumer would be compelled to file an individual complaint leading to multiplicity of proceedings. Such an
interpretation would not serve the cause either of the consumer or of the service provider.
15. For the reasons stated hereinabove, the references are answered as under:
Reference dated 24.5.2016
Issue No. (i)
A complaint under Section 12 (1)(c) of the Consumer Protection Act can be filed only on behalf of or for the benefit of all the consumers,
having a common interest or a common grievance and seeking the same / identical relief against the same person. Such a complaint however, shall
not be deemed to have been filed on behalf of or for the benefit of the consumers who have already filed individual complaints before the requisite
permission in terms of Section 12(1)(c) of the Consumer Protection Act is accorded.
Issue No. (ii), (iii) and (iv)
A complaint under Section 12 (1)(c) of the Consumer Protection Act is maintainable before this Commission where the aggregate of the value
of the goods purchased or the services hired or availed of by all the consumers on whose behalf or for whose benefit the complaint is instituted and
the total compensation, if any, claimed in respect of all such consumers exceeds Rs.1.00 crore. The value of the goods purchased or the services
hired and availed of by an individual consumer or the size, or date of booking / allotment / purchase of the flat would be wholly irrelevant in such a
complaint where the complaint relates to the sale / allotment of several flats / plots in the same project / building.
Reference dated 11.8.2016
Issue No. (i)
It is the value of the goods or services, as the case may be, and not the value or cost of removing the deficiency in the service which is to be
considered for the purpose of determining the pecuniary jurisdiction.
Issue No. (ii)
The interest has to be taken into account for the purpose of determining the pecuniary jurisdiction of a Consumer Forum.
Issue No. (iii)
The consideration paid or agreed to be paid by the consumer at the time of purchasing the goods or hiring or availing of the services, as the
case may be, is to be considered, along with the compensation, if any, claimed in the complaint, to determine the pecuniary jurisdiction of a
Consumer Forum.
Issue No. (iv)
In a complaint instituted under Section 12(1)(c) of the Consumer Protection Act, the pecuniary jurisdiction is to be determined on the basis of
aggregate of the value of the goods purchased or the services hired or availed by all the consumers on whose behalf or for whose benefit the
complaint is instituted and the total compensation claimed in respect of such consumers.
Issue No. (v) & (vi)
A complaint under Section 12(1)(c) of the Consumer Protection Act can be instituted only by one or more consumers, as defined in Section
2(1)(d) of the Consumer Protection Act. Therefore, a group of Cooperative societies, Firms, Association or other Society cannot file such a
complaint unless such society etc. itself is a consumer as defined in the aforesaid provision.
Issue No. (vii)
More than one complaints under Section 12(1)(c) of the Consumer Protection Act are not maintainable on behalf of or for the benefit of
consumers having the same interest i.e. a common grievance and seeking the same / identical against the same person. In case more than one such
complaints have been instituted, it is only the complaint instituted first under Section 12(1)(c) of the Consumer Protection Act, with the requisite
permission of the Consumer Forum, which can continue and the remaining complaints filed under Section 12(1)(c) of the Consumer Protection Act
are liable to be dismissed with liberty to join in the complaint instituted first with the requisite permission of the Consumer Forum.
The individual complaints instituted before grant of the requisite permission under Section 12(1)(c) of the Consumer Protection Act can
continue despite grant of the said permission but it would be open to such complainants to withdraw their individual complaints and join as parties to
the complaint instituted in a representative character. However, once the requisite permission under Section 12(1)(c) of the Consumer Protection Act
is granted, an individual complaint, expressing the same grievance will not be maintainable and the only remedy open to a consumer having the same
grievance is to join as a party to the complaint instituted in a representative character.
16. Before parting with the references, we would like to emphasise that considering the binding effect of a decision rendered in a complaint under
Section 12(1)(c) of the Consumer Protection Act, on all the consumers, on whose behalf or for whose benefit such a complaint is filed, even if they
chose not to join as a party to the complaint, it is necessary to exercise due care and caution while considering such a complaint even at the initial
stage and to grant the requisite permission, only where the complaint fulfils all the requisite conditions in terms of Section 12(1)(c) of the Consumer
Protection Act read with Order I Rule 8 of the Code of Civil Procedure; as interpreted in this reference. It would also be necessary for the Bench to
either give individual notices or an adequate public notice of the institution of the complaint to all the persons on whose behalf or for whose benefit
the complaint is instituted. Such a notice should disclose interalia
(i) the subject matter of the complaint including the particulars of the project if
the complaint relates to a housing project / scheme, (ii) the class of persons on whose behalf or for whose benefit the complaint is filed, (iii) the
common grievance sought to get redressed through the class action, (iv) the alleged deficiency in the services and (v) the reliefs claimed in the
complaint.
It will also be necessary to hear the opposite party, before taking a final view on the grant or otherwise of the permission required in terms of
Section 12(1)(c) of the Consumer Protection Act.
17. The Complaint and the Appeals, in which references were made, be listed before the appropriate Benches, for further proceedings, in the light
of the answer to the reference.

Jd.K. Jain
President
......................
Jv.K. Jain
Member
......................
Dr. B.C. Gupta
Member

60.    The requirement of pre-deposit of any amount at the first instance of proceedings is not to be found in any of the decisions cited on behalf of the respondent. All these cases relate to appeals. The amount of deposit of 75% of the demand, at the initial proceeding itself sounds unreasonable and oppressive more particularly when the secured assets/the management thereof along with the right to transfer such interest has been taken over by the secured creditor or in some cases property is also sold. Requirement of deposit of such a heavy amount on basis of one sided claim alone, cannot be said to be a reasonable condition at the first instance itself before start of adjudication of the dispute. Merely giving power to the Tribunal to waive or reduce the amount, does not cure the inherent infirmity leaning one- sidedly in favour of the party, who, so far has alone been the party to decide the amount and the fact of default and classifying the dues as NPAs without participation/association of the borrower in the process. Such an onerous and oppressive condition should not be left operative in expectation of reasonable exercise of discretion by the concerned authority. Placed in a situation as indicated above, where it may not be possible for the borrower to raise any amount to make the deposit, his secured assets having already been taken possession of or sold, such a rider to approach the Tribunal at the first instance of proceedings, captioned as appeal, renders the remedy illusory and nugatory.

61.    In the case of Seth Nandlal (supra), while considering the question of validity of pre-deposit before availing the right of appeal the Court held "....right of appeal is a creature of the statute and while granting the right the legislature can impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory. ...." (emphasis supplied). While making said observation this Court referred to the decision in the case of Anant Mills Co. Ltd. (supra). In both the above noted decisions this Court had negated the plea raised against pre-deposit but in the case of Seth Nandlal (supra) it was found that the condition was not so onerous since the amount sought to be deposited was meager and that too was confined to the landholding tax payable in respect of the disputed area i.e. the area or part thereof which is declared surplus by the Prescribed Authority (emphasis supplied) after leaving the permissible area to the appellant. In the above circumstances it was found that even in the absence of a provision conferring discretion on the appellate authority to waive or reduce the amount of pre- deposit, it was considered to be valid, for the two reasons indicated above. The facts of the case in hand are just otherwise.

62.    As indicated earlier, the position of the appeal under Section 17 of the Act is like that of a suit in the court of the first instance under the Code of Civil Procedure. No doubt in suits also it is permissible, in given facts and circumstances and under the provisions of the law to attach the property before a decree is passed or to appoint a receiver and to make a provision by way of interim measure in respect of the property in suit. But for obtaining such orders a case for the same is to be made out in accordance with the relevant provisions under the law. There is no such provision under the Act.

63.    Yet another justification which has been sought to be given for the requirement of deposit is that the secured assets which may be taken possession of or sold may fall short of the dues therefore such a deposit may be necessary. We find no merit in this submission too. In such an eventuality the recourse may have to be taken to sub-section 10 of Section 13 where a petition may have to be filed before the Tribunal for the purpose of making up of the short-fall.

64.    The condition of pre-deposit in the present case is bad rendering the remedy illusory on the grounds that (i) it is imposed while approaching the adjudicating authority of the first instance, not in appeal, (ii)there is no determination of the amount due as yet (iii) the secured assets or its management with transferable interest is already taken over and under control of the secured creditor (iv) no special reason for double security in respect of an amount yet to be determined and settled (v) 75% of the amount claimed by no means would be a meager amount (vi) it will leave the borrower in a position where it would not be possible for him to raise any funds to make deposit of 75% of the undetermined demand. Such conditions are not alone onerous and oppressive but also unreasonable and arbitrary. Therefore, in our view, sub-section (2) of Section 17 of the Act is unreasonable, arbitrary and violative of Article 14 of the Constitution.

65.    Shri Salve, learned senior counsel, appearing on behalf of the respondents, submits that so far it relates to the provision as contained under Section 9 of the Act, it is for the purposes of assets reconstruction. The steps as provided to be taken for the purpose, are different from those provided in Chapter III relating to enforcement of security interest contained in Section 13 of the Act. Reconstruction companies are separately registered for the purpose according to the guidelines of the Reserve Bank of India. It is for the purpose of proper management of the business of the borrower. It is aimed at continuance of the business of the company by resorting to the measure as provided under Section 9 of the Act. It is submitted that the apprehensions as expressed that the defaulting party may set up an asset reconstruction company is misconceived nor there is any substance in the submission that company in default may constitute such a company to defeat the interest of the creditor. A reconstruction company is required to be registered and the Reserve Bank of India is the authority to issue such a certificate. In the guidelines framed by the Reserve Bank of India enough safeguards have been provided to see that the persons setting up such a company are not directly or indirectly in the management of the asset reconstruction of the borrower. What is envisaged under Section 9 is, the taking over of the management of the business of the borrower company and the provisions as contained under Section 15 of the Act are referable to Section 9 and not to Section 13 of the Act. He has further submitted that the restrictions against legal remedy is relating to measures taken under Section 13 of the Act and not under Section 9 of the Act for reconstruction of the assets of a borrowing company. A reconstruction company by the method of reconstruction of the debt, manages the affair in a manner so as to revive the company and liquidate the debts to whomsoever they may be due.

66.    On behalf of the petitioners one of the contentions which has been forcefully raised is that existing rights of private parties under a contract cannot be interfered with, more particularly putting one party to an advantageous position over the other. For example, in the present case, in a matter of private contract between the borrower and the financing bank or institution through impugned legislation rights of the borrowers have been curtailed and enforcement of secured assets has been provided for without intervention of the court and above all depriving them the remedy available under the law by approaching to the civil court. Such a law, it is submitted, is not envisaged in any civilized society governed by rule of law. As discussed earlier as well, it may be observed that though the transaction may have a character of a private contract yet the question of great importance behind such transactions as a whole having far reaching effect on the economy of the country cannot be ignored, purely restricting it to individual transactions more particularly when financing is through banks and financial institutions utilizing the money of the people in general namely, the depositors in the banks and public money at the disposal of the financial institutions. Therefore, wherever public interest to such a large extent is involved and it may become necessary to achieve an object which serves the public purposes, individual rights may have to give way. Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio- economic drive of the country. The two aspects are inter- twined which are difficult to be separated. There have been many instances where existing rights of the individuals have been affected by legislative measures taken in public interest. Certain decisions which have been relied on behalf of the respondents, on the point are 1951 SCR p.292, Ramaswamy Aiyengar Vs. Kailasa Thevar. In that case by enacting the Madras Agriculturalist's Relief Act, relief was given to the debtors who were agriculturists as a class, by sealing down their debts. The validity of the Act was upheld though it affected the individual interest of creditors. In Dahya Lala Vs. Rasul Mohd.Abdul Rahim, 1963(3) SCR p.1, the tenants under the Provisions of the Bombay Tenancy Act, 1939 were given protection against eviction and they were granted the status of protected tenant, who had cultivated the land personally six years prior to the prescribed date. It was found that the legislation was with the object of improving the economic condition of the peasants and for ensuring full and efficient use of land for agricultural purpose. By a statutory provision special benefit was conferred upon the tenants in Madras city where they had put up a building for residential or non-residential purposes and were saved from eviction, it did though affect the existing rights of the landlords. See also 1963 (Supp.)1 SCR p.282, Swami Motor Transports Pvt. Ltd. Vs. Shri Sankraswamigal Mutt and Raval & co. Vs. K.G.Ramachandran, 1974 (1) SCC p.424. Similarly it is also to be found that in the case reported in 2001(5) SCC p.546 Kanshi Ram Vs. Lachhman the law granting relief to the debtors protecting their property was upheld. Also see 1978(2) SCC 1, Pathumma Vs. State of Kerala, 1977(2) SCC p.670 Fatehchand Himmatlal Vs. State of Maharashtra, 1962(1) SCR p.852, Ramdhandas Vs. State of Punjab.

67.    It is well known that in different states Rent Control legislations were enacted providing safeguards to the sitting tenants as against the existing rights of the landlords, which before coming into force of such law were governed by contract between the private parties. Therefore, it is clear that it has always been held to be lawful, whenever it was necessary in the public interest to legislate irrespective of the fact that it may affect some individuals enjoying certain rights. In the present we find that case the unrealized dues of banking companies and financial institutions utilizing public money for advances were mounting and it was considered imperative in view of recommendations of experts committees to have such law which may provide speedier remedy before any major fiscal set back occurs and for improvement of general financial flow of money necessary for the economy of the country that the impugned Act was enacted. Undoubtedly such a legislation would be in the public interest and the individual interest shall be subservient to it. Even if a few borrowers are affected here and there, that would not impinge upon the validity of the Act which otherwise serves the larger interest.

68.    The main thrust of the petitioners as indicated in the earlier part of this judgment to challenge the validity of the impugned enactment is that no adjudicatory mechanism is available to the borrower to ventilate his grievance through an independent adjudicatory authority. Access to the justice, it is submitted, is hall-mark of our system. Section 34 of the Act bars the jurisdiction of the civil courts to entertain a suit in matters of recovery of loans. The remedy of appeal available under the Act as contained in Section 17 can be availed only after measures have already been taken by the secured creditor under sub-section (4) of Section 13 of the Act which includes sale of the secured assets, taking over its management and all transferable rights thereto. Virtually it is no remedy at all also in view of the onerous condition of deposit of 75% of the claim of the secured creditor. Before filing an appeal under Section 17 of the Act, decision is to be taken in respect of all matters by the bank or financial institution itself which can hardly be said to be an independent agency rather they are a party to the transaction having unilateral power to initiate action under sub-section (4) of Section 13 of the Act. So far remedy under Article 226 of the Constitution of India is concerned, the submission is that it may not always be available since the dispute may be only between two private parties, the banking companies, co- operative Banks or financial institutions, foreign banks, some of them may not be authorities within the meaning of Article 12 of the Constitution of India against whom a writ petition could be maintainable. Thus the position that emerges is that a borrower is virtually left with no remedy. Where access to the court is prohibited and no proper adjudicatory mechanism is provided such a law is unconstitutional and cannot survive. In support of the aforesaid contentions besides others, reliance has particularly been placed upon a case reported in (1997) 3 SCC p.261, L.Chandrakumar vs. Union of India & Ors. and 2003(6) SCC 675, Surya Dev Rai vs. Ram Chander Rai & Ors.. A reference has also been made to the decision of Kihoto Hollohan (supra). In the case of L.Chandra Kumar (supra) it is held, some adjudicatory process through an independent agency is essential for determining the rights of the parties more particularly when the consequences which flow from the offending Act defeat the civil rights of a party.

69.    On behalf of respondents time and again stress has been given on the contention that in a contractual matter between the two private parties they are supposed to act in terms of the contract and no question of compliance with the principles of natural justice arises nor the question of judicial review of such actions need to be provided for. However, at the very outset, it may be pointed that the contract between the parties as in the present cases, is no more as private as sought to be asserted on behalf of the respondents. If that was so in that event parties would be at liberty to seek redressal of their grievances on account of breach of contract or otherwise taking recourse to the normal process of lawas available, by approaching the ordinary civil courts. But we find that a contract which has been entered into between the two private parties, in some respects has been superseded by the statutory provisions or it may be said that such contracts are now governed by the statutory provisions relating to recovery of debts and bar of jurisdiction of the civil court to entertain any dispute in respect of such matters. Hence, it cannot be pleaded that the petitioners cannot complaint of the conduct of the banking companies and financial institutions for whatever goes in between the two is absolutely a matter of contract between private parties, therefore, no adjudication may be necessary.

70.    At this stage we may also take note of the arguments raised on behalf of the petitioners that in the present day world concept of lender's liability has also developed which cannot be ignored. We have already referred to certain facts in relation to this point that at one stage a statement was made at the floor of the House that it was necessary to legislate on lender's liability. No such Bill though seems to have been introduced. Certain decisions pertaining to the liability of the lenders have been cited on behalf of the petitioners and a few others by the learned counsel for the respondents. Learned counsel for the petitioners emphatically submitted that the Act is loaded against the borrowers and no provision regarding the liability of the lenders has been made in the Act. Given below are some of the cases on the point cited by the parties:

KMC Co. Vs. Irving Trust Co., 757 F2d752 (6th Cir.1985), Palisades Properties, Inc. Vs. Brunetti, 44 NJ 117, 207 A2d 522, 531 (1965).

71.    Arguments have been advanced as to how far principles of lender's liability are applicable. Whatever be the position, however, it cannot be denied that the financial institutions namely, the lenders owe a duty to act fairly and in good faith. There has to be a fair dealing between the parties and the financing companies/institutions are not free to ignore performance of their part of the obligation as a party to the contract. They cannot be free from it. Irrespective of the fact as to whatever may have been held in decisions of some American courts, in view of the facts and circumstances and the terms of the contract and other details relating to those matter, that may or may not strictly apply, nonetheless even in absence of any such decisions or legislation, it is incumbent upon such financial institutions to act fairly and in good faith complying with their part of obligations under the contract. This is also the basic principle of concept of lender's liability. It cannot be a one-sided affair shutting out all possible and reasonable remedies to the other party, namely borrowers and assume all drastic powers for speedier recovery of NPAs. Possessing more drastic powers calls for exercise of higher degree of good faith and fair play. The borrowers cannot be left remediless in case they have been wronged against or subjected to unfair treatment violating the terms and conditions of the contract. They can always plead in defence deficiencies on the part of the banks and financial institutions.

72.    Shri Soli J.Sorabjee, learned Attorney General submits that basically there is a presumption in favour of the constitutionality of an enactment and unless it is found that a provision enacted results in palpably arbitrary consequences, courts refrain from declaring the law invalid as legislated by the legislature. In support of this contention, he has relied upon a decision of this Court reported in (1981) 4 SCC p.675, R.K.Garg V. Union of India. He has particularly drawn our attention to the following passage :

"The first rule is that there is always a presumption in favour of the constitutionality of a statute .... This rule is based on the assumption, judicially recognized and accepted, that the legislature understands and correctly appreciates the needs of its own people, its laws are directed to problems made manifest by experience ... Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method ... There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid. The courts cannot ..... be converted into tribunals for relief from such crudities and inequities..... The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provisions. ....The Court must defer to legislative judgment in matters relating to social and economic policies and must not interference, unless the exercise of legislative judgment appears to be palpably arbitrary"

(emphasis supplied).

73.    The following observations have also been referred as made in Bhavesh D.Parish & Ors. v. Union of India & Anr., 2000 (5) SCC 471 at 486 :

"......it is necessary that while dealing with economic legislations, this Court, while not jettisoning its jurisdiction to curb arbitrary action or unconstitutional legislation, should interfere only in those few cases where the view reflected in the legislation is not possible to be taken at all"

(emphasis supplied)

74.    A reference has also been made for similar observations to the cases reported in 1980 (4) SCC p.507 at 513-514, Srinivas Enterprises v. Union of India and 1967 (1) SCR p.15 at p.36, Jalan Trading V. Union of India. While referring to the observations made in a case reported in 1962 (3) SCR p.786 at p.829-30, the Collector of Customs, Madras V. Nathella Samapathu Chetty, it is submitted that the intent of the Parliament shall not be defeated merely for the reason that it may operate a bit harshly on a small section of public where it may be necessary to make such provisions of achieving the desired objectives to ensure that the nefarious activities of smuggling etc. had to be necessarily curbed. In Fatehchand Himmatlal (supra) where debts of the agriculturists were wiped of, this Court observed : "Every cause claims its martyr and if the law, necessitated by practical considerations, makes generalizations which hurt a few, it cannot be helped by the Court. Otherwise, the enforcement of the Debt Relief Act will turn into an enquiry into scrupulous and unscrupulous creditors, frustrating through endless litigation, the instant relief to the indebted which is the promise of the legislature." [See p.689 para 44] Yet in another decision referred to reported in 1961 (3) SCR p.135, Kishanchand Arora Vs. Commissioner of Police, it has been held that absence of appeal does not necessarily render the legislation unreasonable. Provision for appeal is not an absolute necessity. For same propositions a reference has also been made to Chinta Lingam & Ors. v. Government of India & Ors., 1970 (3) SCC 768 at 772, where it has been observed that when the power has to be exercised by one of the highest officers the fact that no appeal has been provided is not material. In respect of appellate provision once again our attention has been drawn to the observations made by this Court in 1979 (4) SCC 573 at p.582-83, paras 15 & 16, Organo Chemical Industries & Anr. Vs. Union of India & Ors., to the effect that an appeal is a desirable corrective but not an indispensable imperative. It is, however, further observed in this decision that it may all depend upon the nature of the subject matter, other available correctives and the possible harm flowing from the wrong orders.

75.    In relation to the argument on behalf of the petitioners that they are entitled to be heard before a notice under sub-section (2) of Section 13 is issued failing which there is denial of principles of natural justice, a reference has been made to certain decisions to submit that in every case, it is not necessary to make a provision for providing a hearing. For example, in the case of a licensing statute, see 1961(3) SCR p.135, Kishan Chand Arora (supra). The other decisions referred to are : 1963 (2) SCR p.353 Lachhman Das V. State of Punjab, 1977 (2) SCC 256 at 262, Chairman, Board of Mining Examination v. Ramjee and 2002(3) SCC 496 at 504 para 7, Haryana Financial Corporation V. Jagdamba Oil Mills to submit that concept of natural justice is not a straight jacket formula. It, on the other hand, depends upon the facts of the case, nature of the enquiry, the rules under which the Tribunal is acting and what is to be seen that no one should be hit below the belt. Relationship between the creditor and the debtor, it is submitted, is essentially in the realm of a contract.

76.    In regard to the submission made by the parties as indicated in preceding paragraphs, we would like to make it clear that issue of a notice to the debtor by the creditor does not attract the application of principles of natural justice. It is always open to tell the debtor what he owes to repay. No hearing can be demanded from the creditor at this stage. So far the provision of appeal is concerned, we have already discussed in the earlier part of the judgment that proceedings under Section 17 of the Act have been wrongly described as appeal before the Debt Recovery Tribunal. It is in fact a forum where proceedings are originally initiated in case of any grievance against the creditor in respect of any measure taken under sub-section (4) of Section 13 of the Act. Hence, the decisions on the point as to whether provision for an appeal is essential or not are not of any assistance in the facts of the present case.

77.    It is also true that till the stage of making of the demand and notice under Section 13(2) of the Act, no hearing can be claimed for by the borrower. But looking to the stringent nature of measures to be taken without intervention of court with a bar to approach the court or any other forum at that stage, it becomes only reasonable that the secured creditor must bear in mind the say of the borrower before such a process of recovery is initiated. So as to demonstrate that the reply of the borrower to the notice under Section 13(2) of the Act has been considered applying mind to it. The reasons howsoever brief that may be for not accepting the objections, if raised in the reply, must be communicated to the borrower. True, presumption is in favour of validity of an enactment and a legislation may not be declared unconstitutional lightly more so, in the matters relating to fiscal and economic policies resorted to in the public interest, but while resorting to such legislation it would be necessary to see that the persons aggrieved get a fair deal at the hands of those who have been vested with the powers to enforce drastic steps to make recovery.

78.    It was sought to be argued that fairness cannot be a one way street. The plea of absence of natural justice lies ill in the mouth of chronic defaulters who have not paid the principal amounts admittedly due to the banks. The said argument pre-supposes admission of the liability by the borrowers and all of them to be chronic defaulters. It would only be pre-judging an issue. We hope it was not meant to be said that all those who defaulted according to the banks and financial institutions must be condemned unheard who might not deserve any hearing to place their side of the case, unless they must go through the crushing pre-conditions of deposit of 75% of the amount demanded over and above their secured assets already having been taken possession of. We feel this can well be one example of hitting below the belt.

79.    Some submissions have been made pointing out that in certain circumstances it would not be clear as to in what manner the provisions of the Act would be workable. We feel the objections pointed out are not such which render the statute invalid or unconstitutional. Such problems about working of any particular provision of the Act in any particular factual situation, may be considered as and when it may arise. We, therefore, do not think it necessary to go into those questions.

80.    Under the Act in consideration, we find that before taking action a notice of 60 days is required to be given and after the measures under Section 13(4) of the Act have been taken, a mechanism has been provided under Section 17 of the Act to approach the Debt Recovery Tribunal. The above noted provisions are for the purposes of giving some reasonable protection to the borrower. Viewing the matter in the above perspective, we find what emerges from different provisions of the Act, is as follows :-

1.    Under sub-section (2) of Section 13 it is incumbent upon the secured creditor to serve 60 days notice before proceeding to take any of the measures as provided under sub-section (4) of Section 13 of the Act. After service of notice, if the borrower raises any objection or places facts for consideration of the secured creditor, such reply to the notice must be considered with due application of mind and the reasons for not accepting the objections, howsoever brief they may be, must be communicated to the borrower. In connection with this conclusion we have already held a discussion in the earlier part of the judgment. The reasons so communicated shall only be for the purposes of the information/knowledge of the borrower without giving rise to any right to approach the Debt Recovery Tribunal under Section 17 of the Act, at that stage.

2. As already discussed earlier, on measures having been taken under sub-section (4) of Section 13 and before the date of sale/auction of the property it would be open for the borrower to file an appeal (petition) under Section 17 of the Act before the Debt Recovery Tribunal.

3. That the Tribunal in exercise of its ancillary powers shall have jurisdiction to pass any stay/interim order subject to the condition at it may deem fit and proper to impose.

4.    In view of the discussion already held on this behalf, we find that the requirement of deposit of 75% of amount claimed before entertaining an appeal (petition) under Section 17 of the Act is an oppressive, onerous and arbitrary condition against all the canons of reasonableness. Such a condition is invalid and it is liable to be struck down.

5. As discussed earlier in this judgment, we find that it will be open to maintain a civil suit in civil court, within the narrow scope and on the limited grounds on which they are permissible, in the matters relating to an English mortgage enforceable without intervention of the court.

81.    In view of the discussion held in the judgment and the findings and directions contained in the preceding paragraphs, we hold that the borrowers would get a reasonably fair deal and opportunity to get the matter adjudicated upon before the Debt Recovery Tribunal. The effect of some of the provisions may be a bit harsh for some of the borrowers but on that ground the impugned provisions of the Act cannot be said to be unconstitutional in view of the fact that the object of the Act is to achieve speedier recovery of the dues declared as NPAs and better availability of capital liquidity and resources to help in growth of economy of the country and welfare of the people in general which would subserve the public interest.

82.    We, therefore, subject to what is provided in paragraph 80 above, uphold the validity of the Act and its provisions except that of sub-section (2) of Section 17 of the Act, which is declared ultra vires of Article 14 of the Constitution of India.

83.    Before we part with the case, we would like to observe that where a secured creditor has taken action under Section 13(4) of the Act, in such cases it would be open to borrowers to file appeals under Section 17 of the Act within the limitation as prescribed therefor, to be counted with effect from today.

84.    The transfer cases, appeals and the petitions thus stand partly allowed limited to the extent indicated above. For the rest of the reliefs, they stand dismissed. Costs easy.

37.    Next we come to the question as to whether it is on whims and fancies of the financial institutions to classify the assets as non-performing assets, as canvassed before us. We find it not to be so. As a matter of fact a policy has been laid down by the Reserve Bank of India providing guidelines in the matter for declaring an asset to be a non-performing asset known as "RBI's prudential norms on income recognition, asset classification and provisioning - pertaining to advances" through a Circular dated August 30, 2001. It is mentioned in the said Circular as follows :

"1.1 In line with the international practices and as per the recommendations made by the Committee on the Financial System (Chairman Shri M.Narasimham), the Reserve Bank of India has introduced, in a phased manner, prudential norms for income recognition, asset classification and provisioning for the advances portfolio of the banks so as to move towards greater consistency and transparency in the published accounts."

2.1 Non-performing Assets:

"2.1.1 An asset, including a leased asset, becomes non-performing when it ceases to generate income for the bank. A 'non-

performing asset' (NPA) was defined as a credit facility in respect of which the interest and/or instalment of principal has remained 'past due' for a specified period of time. The specified period was reduced in a phased manner as under:

Year ending March 31    Specified period 1993    four quarters 1994    three quarters 1995 onwards    two quarters 2.1.2 An amount due under any credit facility is treated as "past due" when it has not been paid within 30 days from the due date. Due to the improvements in the payment and settlement systems, recovery climate, upgradation of technology in the banking system, etc., it was decided to dispense with 'past due' concept, with effect from March 31, 2001. Accordingly, as from that date, a Non- performing Asset (NPA) shall be an advance where

(i)    interest and/or installment of principal remain overdue for a period of more than 180 days in respect of a Term Loan,

(ii)    the account remains 'out of order' for a period of more than 180 days, in respect of an Overdraft/Cash Credit (OD/CC),

(iii)    the bill remains overdue for a period of more than 180 days in the case of bills purchased and discounted,

(iv)    interest and/or installment of principal remains overdue for two harvest seasons but for a period not exceeding two half years in the case of an advance granted for agricultural purposes, and

(v)    any amount to be received remains overdue for a period of more than 180 days in respect of other accounts.

4.2.2 Banks should establish appropriate internal systems to eliminate the tendency to delay or postpone the identification of NPAs, especially in respect of high value accounts. The banks may fix a minimum cut off point to decide what would constitute a high value account depending upon their respective business levels. The cut off point should be valid for the entire accounting year.

Responsibility and validation levels for ensuring proper asset classification may be fixed by the banks. The system should ensure that doubts in asset classification due to any reason are settled through specified internal channels within one month from the date on which the account would have been classified as NPA as per extant guidelines."

From what is quoted above, it is quite evident that guidelines as laid down by the Reserve Bank of India which are in more details but not necessary to be reproduced here, laying down the terms and conditions and circumstances in which the debt is to be classified as non-performing asset as early as possible. Therefore, we find no substance in the submission made on behalf of the petitioners that there are no guidelines for treating the debt as a non-performing asset.

38.    We may now consider the main enforcing provision which is pivotal to the whole controversy namely, Section 13 in Chapter III of the Act. It provides that a secured creditor may enforce any security interest without intervention of the court or Tribunal irrespective of Section 69 or Section 69A of the Transfer of Property Act where according to sub-section (2) of Section 13, the borrower is a defaulter in repayment of the secured debt or any installment of repayment and further the debt standing against him has been classified as a non- performing asset by the secured creditor. Sub-section (2) of Section 13 further provides that before taking any steps in direction of realizing the dues, the secured creditor must serve a notice in writing to the borrower requiring him to discharge the liabilities within a period of 60 days failing which the secured creditor would be entitled to take any of the measures as provided in sub-section (4) of Section 13. It may also be noted that as per sub-section (3) of Section 13 a notice given to the borrower must contain the details of the amounts payable and the secured assets against which the secured creditor proposes to proceed in the event of non- compliance with the notice given under sub-section (2) of Section 13.

39.    Sub-section (4) provides for four measures which can be taken by the secured creditor in case of non- compliance with the notice served upon the borrower. Under clause (a) of sub-section (4) the secured creditor may take possession of the secured assets including the right to transfer the secured assets by way of lease, assignment or sale; may take over the management of the secured assets under clause

(b) including right to transfer; under clause (c) of sub-section (4) a manager may be appointed to manage the secured assets which have been taken possession of by the secured creditor and may require any person who has acquired any secured assets from the borrower or from whom any money is due to the borrower to pay the same to him as it may be sufficient to pay the secured debtor as provided under Clause (d) of Section 3(4) of the Act. Sub-section (8) of Section 13 however, provides that if all the dues of the secured creditor including all costs, charges and expenses etc. as may be incurred are tendered to the secured creditor before sale or transfer no further steps be taken in that direction.

40.    Now coming to Section 17, it provides for filing of an appeal to the Debt Recovery Tribunal within 45 days of any action taken against the borrower under sub-section (4) of Section 13 of the Act. It reads as under : "17. Right to appeal .- (1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorized officer under this Chapter, may prefer an appeal to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken.

(2) Where an appeal is preferred by a borrower, such appeal shall not be entertained by the Debts Recovery Tribunal unless the borrower has deposited with the Debts Recovery Tribunal seventy-five per cent of the amount claimed in the notice referred to in sub-section (2) of section 13 :

Provided that the Debts Recovery Tribunal may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this section.

(3) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of the appeal in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and rules made thereunder."

It is thus clear that an appeal under sub-section (1) of Section 17 would lie only after some measure has been taken under sub-section (4) of Section 13 and not before the stage of taking of any such measure. According to sub-section (2), the borrower has to deposit 75% of the amount claimed by the secured creditor before his appeal can be entertained.

41.    So far jurisdiction of Civil Court is concerned we find that there is a bar to it as provided under Section 34 of the Act quoted below:-

"34. Civil Court not to have jurisdiction - No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993)."

42.    Mainly it is to be considered as to whether there is absolute bar of any remedy to the borrower, before an action is taken under sub-section (4) of Section 13 of the Act in view of non-obstante clause under sub-section (1) of Section 13 and the bar of the jurisdiction of the civil court under Section 34 of the Act. Sub-section (1) of Section 13 begins with "Notwithstanding anything contained" under Section 69 of the Transfer of Property Act any secured interest can be enforced without intervention of the court or Tribunal. Section 69 of the Transfer of Property Act provides as follows : "69. Power of sale when valid.-(1) A mortgagee, or any person acting on his behalf, shall, subject to the provisions of this section, have power to sell or concur in selling the mortgaged property, or any part thereof, in default of the payment of mortgage-money, without the intervention of the Court, in the following cases and in no others, namely -

(a)    where the mortgage is an English mortgage, and neither the mortgagor nor the mortgagee is a Hindu, Mohammadan or Buddhist or a member of any other race, sect, tribe or class from time to time specified in this behalf by the State Government, in the Official Gazette;

(b)    where a power of sale without the intervention of the Court is expressly conferred on the mortgagee by the mortgage-deed, and the mortgagee is the Government;

(c)    where a power of sale without the intervention of the Court is expressly conferred on the mortgagee by mortgage- deed, and the mortgaged property or any part thereof was, on the date of the execution of the mortgage-deed, situate within the towns of Calcutta, Madras, Bombay, or in any other town or area which the State Government may, by notification in the Official Gazette, specify in this behalf.

(2) No such power shall be exercised unless and until -

(a)    notice in writing requiring payment of the principal money has been served on the mortgagor, or on one of several mortgagors, and default has been made in payment of the principal money, or of part thereof, for three months after such service; or

(b)    some interest under the mortgage amounting at least to five hundred rupees is in arrear and unpaid for three months after becoming due.

(3) When a sale has been made in professed exercise of such a power, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorize the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorized, or improper, or irregular exercise of the power shall have his remedy in damages against the person exercising the power.

(4)          . . . . . . .   
(5)    . . . . . . .
Xxx            xxx                xxx"


It is clear that mortgaged property cannot be sold without intervention of the court except in three conditions as enumerated in clauses (a), (b) and (c) of sub-section (1) of Section 69. Clause (a) relates to English mortgage in which a mortgaged property is permitted to be sold without intervention of the court but in the stricto senso clause (a) would not be applicable to the present case as it contains many conditions which obviously are not fulfilled in case in hand. It is however, submitted that the provision for enforcing secured debt was made on the lines of the principle governing English mortgage. It is perhaps sought to be canvassed that if that kind of step namely enforcing the secured debt without intervention of the court is permissible in a case of English mortgage such a provision may legitimately be enacted in respect of mortgages like English mortgages. We find much has been argued on the point as to whether the transactions involved in the cases before us amount to English mortgage or not though none of agreements have been placed before us. Distinction between the two have also been tried to be shown and it has been submitted that English mortgage is in fact transfer of the property absolutely to the mortgagee with a term of retransfer. Section 58(e) pertaining to English mortgage is quoted below : "58. 'Mortgage', 'mortgagor', 'mortgagee', 'mortgage-money' and 'mortgage-deed' defined.-

xxx    xxx    xxx

(d)    English mortgage - Where the mortgagor binds himself to repay the mortgage-money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will retransfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage.

Xxx    xxx    xxx"

It is thus pointed out that in English mortgage, absolute transfer of the property already takes place. Hence the question of intervention of the court may not arise. It has a condition of retransfer. It is submitted that by no means it can be said that the transactions in question are like those as English mortgage. On the basis of the above provision it is further submitted that if the condition of retransfer is not invoked the mortgagee is possessed of all rights absolutely in the property. There are different kinds of mortgages as enumerated in section 58 of the Transfer of Property Act. We feel that it would not be necessary to further go into the matter as to whether the agreements in the cases before us amount to English mortgage or not since the non-obstante clause under Section 13(1) of the Act provides that notwithstanding anything contained in Section 69 a secured interest can be enforced without intervention of the court. That is to say it overrides the provision as contained under Section 69 where it is said that in no cases, other than those as enumerated in clauses (a), (b) and (c), a mortgage shall be enforced without intervention of the court. Once the said condition, as noted above, in section 69 of the Transfer of Property Act, the general law on the subject, has been overridden by the special enactment namely the Securitisation Act, it would not make much of a difference as to whether the transactions in question are akin to or amount to English mortgage or not, since irrespective of the kind of the mortgage the secured interest is liable to be enforced without intervention of the court as per the provision contained under Section 13 of the Act. Needless to refer Section 35 of the Act, which provides as under :

"35. The provisions of this Act to override other laws.- The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law."

43. It may, however, be worthwhile to mention here as to why and in what circumstances it had been thought necessary to provide a non-obstante clause in sub-section (1) of Section 13 of the Act. In a nutshell, the position as prevailed in 1882 when the Transfer of Property Act was enacted has undergone a sea-change. What was conceived correct in the situation then prevailing may not be so in the present day situation. Functions of different institutions including the banking and financial institutions have changed and new functions have been introduced for financing the industries etc. New economic and fiscal environment is around more than 100 years later after the enactment of the Transfer of Property Act. In this connection it has been pointed out on behalf of the respondents that Rajamannar Committee was appointed by Government of India which submitted its report in 1977 indicating the effect of the changed situation and the relevance of the provisions of the Transfer of Property Act in context thereof. Mr.Salve has drawn our attention to the Rajamannar Committee report as quoted in the Narasimham Committee Report 1998, which reads as under :

"The Rajamannar Committee appointed by the Government of India gave its report in 1977 pointing out the development of the law of mortgages and explaining how it had become completely anachronistic in the latter part of the 20th century where mortgages had become a very important instrument to facilitate development of commercial credit. The Rajamannar Committee's recommendations, that were extracted in the Narasimham Report (1998) stated ".... thus a distinction was made in the original schemes as regards mortgages to which Europeans were parties mortgages where the properties were situated in the presidency towns, and mortgages where the mortgages were of native origin and mortgages where the property was situate in the mofussil. This distinction was based on the fact that in the mofussil, it was the money lenders with their unscrupulous methods, who were, by and large, the persons lending against mortgage of immovable property ..... evidently, the situation that prevailed at the time of the enactment of the Transfer of Property Act 1882, justify the legislative action of the then Government of India in limiting the right of sale without the intervention of court .....

....economic conditions have vastly changed since the enactment of the Transfer of Property Act in 1882. The role of the unscrupulous money lenders dominating in the field of credit is no longer valid ,,, with our reliance on institutionalization of credit, the banks another financing institutions are the major moneylenders of credit today. In their dealings with their mortgagors, it is anachronistic to assume that they will adopt the unscrupulous moneylenders. (Paragraph 1.2.19).

In fact in extending credit, the necessity for suitable safeguards to banks and other financing institutions is now rightly stressed. It is understandable that the legal framework is essentially conceived to deal with unscrupulous moneylenders is no longer appropriate to deal with credit given by banks and other financing institutions...".

44.    As a matter of fact, the Narasimham Committee also advocates for a legal framework which may clearly define the rights and liabilities of the parties to the contract and provisions for speedy resolution of disputes, which is a sine qua non for efficient trade and commerce, especially for financial intermediation. Even the guidelines of the Reserve Bank of India in relation to classifying the NPA's while stressing the need of expeditious steps in taking a decision for classifying and identification of NPA's says, a system be evolved which should ensure that the doubts in asset classification are settled through specified internal channels within the time specified in the guidelines. It is thus clear that while recommending speedier steps for recovery of the debts it is envisaged by all concerned that within the legal framework, such provisions may be contained which may curtail the delays. Nonetheless dues or disputes regarding classification of NPAs should be considered and resolved by some internal mechanism. In our view, the above position suggests the safeguards for a borrower, before a secured asset is classified as NPA. If there is any difficulty or any objection pointed out by the borrower by means of some appropriate internal mechanism it must be expeditiously resolved.

45.    In the background we have indicated above, we may consider as to what forums or remedies are available to the borrower to ventilate his grievance. The purpose of serving a notice upon the borrower under sub-section (2) of Section 13 of the Act is, that a reply may be submitted by the borrower explaining the reasons as to why measures may or may not be taken under sub-section (4) of Section 13 in case of non- compliance of notice within 60 days. The creditor must apply its mind to the objections raised in reply to such notice and an internal mechanism must be particularly evolved to consider such objections raised in the reply to the notice. There may be some meaningful consideration of the objections raised rather than to ritually reject them and proceed to take drastic measures under sub-section (4) of Section 13 of the Act. Once such a duty is envisaged on the part of the creditor it would only be conducive to the principles of fairness on the part of the banks and financial institutions in dealing with their borrowers to apprise them of the reason for not accepting the objections or points raised in reply to the notice served upon them before proceeding to take measures under sub-section (4) of Section 13. Such reasons, overruling the objections of the borrower, must also be communicated to the borrower by the secured creditor. It will only be in fulfillment of a requirement of reasonableness and fairness in the dealings of institutional financing which is so important from the point of view of the economy of the country and would serve the purpose in the growth of a healthy economy. It would certainly provide guidance to the secured debtors in general in conducting the affairs in a manner that they may not be found defaulting and being made liable for the unsavoury steps contained under sub-section (4) of Section 13. At the same time, more importantly we must make it clear unequivocally that communication of the reasons not accepting the objections taken by the secured borrower may not be taken to give an occasion to resort to such proceedings which are not permissible under the provisions of the Act. But communication of reasons not to accept the objections of the borrower, would certainly be for the purpose of his knowledge which would be a step forward towards his right to know as to why his objections have not been accepted by the secured creditor who intends to resort to harsh steps of taking over the management/business of viz. secured assets without intervention of the court. Such a person in respect of whom steps under Section 13(4) of the Act are likely to be taken cannot be denied the right to know the reason of non- acceptance and of his objections. It is true, as per the provisions under the Act, he may not be entitled to challenge the reasons communicated or the likely action of the secured creditor at that point of time unless his right to approach the Debt Recovery Tribunal as provided under Section 17 of the Act matures on any measure having been taken under sub- section (4) of Section 13 of the Act.

46.    We are holding that it is necessary to communicate the reasons for not accepting the objections raised by the borrower in reply to notice under Section 13(2) of the Act more particularly for the reason that normally in the event of non- compliance with notice, the party giving notice approaches the court to seek redressal but in the present case, in view of Section 13 (1) of the Act the creditor is empowered to enforce the security himself without intervention of the Court. Therefore, it goes with logic and reason that he may be checked to communicate the reason for not accepting the objections, if raised and before he takes the measures like taking over possession of the secured assets etc.

47.    This will also be in keeping with the concept of right to know and lender's liability of fairness to keep the borrower informed particularly the developments immediately before taking measures under sub-section (4) of Section 13 of the Act. It will also cater the cause of transparency and not secrecy and shall be conducive in building an atmosphere of confidence and healthy commercial practice. Such a duty, in the circumstances of the case and the provisions is inherent under Section 13(2) of the Act.

48.    The next safeguard available to a secured borrower within the framework of the Act is to approach the Debt Recovery Tribunal under Section 17 of the Act. Such a right accrues only after measures are taken under sub-section (1) of Section 13 of the Act.

49.    On behalf of one of the respondents Shri Andhyarujina submitted that as a matter of fact Section 13 of the Act leaves more scope and provides wider protection to the borrower as compared to in the case of English mortgage and in connection with the above submission it has been pointed out that in case of an English mortgage there is no scope of intervention of the court unless a case is made out before the court that action of the mortgagee is fraudulent or it is a case of the like nature. Otherwise as provided under sub-section (3) of Section 69 a mortgagor shall only be entitled to the damages for the wrongful or irregular sale of the property. Whereas, it is submitted, under the Securitisation rules it is provided that before putting the property on sale the authorized officer has to obtain the valuation of immovable property, a reserved price is to be fixed and a notice of 30 days before sale is to be served on the borrower. In this connection, Rule 9, the relevant rule, of the Security Interest (Enforcement) Rules, 2002 is quoted :

"9. Time of sale, issues of sale certificate and delivery of possession, etc.- (1) No sale of immovable property under these rules shall take place before the expiry of thirty days from the date on which the public notice of sale is published in newspapers as referred to in the proviso to sub-rule (6) or notice of sale has been served to the borrower.

(2) The sale shall be confirmed in favour of the purchaser who has offered the highest sale price in his bid or tender or quotation or offer to the authorized officer and shall be subject to confirmation by the secured creditor:

xxx                xxx        xxx

(3) to 10) xxx            xxx        xxx"


Therefore, during this period which would be in all more than 60 days it would be open for a borrower to approach the Debt Recovery Tribunal and file a petition for any appropriate relief and if a case is so made out, he can even get a relief of stay, in exercise of ancillary power which vest in the Tri bunal as per decisions referred and reported in 1969 (2) SCR p.65, ITO vs. Mohd.Kunhi and 1999 (6) SCC p.755, Allahabad Bank, Calcutta Vs. Radha Krishna Maity & Ors. Again referring to Section 19 of the Act it is pointed out that in case in the end the Tri bunal finds that the secured assets have been wrongfully transferred or taken possession of an order for return of such assets can be passed and the borrower in that even shall also be entitled for compensation.

50.    It has also been submitted that an appeal is entertainable before the Debt Recovery Tribunal only after such measures as provided in sub-section (4) of Section 13 are taken and Section 34 bars to entertain any proceeding in respect of a matter which the Debt Recovery Tribunal or the appellate Tribunal is empowered to determine. Thus before any action or measure is taken under sub-section (4) of Section 13, it is submitted by Mr. Salve one of the counsel for respondents that there would be no bar to approach the civil court. Therefore, it cannot be said no remedy is available to the borrowers. We, however, find that this contention as advanced by Shri Salve is not correct. A full reading of section 34 shows that the jurisdiction of the civil court is barred in respect of matters which a Debt Recovery Tribunal or appellate Tribunal is empowered to determine in respect of any action taken "or to be taken in pursuance of any power conferred under this Act". That is to say the prohibition covers even matters which can be taken cognizance of by the Debt Recovery Tribunal though no measure in that direction has so far been taken under sub-section (4) of Section 13. It is further to be noted that the bar of jurisdiction is in respect of a proceeding which matter may be taken to the Tribunal. Therefore, any matter in respect of which an action may be taken even later on, the civil court shall have no jurisdiction to entertain any proceeding thereof. The bar of civil court thus applies to all such matters which may be taken cognizance of by the Debt Recovery Tribunal, apart from those matters in which measures have already been taken under sub-section (4) of Section 13.

51.    However, to a very limited extent jurisdiction of the civil court can also be invoked, where for example, the action of the secured creditor is alleged to be fraudulent or their claim may be so absurd and untenable which may not require any probe, whatsoever or to say precisely to the extent the scope is permissible to bring an action in the civil court in the cases of English mortgages. We find such a scope having been recognized in the two decisions of the Madras High Court which have been relied upon heavily by the learned Attorney General as well appearing for the Union of India, namely V.Narasimhachariar (supra) p.135 at p.141 and 144, a judgment of the learned single Judge where it is observed as follows in para 22:

"The remedies of a mortgagor against the mortgagee who is acting in violation of the rights, duties and obligations are twofold in character. The mortgagor can come to the Court before sale with an injunction for staying the sale if there are materials to show that the power of sale is being exercised in a fraudulent or improper manner contrary to the terms of the mortgage. But the pleadings in an action for restraining a sale by mortgagee must clearly disclose a fraud or irregularity on the basis of which relief is sought: 'Adams v. Scott, (1859) 7 WR (Eng.) 213 (Z49). I need not point out that this restraint on the exercise of the power of sale will be exercised by Courts only under the limited circumstances mentioned above because otherwise to grant such an injunction would be to cancel one of the clauses of the deed to which both the parties had agreed and annul one of the chief securities on which persons advancing moneys on mortgages rely. (See Rashbehary Ghose Law of Mortgages, Vol.II, Fourth Edn., page 784).

52.    The other decision on which reliance has been placed is A.Batcha Saheb Vs. Nariman K.Irani & Anr., AIR 1955 Madras DB p.491 more particularly on paragraph 8.

53.    We also find it appropriate to mention at this stage that in reply to submission made by Shri Dholakia on behalf of the guarantors that even though a guarantor may stand discharged as envisaged under Sections 133 and 135 of the Indian Contracts Act eg., where any variance in terms of the contract has been made without his consent, then too guarantor may be proceeded against and he will have no right to raise an objection, before measures have been taken against him under Section 13(4) of the Act nor he could approach the civil court. It is submitted by the respondent in such cases civil court may have jurisdiction to entertain the case as character as a guarantor itself is denied.

54.    In so far the argument advanced on behalf of the petitioners that by virtue of the provisions contained under sub-section (4) of Section 13 the borrowers lose their right of redemption of the mortgage. In reply it is submitted that rather such a right is preserved under sub-section (8) of Section 13 of the Act. Where a borrower tenders to the creditor the amount due with costs and expenses incurred, no further steps for sale of the property are to take place. In this connection, a reference has also been made by the learned Attorney General to a decision reported in 1977(3) SCC p.247, Naraindas Kavsondas Vs. S.A.Katam which provides that a mortgagor can exercise his right of redemption any time until the final sale of the property by execution of a conveyance. Sri Sibal, however, submits that it is the amount due according to the secured creditor which shall have to be deposited to redeem the property. Maybe so, some difference regarding the amount due may be there but it cannot be said that right of redemption of property is completely lost. In cases where no such dispute is there, the right can be exercised and in other cases the question of difference in amount may be kept open and got decided before sale of property.

55.    We may then turn to the arguments raised on behalf of the petitioners that the remedy before the Debt Recovery Tribunal under Section 17 of the Act, is illusory burdened with onerous and oppressive condition of deposit of 75% of the amount of the demand notice before an appeal can be entertained by the Tribunal. We feel that it would be difficult to brush aside the challenge made to the condition of such a deposit. Sub-section (2) of Section 17 itself says that no appeal shall be entertainable unless the borrower has deposited the aforesaid sum of amount claimed. Much stress has been given in reply to the proviso to sub-section (2) of Section 17, according to which the Tribunal has power to waive or reduce the amount. While waiving the condition of deposit the amount or reducing it, the Tribunal is required to record reasons for the same. It is submitted for the respondents that in an appropriate case, the DRT which is presided over by a Member of a Higher Judicial Service, would exercise its discretion and may waive or reduce the amount required to be deposited in deserving cases. It is, therefore, not an absolute condition which must in all cases and all circumstances be fulfilled irrespective of the special features of a particular case.

56.    The contention of the petitioners is that in the first place such an oppressive provision should not have been made at all. It works as a deterrent or as a disabling provision impeding access to a forum which is meant for redressal of the grievance of a borrower. It is submitted where the possession of the secured assets has already been taken over or the management of the secured assets of the borrower including the right to transfer the same, in that event it would not at all be necessary to burden the borrower doubly with deposit of 75% of the demand amount. In a situation where the possession of the secured assets have already been taken over or its management, it is highly unreasonable further to ask for 75% of the amount claimed before entertaining the grievance of the borrower.

57.    Secondly, it is submitted that, it would not be possible for a borrower to raise funds to make deposit of the huge amount of 75% of the demand, once he is deprived of the possession/management of the property namely, the secured assets. Therefore, the condition of deposit is a condition of impossibility which renders the remedy made available before the DRT as nugatory and illusory. The learned Attorney General refutes the aforesaid contention. It is further submitted that such a condition of pre-deposit has been held to be valid by this Court earlier and a reference has been made to a decisions reported in 1975 (2) SCC p.175 at p.202, Anant Mills Co.Ltd. Vs. State of Gujarat to submit that such a provision is made to regulate the exercise of the right of an appeal conferred upon a person. The purpose is that right of appeal may not be abused by any recalcitrant party and there may not be any difficulty in enforcing the order appealed against if ultimately it is dismissed and there may be speedy recovery of the amount of tax due to the corporation.

58.    In another decision relied upon reported in 1980 (Supp.) SCC p.574, Seth Nandlal Vs. State of Haryana there was no provision for a waiver or reduction of amount of pre- deposit, it is submitted, even that the provision was held to be valid as the purpose was to prevent frivolous appeals and revisions which impedes the implementation of the ceiling policy. Referring to yet another decision reported in 1988(4) SCC p.402, Vijay Prakash D.Mehta and Anr. Vs. Collector of Customs (Preventive) Bombay, it is submitted that right to appeal is neither an absolute right nor an ingredient of natural justice which principles are to be followed in judicial and quasi-judicial proceedings. A right of appeal is a statutory right and it can be circumscribed by the conditions. We also find that there are further observations to the effect that the condition is for the purpose to act in torrorem to make the people comply with the provisions of the law. 1993 (1) SCC p.22, Shyam Kishore & Ors. Vs. Municipal Corporation of Delhi, has been referred to submit that a similar provision was upheld without there being any provision for waiver of the condition. The submission is that such a provision as that of pre-deposit before maintaining an appeal is not unknown to law and there are several other statutes containing similar provisions. Emphasis is on the provision of waiver or reduction of the amount required to be paid which, it is submitted, strikes a balance between the right of a person to appeal and the right of the person appealed against for speedy recovery of his dues.

59.    We may like to observe that proceedings under Section 17 of the Act, in fact are not appellate proceedings. It seems to be a misnomer. In fact it is the initial action which is brought before a Forum as prescribed under the Act, raising grievance against the action or measures taken by one of the parties to the contract. It is the stage of initial proceeding like filing a suit in civil court. As a matter of fact proceedings under Section 17 of the Act are in lieu of a civil suit which remedy is ordinarily available but for the bar under Section 34 of the Act in the present case. We may refer to a decision of this Court reported in (1974) 2 SCC p. 393 Smt. Ganga Bai Vs. Vijay Kumar and Ors. where in respect of original and appellate proceedings a distinction has been drawn as follows:-

"........There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of civil nature and unless one's choice. It is no answer to a suit, howsoever frivolous to claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute."

Mardia Chemicals Ltd. Etc. Etc vs U.O.I.
Supreme Court of India - Bench: Cji., Brijesh Kumar, Arun Kumar - CASE NO.:Transfer Case (civil)  92-95 of 2002 - DATE OF JUDGMENT: 08/04/2004

JUDGMENT:
JUDGMENT WITH WRIT PETITION (CIVIL) NO.140 OF 2003 M/s.Ashok Mfg.Co.Pvt.Ltd. & Ors.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.649 OF 2002 Major Mahajan Mandal & Ors.

Versus U.O.I.

WRIT PETITION (CIVIL) NO.673 OF 2002 Supreme Rubber Industries Versus U.O.I. & Anr.

TRANSFER CASE (CIVIL) NO. 10 OF 2003 Modern Terry Towels Ltd. & Ors.

Versus State of Rajasthan & Ors.

WRIT PETITION (CIVIL) NO.322 OF 2003 Sohanlal Rara    Versus U.O.I. & Anr.

TRANSFER CASE (CIVIL) NO. 46 OF 2003 J.K.Udaipur Udyog Ltd.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.643 OF 2002 Shree Synthetics Ld. & Anr    Versus U.O.I. & Ors.

TRANSFER CASE (CIVIL) NO. 12 OF 2003 Sobhag Textiles Ltd.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.48 OF 2003 M/s.REL Industries .Ltd.

Versus U.O.I. & Ors.

CIVIL APPEAL NO. OF 2004 (Arising out of SLP (C) No.5013 of 2003) M/s.Oriental Motors & Anr.

Versus Punjab & Sindh Bank & Anr.

WRIT PETITION (CIVIL) NO.176 OF 2003 M/s.Mahendra Commercial Ltd. & Anr.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.190 OF 2003 H.R.Brothers & Ors.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.219 OF 2003 M/s.Tirthankar Agro & Ors.

Versus U.O.I. & Anr.

CIVIL APPEAL NO. OF 2004 (Arising out of SLP (C) No.9658 of 2003) Citisteel Corporation & Ors.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.147 OF 2003 M/s.Punjab Breeders Ltd..

Versus U.O.I. & Ors.

TRANSFER PETITION (CIVIL) NO. 326 OF 2003 Bank of Rajasthan Ltd.

Versus Naresh Kumar Nevatia & Ors.

WRIT PETITION (CIVIL) NO.279 OF 2003 Euro India Biotech Ltd. & Ors.

Versus U.O.I. & Ors.

WRIT PETITION (CIVIL) NO.231 OF 2003 Pradeep Sohawala Versus U.O.I. & Ors.

CIVIL APPEAL NO. OF 2004 (Arising out of SLP (C) No.11089 of 2003) M/s.Rudra Informatics & Ors.

Versus Prudential Co-op.Bank Ltd.& Anr.

WRIT PETITION (CIVIL) NO.292 OF 2003 Patheja Brothers Forgings & Stampings&Anr.    Versus U.O.I. & Anr.

CIVIL APPEAL NO. OF 2004 (Arising out of SLP (C) No.11267 of 2003) M/s.Haji Abdul Hameed & Ors.

Versus Central Bank of India & Ors.

CIVIL APPEAL NO. OF 2004 (Arising out of SLP (C) No.11268 of 2003) M/s.Etawah Sales Corporation & Ors.

Versus Central Bank of India & Ors.

TRANSFER PETITION (CIVIL) NO. 403 OF 2003 Bank of Rajasthan    Versus R.K.Garg & Sons (HUF)    WRIT PETITION (CIVIL) NO.379 OF 2003 M/s.Verma Cards & Posters Pvt.Ltd. & Ors. Versus U.O.I. & Anr.

CIVIL APPEAL NO. OF 2004 (Arising out of SLP (C) No.15566 of 2003) N.C.Jain    Versus Bank of Baroda & Ors.

TRANSFER CASE (CIVIL) NO. 11 OF 2003 Soni Tourism Pvt. Ltd. & Ors.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.366 OF 2003 G.V.Venkateshiah Versus State Bank of India & Ors.

WRIT PETITION (CIVIL) NO.541 OF 2002 M/s.Amulet International Pvt.Ltd. & Ors.    Versus U.O.I. & Anr.

CIVIL APPEAL NO. OF 2004 (Arising out of SLP (C) No.17465 of 2003) M/s.Deep Chand Sushil Kumar & Ors.

Versus Central Bank of India & Anr.

WRIT PETITION (CIVIL) NO.477 OF 2003 M/s.Rama Steel Industries & Ors.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.496 OF 2003 M/s.Pahadewali Ispat Pvt.Ltd. & Anr.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.499 OF 2003 M/s.KPJ Tradevest Pvt.Ltd. & Anr.

Versus U.O.I. & Ors.

TRANSFER PETITION (CIVIL) NO. 756 OF 2003 M/s.Vaishno Cold Storage & Ors.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.545 OF 2003 M/s.Madhumilan Syntex Ltd. & Anr.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.557 OF 2003 J.K.Jain & Ors.

Versus U.O.I. & Anr.

CIVIL APPEAL NO. OF 2004 (Arising out of SLP (C) No...... of 2003(CC 10728) M/s.Suneeta Wool & Readymade Emporium Versus Allahabad Bank, Jhansi CIVIL APPEAL NO. OF 2004 (Arising out of SLP (C) No.6723 of 2003) Pushpinder Kaur & Anr.

Versus Punjab & Sindh Bank & Anr.

WRIT PETITION (CIVIL) NO.590 OF 2003 M/s.Nabe International & Ors.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.13 OF 2004 Kanti Devi & Anr.

Versus Canara Bank & Ors.

AND WRIT PETITION (CIVIL) NO.546 OF 2003 M/s.Akal Springs Ltd.

Versus U.O.I. & Anr.

BRIJESH KUMAR, J.

1.    Leave granted in Special Leave Petition (Civil) Nos.5013/2003, 9658/2003, 11089/2003, 11267/2003, 11268/2003, 15566/2003, 17465/2003 and special leave petition @ CC 10728 and SLP(C) No.6723/2003.

2.    By means of the above noted bunch of cases some of those having been transferred to this court, the validity of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002) (for short 'the Act') has been challenged. Some writ petitions were filed in different High Courts on promulgation of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest (Second Ordinance), 2002. However, the Act 54 of 2002 was enacted and enforced, vires of which is in question, more particularly, the provisions as contained in Sections 13, 15, 17 and 34 of the Act. Besides others, we may, for the sake of convenience, refer to the averments made and documents filed in Transferred Case Nos.92-95 of 2002 - M/s.Mardia Chemicals Ltd. Etc. Etc. Vs. Union of India & Ors. Etc.Etc.

3.    It appears that a notice dated July 24, 2002 was issued to the petitioner - Mardia Chemicals Ltd. by the Industrial Development Bank of India (for short 'the IDBI') under Section 13 of the Ordinance, then in force, requiring it to pay the amount of arrears indicated in the notice within 60 days, failing which the IDBI as a secured creditor would be entitled to enforce the security interest without intervention of the court or Tribunal, taking recourse to all or any of the measures contained in sub-section (4) of Section 13 namely, by taking over possession and/or management of the secured assets. The petitioner was also required not to transfer by way of sale, lease or otherwise any of the secured assets. Similar notices were issued by other financial institutions and banks under the provisions of Section 13 of the Ordinance/Act to different parties who filed petitions in different High Courts.

4.    The main contention challenging the vires of certain provisions of the Act is that the banks and the financial institutions have been vested with arbitrary powers, without any guidelines for its exercise and also without providing any appropriate and adequate mechanism to decide the disputes relating to the correctness of the demand, its validity and the actual amount of dues, sought to be recovered from the borrowers. The offending provisions as contained under the Act, are such that, it all has been made one sided affair while enforcing drastic measures of sale of the property or taking over the management or the possession of the secured assets without affording any opportunity to the borrower. Before further detailing the grounds of attack, we may peruse some of the relevant provisions of the Act.

5.    The term "borrower" has been defined in clause (f) of Section 2, which provides as under :

"borrower" means any person who has been granted financial assistance by any bank or financial institution or who has given any guarantee or created any mortgage or pledge as security for the financial assistance granted by any bank or financial institution and includes a person who becomes borrower of a securitisation company or reconstruction company consequent upon acquisition by it of any rights or interest of any bank or financial institution in relation to such financial assistance;"

6.    "Financial Assistance" has been defined in clause

(k), which reads as under:

"financial assistance" means any loan or advance granted or any debentures or bonds subscribed or any guarantees given or letters of credit established or any other credit facility extended by any bank or financial institution;"

7.    Similarly, the term "default" is defined in clause (j), as quoted below :

"default" means non-payment of any principal debt or interest thereon or any other amount payable by a borrower to any secured creditor consequent upon which the account of such borrower is classified as non-performing asset in the books of account of the secured creditor in accordance with the directions or guidelines issued by the Reserve Bank"

8.    "Non Performing Asset" has been defined in clause(o) of Section 2 which means :

"non-performing asset" means an asset or account of a borrower, which has been classified by a bank or financial institution as sub-standard, doubtful or loss asset, in accordance with the directions or under guidelines relating to asset classifications issued by the Reserve Bank".

9.    "Reconstruction company" has been defined in clause(v) of Section 2 which means :

"Reconstruction company" means a company formed and registered under the Companies Act, 1956 (1 of 1956) for the purpose of asset reconstruction;

10.    "Secured asset" has been defined in clause(zc) of Section 2 which means :

"Secured Asset" means the property on which security interest is created."

11.    "Secured creditor" has been defined in clause(zd) of Section 2 which means :

"Secured Creditor" means "any bank or financial institution or any consortium or group of banks or financial institutions and includes -

(i)    debenture trustee appointed by any bank or financial institution; or

(ii)    securitization company or reconstruction company; or

(iii)    any other trustee holding securities on behalf of a bank or financial institution, in whose favour security interest is created for due repayment by any borrower of any financial assistance;"

12.    "Secured Debt" has been defined in clause(ze) of Section 2 which means :

"Secured Debt" means a debt which is secured by any security interest."

13.    "Security interest" has been defined in clause(zf) of Section 2 which means :

"Security Interest" means right, title and interest of any kind whatsoever upon property, created in favour of any secured creditor and includes any mortgage, charge, hypothecation, assignment other than those specified in section 31."

14.    Section 13, which is relevant for our present purpose, provides:

"Enforcement of security interest.- (1) Notwithstanding anything contained in section 69 or section 69A of the Transfer of Property Act, 1882 (4 of 1882), any security interest created in favour of any secured creditor may be enforced, without the intervention of the court or tribunal, by such creditor in accordance with the provisions of this Act.

(2) Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any instalment thereof, and his account in respect of such debt is classified by the secured creditor as non-performing asset, then, the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notice failing which the secured creditor shall be entitled to exercise all or any of the rights under sub- section (4).

(3) The notice referred to in sub-section (2) shall given details of the amount payable by the borrower and the secured assets intended to be enforced by the secured creditor in the event of non-payment of secured debts by the borrower.

(4) In case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:-

(a)    take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realizing the secured asset;

(b)    take over the management of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale and realize the secured asset;

(c)    appoint any person (hereafter referred to as the manager) to manage the secured assets the possession of which has been taken over by the secured creditor;

(d)    require at any time by notice in writing, any person who has acquired any of the secured assets from the borrower and from whom any money is due or may become due to the borrower, to pay the secured creditor, so much of the money as is sufficient to pay the secured debt.

(5) Any payment made by any person referred to in clause (d) of sub-section (4) to the secured creditor shall give such person a valid discharge as if he has made payment to the borrower.

(6) Any transfer of secured asset after taking possession thereof or take over of management under sub-section (4), by the secured creditor or by the manager on behalf of the secured creditors shall vest in the transferee all rights in, or in relation to, the secured asset transferred as if the transfer had been made by the owner of such secured asset.

(7) Where any action has been taken against a borrower under the provisions of sub-section (4), all costs, charges and expenses which, in the opinion of the secured creditor, have been properly incurred by him or any expenses incidental thereto, shall be recoverable from the borrower and the money which is received by the secured creditor shall, in the absence of any contract to the contrary, be held by him in trust, to be applied, firstly, in payment of such costs, charges and expenses and secondly, in discharge of the dues of the secured creditor and the residue of the money so received shall be paid to the person entitled thereto in accordance with his rights and interests.

(8) If the dues of the secured creditor together with all costs, charges and expenses incurred by him are tendered to the secured creditor at any time before the date fixed for sale or transfer, the secured asset shall not be sold or transferred by the secured creditor, and no further step shall be taken by him for transfer or sale of that secured asset.

(9) In the case of financing of a financial asset by more than one secured creditors or joint financing of a financial asset by secured creditors, no secured creditor shall be entitled to exercise any or all of the rights conferred on him under or pursuant to sub-section (4) unless exercise of such right is agreed upon by the secured creditors representing not less than three-fourth in value of the amount outstanding as on a record date and such action shall be binding on all the secured creditors:

Provided that in the case of a company in liquidation, the amount realized from the sale of secured assets shall be distributed in accordance with the provisions of section 529 A of the Companies Act, 1956 (1 of 1956).

Xxx    xxx    xxx (10) Where dues of the secured creditor are not fully satisfied with the sale proceeds of the secured assets, the secured creditor may file an application in the form and manner as may be prescribed to the Debts Recovery Tribunal having jurisdiction or a competent court, as the case may be, for recovery of the balance amount from the borrower.

(11) Without prejudice to the rights conferred on the secured creditor under or by this section, secured creditor shall be entitled to proceed against the guarantors or sell the pledged assets without first taking any of the measures specified in clauses (a) to (d) of sub- section (4) in relation to the secured assets under this Act.

Xxx    xxx    xxx (13) No borrower shall, after receipt of notice referred to in sub-section (2), transfer by way of sale, lease or otherwise (other than in the ordinary course of his business) any of his secured assets referred to in the notice, without prior written consent of the secured creditor."

15.    Mr.Kapil Sibal, learned senior counsel appearing for the petitioners in the Transferred Case - M/s.Mardia Chemicals Ltd. submits that there was no occasion to enact such a draconian legislation to find a short-cut to realize the dues without their ascertainment but which the secured creditor considered to be the dues and declare the same as non-performing assets (NPAs). Out of the total NPAs which are considered to be about one lac crores, about half of it is due against priority sector like agriculture etc. The dues between 10 lacs to one crore constitute only 13.90% of the total dues. By providing statistics on the point it is sought to be demonstrated that most of the dues are against those borrowers whose borrowing ranges between Rs.25000 to Rs.10 lacs. Besides the above, it is submitted, that there is already a special enactment providing for recovery of dues of banks and financial institutions. Therefore, it was not necessary to enact yet another legislation containing drastic steps and procedure depriving the debtors of any fair opportunity to defend themselves from the onslaught of the harsh steps as provided under the Act.

16.    It is further submitted that no provision has been made to take into account the lenders liability, though at one time it was considered necessary to have an enactment relating to lenders liability and a bill was also intended to be introduced, as it was considered that it is necessary for the lenders as well to conduct themselves responsibly towards the borrowers. It is submitted that despite such a statement, as indicated above, on the floor of the House, neither any such law has been enacted so far nor any care has been taken to introduce such safeguards in the Act to protect the borrowers against their vulnerability to arbitrary or irresponsible action on the part of the lenders. On a comparative basis, in relation to other countries, it is submitted that the percentage of NPA of as against the GDP is only 6% in India which is much less as compared to China, Malasia, Thailand, Japan, South Korea and other countries. Therefore, it is evident that the resort has been taken to a drastic legislation, under mis- apprehension that other ways and means have failed to recover the dues from the borrowers.

17.    Referring to Section 13 of the Act it is submitted on behalf of the petitioners that a security interest can be enforced by the secured creditor straightaway without intervention of the court just on default in repayment of an instalment and non-compliance of a notice of 60 days in that regard, declaring the loan as non-performing asset. Under sub-section 4 of Section 13 the secured creditor is entitled to take possession of the secured assets and may transfer the same by way of lease, assignment or sale as provided under clause (a) or under clause (b) to take over the management of the secured assets including the right to transfer any secured assets or to appoint any person as provided in clause (c) to manage the secured assets taken over by the creditor. Under clause (d) by means of a notice any person who has acquired any of the secured assets from the borrower or who has to pay to the borrower any amount which may cover the secured debt, can be asked to pay it to the secured creditor. All that is provided is that if all the dues with costs and charges and expenses incurred by the creditor is tendered before the date fixed for sale of the assets no further steps shall be taken for sale of the property.

18.    It is submitted that the mechanism provided for recovery of the debt under Section 13 indicated above does not provide for any adjudicatory forum to resolve any dispute which may arise in relation to the liability of the borrower to be treated as a defaulter or to see as to whether there has been any violation or lapse on the part of the creditor or in regard to the correctness of the amount sought to be recovered and the interest levied thereupon. On the other hand, Section 34 bars the jurisdiction of the civil court to entertain any suit in respect of any matter which a Debt Recovery Tribunal or the appellate Tribunal is empowered to determine. It also provides that no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under Act or under the Recovery of Debts due to Banks and Financial Institutions Act, 1993. Section 35 gives an overriding effect to the provisions of the Act over the provisions contained under any other law. The submission, therefore, is that before any action is taken under Section 13, there is no forum or adjudicatory mechanism to resolve any dispute which may arise in respect of the alleged dues or the NPA.

19.    It is further submitted that the provision of appeal as contained in Section 17 of the Act is also illusory since an appeal may be preferred within the specified time from the date on which measures under sub-section 4 of Section 13 have been taken, is to say that the appeal would be maintainable after the possession of the property or the management of the secured assets has been taken over or the property has been sold. Further, an appeal is not entertainable unless 75% of the amount claimed in the notice is deposited by the borrower with the Debt Recovery Tribunal. It would be a matter in the discretion of the Debt Recovery Tribunal to waive the condition of pre deposit or to reduce the amount, for reasons to be recorded therefor. It is submitted that a remedy which is available, after the damage is done and on fulfillment of such an onerous condition as deposit of 75% of the demand, is illusory and a mere farce. It is no real remedy available to a borrower before he is subjected to harsh steps as provided under sub-section (4) of Section 13. It is further submitted that after the possession of the secured assets or its management has been taken over by the secured creditor or the property is leased out or sold to any other person, it would not be possible to raise and deposit 75% of the amount claimed by the secured creditor. It is also submitted that once the secured assets are taken over there is hardly any occasion for deposit of 75% of the claim since it is already secured and the management and the possession of the secured assets moves into the hands of the creditor. The position thus is that the borrower is gagged into a helpless position where he cannot ventilate his grievance against the drastic steps taken against him. The doors of the civil court are closed for him and no adjudicatory mechanism is provided before steps are taken under sub-section (4) of Section 13. Such a law, it is submitted, is arbitrary and suffers from the vice of unreasonableness.

20.    In so far it relates to Section 19 of the Act which provides, in case it is found that possession of the secured assets was wrongfully taken by the secured creditor he may be directed to return the secured assets to the borrower who may also be entitled to such compensation as may be determined by the debt recovery Tribunal or the appellate Tribunal, it is submitted that it is hardly a consolation after harsh steps as provided under sub-section 4 of section 13 have been taken.

21.    Shri Ashok Desai, learned counsel appearing in one of the matters namely, the case of M/s.Modern Terry Towel Ltd. leaving aside the questions of fact, submits that for exercise of power under Section 13, certain enquiries would be necessary as to whether a person to whom notice is given is under a liability to pay as also the question of extent of the liability etc. Further the questions pertaining to law of limitation and bar under consortium agreements, claim of set off/counter claim, creditors defaults as bailee or its failure to disburse the credit in time, the chargeability of penal interest or compound interest or non-appropriation of amount already paid and so on and so forth, all these questions need to be decided. Bar of Section 22 of the Sick Industrial Companies Act (for short 'SICA) may have to be considered. But there is no adjudicatory body provided for dealing with such disputes. Relying on a decision of this Court reported in 2002(5) SCC p.685, Indian National Congress (I) Vs. Institute of Social Welfare and others, observations made by one of us (Chief Justice V.N.Khare) have been relied upon as quoted below:- "Thus, where there is a lis or two contesting parties making rival claims and the statutory authority under the statutory provision is required to decide such a dispute, in the absence of any other attributes of a quasi- judicial authority, such a statutory authority is quasi-judicial authority.

But there are cases where there is no lis or two contending parties before a statutory authority yet such a statutory authority has been held to be quasi-judicial and decision rendered by it as a quasi-judicial decision when such a statutory authority is required to act judicially. In R v. Dublic Corpn. It was held thus :

"In this connection the term judicial does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for purpose of this question, a judicial act seems to be an act done by competent authority upon consideration of facts and circumstances and imposing liability or affecting the rights. And if there be a body empowered by law to enquire into facts, making estimates to impose a rate on a district, it would seem to me that the acts of such a body involving such consequences would be judicial acts."

"Applying the aforesaid principle, we are of the view that the presence of a lis or contest between the contending parties before a statutory authority, in the absence of any other attributes of a quasi-judicial authority is sufficient to hold that such a statutory authority is quasi-judicial authority. However, in the absence of a lis before a statutory authority, the authority would be quasi- judicial authority if it is required to act judicially."

It is submitted that power to decide a lis is a judicial or quasi- judicial power and not purely an administrative power. Therefore a suitable forum has to be provided to decide all such disputes at an appropriate stage. In that connection reliance has also been placed on a case reported in 1992 Suppl.(2) SCC p.651, Kihoto Hollohan v. Zachillhu & Ors. and Associated Cement Companies Ltd. v. P.N.Sharma (1965(2) SCR p.366 at pages 386-87). It is submitted any power which is exercised by a party to enforce security by way of sale etc. without any determination of disputed questions, as in the existing law, under Section 13 of the Act, is unconstitutional. It is further submitted that legislature has vested the beneficiary to exercise the power without any determination of disputed questions excluding the judicial remedies till the power stands exercised. It renders the Act procedurally and substantively unfair, unreasonable and arbitrary. Power of judicial determination, it is submitted, is manifestation of sovereign power to determine the legal rights which cannot be vested in private bodies as foreign banks, cooperative banks or non-banking financial institutions etc. Stress has also been given upon the condition of deposit of 75% of claim before entertainment of the appeal.

22.    It is next submitted that power under Section 69 of the Transfer of Property Act is hedged with various restrictions to prevent abuse of power including mortgagor's right to have recourse to court both before and after the sale. In this connection, he has referred to decisions of the Madras High Court reported in AIR 1955 Madras P. 135, V.Narasimhachariar vs. Egmore Benefit Society, and also AIR 1955 Madras 343, V.P.Padmavati vs. P.S.Swaminathan Iyer. It is submitted that English mortgage is in the nature of conveyance or absolute transfer of mortgage property with provision of retransfer upon discharge of mortgage and referred to AIR 1969 Mysore p.280, Bank of Maharashtra Ltd., Puna Vs. Official Liquidator, High Court Buildings. It is submitted that the scope of Section 13 of the Act is fundamentally different from the scope of power under Section 69 of the Transfer of Property Act.

23.    Shri Dholakia, learned senior counsel appearing on behalf of the guarantors of the principal borrower, refers to Section 2(f) of the Act to indicate that the definition of the word 'borrower' covers even the guarantor. He then refers to Section 135 of the Contract Act to show that in certain circumstances a guarantor is discharged of his obligation. The petitioner received a notice under Section 13(2) of the Act. The submission is in view of the bar of Section 34 to file a suit in the Civil Court, it is not possible for him to approach the Court to show and establish that he is a discharged guarantor, hence notice under Section 13(2) is bad and refers to 1997(5) SCC p.536 at page 735 Mafatlal Industries Ltd. and Ors. Vs. Union of India and Ors. He next referred to Section 31 of the Act. It is submitted that the word 'security' has not been defined under Section 2 of the Act. Then refers to Section 2(t) of the Act which defines the word 'property' which means a movable, immovable, or any right to receive payment, receivable intangible assets etc. It is submitted that the Act not to apply to the legal liens. Further refers to Laws of Halsbury's, 4th Edition, Vol.28, pages 510-511 and Section 48 of the Transfer of Property Act. It is submitted that if property is subject to several charge as first charge, second charge and third charge and so on property in relation to only one of them would be NPA and not in relation to other creditors having charge over the property. It is submitted that it is not clear in such a situation how the Act will be workable.

24.    He also refers to Section 44 of the Transfer of Property Act which deals with the case of transfer by one co- owner and the difficulty to work out the provisions of the Act in such cases.

25.    As against the above submissions, the case of the respondents is that financial institutions are badly effected by non-recovery of dues and despite the existing laws like, the Recovery of Debts due to Banks and Financial Institutions Act, much could not be achieved, hence it was necessary to take further legislative steps to accelerate recovery of the heavy amount of dues. It is submitted that after availing the facility of financial assistance quite often the borrowers hardly show interest in repayment of loan which keep on accumulating as a result of which it becomes difficult for the financial institutions to continue the financial assistance to deserving parties due to heavy blockade of money stuck up with the erring borrowers. It is not good for a financial institution to have heavy NPA. It has also been indicated that since after enforcement of the Act there has been marked improvement in the recovery and quite substantial amount has since been recovered.

26. Shri Soli J.Sorabjee, learned Attorney General, appearing for the Union of India submitted that the Act was enacted to curb the menace of growing non-performing assets (NPAs). It affects the banks and financial institutions which is ultimately against the public interest. Due to non-recovery of the dues the banks also run out of the financial resources to further carry on the financial activity and to meet the need and requirement of its other depositors and clients. The figures of NPA which have been given border around one lac crores. After coming into force of the Recovery of Debts due to Banks and Financial Institutions Act and establishment of Debt Recovery Tribunals the success in recovery has not been very encouraging. Therefore, need was felt for a faster procedure empowering the secured creditors to recover their dues and for securitisation of financial assets so as to generate maximum monetary liquidity. It has been felt that after coming into force of the Act there is a marked difference in realization of dues and more borrowers are coming forward to pay up the defaulted amount and clear the dues. It is submitted that in case a defaulter wants to raise any objection it may be raised in reply to the notice which would obviously be considered by the secured creditor before it would further proceed to take recourse to sub-section 4 of Section 13 of the Act. It is further submitted that there will be ample time for a borrower to approach the Debt Recovery Tribunal to seek relief before sale of the secured assets. The remedy as provided under Section 17 of the Act it is adequate and the condition of deposit of 75% of the claim before the appeal could be entertained is not an unusual condition and it is to be found in other statutes also. It is then submitted that proviso to Section 17 very clearly provides that on an application moved in that behalf the condition of deposit of the amount can be waived or the amount can be reduced. Therefore, it would not be correct to say that condition of pre-deposit is harsh as it can be relaxed in deserving cases. The bar of jurisdiction of the Civil Court was thought to be necessary to avoid lengthy legal process in realizing the amount due. It is then submitted that normally there should be a presumption in favour of validity of a legislation more so in regard to the laws relating to economic and financial matters and a few instances here and there of any harsh results would not be a valid consideration to invalidate the law.

27.    Shri Harish N.Salve, learned senior counsel appearing for the ICICI submits that the purpose of enacting the Act would be self-evident from the statement of objects and reasons for the enactment which reads as under: "The financial sector has been one of the key drivers in India's efforts to achieve success in rapidly developing its economy. While banking industry in India is progressively complying with the international prudential norms and accounting practices, there are certain areas in which the banking and financial sector do not have a level playing field as compared to other participants in the financial markets in the world. There is no legal provision for facilitating securitisation of financial assets of banks and financial institutions. Further, unlike international banks, the banks and financial institutions in India do not have power to take possession of securities and sell them. Our existing legal framework relating to commercial transactions has not kept pace with the changing commercial practices and financial sector reforms. This has resulted in slow pace of recovery of defaulting loans and mounting levels of non-performing assets of banks and financial institutions. Narasimham Committee I and II and Andhyarujina Committee constituted by the Central Government for the purpose of examining banking sector reforms have considered the need for changes in the legal system in respect of these areas."

28.    It is submitted that the question of enactment of the Act was under consideration for long and first Narasimham Committee and then Andhyarujina Committee were constituted by the central government for introducing reforms in the banking sector necessary for recovery of the outstanding dues of the financial institutions. The practice of securitisation of debts is in vogue all over the world. That is to say a measure of replenishing the funds by recourse to the secondary market. There are organizations who undertake exercise of securitisation. Such organizations take over the financial assets and in turn issue securities.

29.    It is submitted that the funding of the debts is feasible only where there exists an efficacious and expeditious machinery for realization of debts for investors in such securities. It is submitted that in England a mortgagee under a legal mortgage has a right to take possession, to sell, and even appoint a receiver in relation to mortgaged properties without recourse to a court of law. It is also submitted that provisions as contained under Section 9 of the Act are also valid. The securitisation is done in accordance with the guidelines framed by the Reserve Bank of India. In so far the provisions contained under Section 15 of the Act and the challenge made to it, it is submitted that it is referable to Section 9 and not to Section 13(4) (a) of the Act.

30.    Shri Andhyarujina, learned senior counsel appearing for the Life Insurance Corporation of India stressed upon the background in which the impugned legislation was enacted pressed by circumstances, namely, over growing non- performing assets crippling the viability of financing by banking sector and financial institutions. It ultimately effects the process of industrialization and growth of national economy. It was difficult to get quick relief from the normal procedure of laws. The recovery through Debt Recovery Tribunals was also insignificant. Based on the recommendations of the Narasimham Committee, an expert committee recommended the legal framework concerning banking system. It is submitted that the provisions as contained in Chapter III of the Act are in keeping with provisions as contained under Section 69 of the Transfer of Property Act regarding sale of security interest without intervention of the court like Section 29 of the State Financial Corporation Act, 1951 and Section 176 of the Contract Act. It is submitted that the relationship between secured creditor and the borrower is a contractual relationship and no question of adjudication arises at the stage of Section 13(2) of the Act.

31.    Shri A.M. Singhvi has also made similar submissions in support of validity of the Act.

32.    As indicated earlier, arguments on the same lines were advanced by some of the counsels and others adopted the same.

33.    Taking an overall view of the rival contentions of the parties, we feel the main questions which broadly fall for consideration by us are :

i)    Whether it is open to challenge the statute on the ground that it was not necessary to enact it in the prevailing background particularly when another statute was already in operation?

ii)    Whether provisions as contained under Section 13 and 17 of the Act provide adequate and efficacious mechanism to consider and decide the objections/disputes raised by a borrower against the recovery, particularly in view of bar to approach the civil court under Section 34 of the Act?

iii)    Whether the remedy available under Section 17 of the Act is illusory for the reason it is available only after the action is taken under Section 13(4) of the Act and the appeal would be entertainable only on deposit of 75% of the claim raised in the notice of demand?

iv)    Whether the terms or existing rights under the contract entered into by two private parties could be amended by the provisions of law providing certain powers in one sided manner in favour of one of the parties to the contract?

v)    Whether provision for sale of the properties without intervention of the court under Section 13 of the Act is akin to the English mortgage and its effect on the scope of the bar of the jurisdiction of the civil court?

vi)    Whether the provisions under Sections 13 and 17(2) of the Act are unconstitutional on the basis of the parameters laid down in different decisions of this Court?

vii)    Whether the principle of lender's liability has been absolutely ignored while enacting the Act and its effect?

34.    Some facts which need be taken note of are that the banks and the financial institutions have heavily financed the petitioners and other industries. It is also a fact that a large sum of amount remains unrecovered. Normal process of recovery of debts through courts is lengthy and time taken is not suited for recovery of such dues. For financial assistance rendered to the industries by the financial institutions, financial liquidity is essential failing which there is a blockade of large sums of amounts creating circumstances which retard the economic progress followed by a large number of other consequential ill effects. Considering all these circumstances, the Recovery of Debts Due to Banks and Financial Institutions Act was enacted in 1993 but as the figures show it also did not bring the desired results. Though it is submitted on behalf of the petitioners that it so happened due to inaction on the part of the governments in creating Debt Recovery Tribunals and appointing Presiding Officers, for a long time. Even after leaving that margin, it is to be noted that things in the concerned spheres are desired to move faster. In the present day global economy it may be difficult to stick to old and conventional methods of financing and recovery of dues. Hence, in our view, it cannot be said that a step taken towards securitisation of the debts and to evolve means for faster recovery of the NPAs was not called for or that it was superimposition of undesired law since one legislation was already operating in the field namely the Recovery of Debts due to Banks and Financial Institutions Act. It is also to be noted that the idea has not erupted abruptly to resort to such a legislation. It appears that a thought was given to the problems and Narasimham Committee was constituted which recommended for such a legislation keeping in view the changing times and economic situation whereafter yet another expert committee was constituted then alone the impugned law was enacted. Liquidity of finances and flow of money is essential for any healthy and growth oriented economy. But certainly, what must be kept in mind is that the law should not be in derogation of the rights which are guaranteed to the people under the Constitution. The procedure should also be fair, reasonable and valid, though it may vary looking to the different situations needed to be tackled and object sought to be achieved.

35.    As referred to above, the Narasimham Committee was constituted in 1991 relating to the Financial System prevailing in the country. It considered wide ranging issues relevant to the economy, banking and financing etc. Under Chapter V of the Report under the heading 'Capital Adequacy, Accounting Policies and other Related Matters' it was opined that a proper system of income recognition and provisioning is fundamental to the preservation of the strength and stability of banking system. It was also observed that the assets are required to be classified, it also takes note of the fact that the Reserve Bank of India had classified the advances of a bank, one category of which was bad debts/doubtful debts. It then mentions that according to the international practice, an asset is treated as non-performing when the interest is overdue for at least two quarters. Income of interest is considered as such, only when it is received and not on the accrual basis. The Committee suggested that the same should be followed by the banks and financial institutions in India and an advance is to be shown as non-performing assets where the interest remains due for more than 180 days. It was further suggested that the Reserve Bank of India should prescribe clear and objective definitions in respect of advances which may have to be treated as doubtful, standard or sub-standard, depending upon different situations. Apart from recommending to set up of special Tribunals to deal with the recovery of dues of the advances made by the banks the committee observed that impact of such steps would be felt by the banks only over a period of time, in the meanwhile, the Committee also suggested for reconstruction of assets saying "the Committee has looked at the mechanism employed under similar circumstances in certain other countries and recommends the setting up of, if necessary by special legislation, a separate institution by the Government of India to be known as 'Assets Reconstruction Fund (ARF) with the express purpose of taking over such assets from banks and financial institutions and subsequently following up on the recovery of dues owed to them from the primary borrowers." While recommending for setting up of special Tribunals, the Committee observed : "Banks and financial institutions at present face considerable difficulties in recovery of dues from the clients and enforcement of security charged to them due to the delay in the legal processes. A significant portion of the funds of banks and financial institutions is thus blocked in unproductive assets, the values of which keep deteriorating with the passage of time. Banks also incur substantial amounts of expenditure by way of legal charges which add to their overheads. The question of speeding up the process of recovery was examined in great detail by a committee set up by the Government under the Chairmanship of the late Shri Tiwari. The Tiwari Committee recommended, inter alia, the setting up of Special Tribunals which could expedite the recovery of process...."

The Committee also suggested some legislative measures to meet the situation.

36.    In its Second Report, the Narasimham Committee observed that the NPAs in 1992 were uncomfortably high for most of the public sector banks. In Chapter VIII of the Second Report the Narasimham Committee deals about legal and legislative framework and observed :

"8.1 A legal framework that clearly defines the rights and liabilities of parties to contracts and provides for speedy resolution of disputes is a sine qua non for efficient trade and commerce, especially for financial intermediation. In our system, the evolution of the legal framework has not kept pace with changing commercial practice and with the financial sector reforms. As a result, the economy has not been able to reap the full benefits of the reforms process. As an illustration, we could look at the scheme of mortgage in the Transfer of Property Act, which is critical to the work of financial intermediaries.........."

One of the measures recommended in the circumstances was to vest the financial institutions through special statutes, the power of sale of the asset without intervention of the court and for reconstruction of the assets. It is thus to be seen that the question of non-recoverable or delayed recovery of debts advanced by the banks or financial institutions has been attracting the attention and the matter was considered in depth by the committees specially constituted consisting of the experts in the field. In the prevalent situation where the amount of dues are huge and hope of early recovery is less, it cannot be said that a more effective legislation for the purpose was uncalled for or that it could not be resorted to. It is again to be noted that after the report of the Narasimham Committee, yet another committee was constituted headed by Mr.Andhyarujina for bringing about the needed steps within the legal framework. We are therefore, unable to find much substance in the submission made on behalf of the petitioners that while the Recovery of debts due to Banks and Financial Institutions Act was in operation it was uncalled for to have yet another legislation for the recovery of the mounting dues. Considering the totality of circumstances the financial climate world over, if it was thought as a matter of policy, to have yet speedier legal method to recover the dues, such a policy decision cannot be faulted with nor it is a matter to be gone into by the courts to test the legitimacy of such a measure relating to financial policy.

Smt. Laxmi Devi vs Sethani Mukand Kanwar
Supreme Court of India- Equivalent citations: 1965 AIR 834, 1965 SCR (1) 726 - Bench: Gajendragadkar, P.B. (Cj), Wanchoo, K.N., Hidayatullah, M., Mudholkar, J.R. - Date of Judgment: 09/10/1964

ACT:
Transfer  of Property Act (4 of 1882), ss. 2(d), 5 and    100- Auction sale in execution of decree-If transfer of property- Charge-If enforceable against auction purchaser.

Code  of  Civil     Procedure (Act 5 of 1908), 0.    21,  r.     90-Substantial injury-What is-Application to set aside  auction sale-Averment regarding substantial injury-Necessity for.



HEADNOTE:
The  2nd respondent obtained a money decree against the     3rd
respondent and in execution of that decree brought the    suit
property  to sale and the appellant purchased it.  Prior  to
the sale, however, there was a decree, in favour of the     1st
respondent,  for  arrears of maintenance, and  a  charge  in
favour    of the 1st respondent was declared over the  proper-
ties  of  the 3rd respondent, including the  suit  property.
The  1st respondent therefore filed an application under  0.
21, r. 90 of the Code of Civil Procedure, 1908, to set aside
the  sale.   The Executing Court dismissed  the     application
holding that she had failed to show any substantial  injury.
The order was set aside by the High Court on appeal.  In the
appeal    to  the     Supreme Court, it was    contended  that     the
application  should  be     dismissed as :     (i)  there  was  no
allegation  of    substantial injury in the  application,     and
(ii)  in  fact    the  1st respondent  had  not  suffered     any
substantial injury.

HELD : The appeal should be allowed.

While  s.  5 of the Transfer of Property Act,  1882  defines
"transfer of property" only as a transfer effected by act of
parties inter vivos, s. 2(d) provides that save as  provided
by Chapter IV of the Act, the provisions of the Act are     not
deemed    to affect transfers in execution of decrees.   Since
the  positive  provision  in s. 2(d)  prevails    over  s.  5,
Chapter IV and s. 100 in that Chapter would apply to auction
sales in execution of decrees.    Section 100 provides that  a
charge    shall  not be enforced against any property  in     the
hands of a person to whom the property has been     transferred
for  consideration  and without notice of the  charge.     The
result    would  be  that as a  consequence  of  the  material
irregularity in not referring to the charge in favour of the
1st  respondent in the proclamation of sale under 0. 21,  r.
66  of    the Civil Procedure Code, 1908, the  1st  respondent
would  not  be able to enforce the charge against  the    suit
property  purchased by the appellant in auction sale.    When
injury is thus implicit in the irregularity it would be     too
technical  to  dismiss the application on  the    ground    that
there  was  no    express averment of  substantial  injury  as
required by the proviso to 0. 21 r. 90(1) of the Code.     But
the  application  should however be dismissed,    because     the
injury    suffered  by the 1st respondent was not     in  fact  a
substantial injury. There were other propertiesto     the
charge    and  they  would  be  available     to  meet  all     her
legitimateby   way of maintenance. [731 C-D, G; 732  B;
733 E-G; 734 E-F; 735E-F, H]
Nawal  Kishore v. The Municipal Board, Agra,  I.L.R.  [1943]
AU.  453 (F.B.), R. L. Nanadkeolvar v. Sultan Jahan,  I.L.R.
31 Pat. 722 and
727
Munna  Singh  Allah  Singh v. Wasti Ram     Saraf    and  others,
A.I.R. 1960 Punj. 296, approved.
Arumilli  Surayya v. Pinisetti Venkataramanamma and  others,
A.I.R. 1940 Mad. 701 and Creet v. Ganga Ram Gool Rai, I.L.R.
[1937] 1 Cal. 203, overruled.



JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 247 of 1962. Appeal    from the judgment and order dated July 29, 1960, of the Rajasthan High Court in D. B. Civil Misc. Appeal No. 54 of 1957.

Bishan    Narain, Amar Chand Inani and B. P. Maheshwari,    for the appellant.

B. D. Sharma, for respondent No. 1.

The Judgment of the Court was delivered by Gajendragadkar C.J. This appeal arises out of an application made by respondent No. 1, Smt.    Mukand Kanwar,    challenging the validity of an auction sale held on the 14th May,    1954 in execution of a money decree passed in favour of Ratan Lal Dani,    Secretary, Hindu Charitable Aushdhalaya, Ajmer, respondent No. 2, and against Umrao Mal, respondent No. 3. The property sold at the auction sale is "old Daikhana" at Ajmer.    On the 24th June, 1950, Umrao Mal who was the owner of the property, mortgaged it to the appellant Laxmi Devi. Later,    respondent No. 2 obtained a money decree against respondent No.    3 for a large amount, and in execution of this money decree he brought the property in    question to sale. Auction sale was accordingly held on the 14th    May, 1954, and the appellant purchased the property    subject to the preexisting mortgage in her favour. The    amount    due under the mortgage was Rs. 33,264 and as auction-purchaser, the appellant    paid Rs. 2,800 whereby    she purchased the equity    of redemption    vesting in respondent    No. 3,    the judgment-debtor. It is the validity of this sale that is challenged in the present proceedings.

Long before the mortgage was executed, respondent No. 3    had executed in favour of his mother, respondent No. 1, a docu- ment whereby her maintenance was guaranteed. This document had created charge over certain properties belonging to respondent No.    3. On    the strength    of this document, respondent No. 1 sued- respondent No. 3 (civil suit No.    233 of 1952). In this suit, she claimed arrears of    maintenance and asked for a declaration that the properties specified in the plaint, which were the same as the properties covered by the    previous agreement between    the parties,    were subject to    a charge for    her maintenance. The trial Court gave her a decree for arrears of maintenance, but declined to make the declaration as to charge    claimed by her.    This decree, was pronounced on    the 31st July, 1952. Against this decree, respondent No. 1 preferred An appeal (No. 80 of 1952) to the Judicial Commissioner, Ajmer. Her appeal succeeded and    the charge over the properties was declared in    her favour.    This decision was pronounced on the 10th February, 1954. After the auction sale was held on the 14th May, 1954, it was challenged by two separate applications, one was made by respondent No.    3, the judgment-debtor, on the    28th June, 1954, and the other by respondent No. 1 on the    same date. Both these applications were made under 0. 21 r. 90 of    the Code of Civil Procedure. The application made by respondent No. 3 was dismissed on the 30th April, 1955, while    the application made by respondent No. 1 went to a trial.    The Executing Court which heard this application    tried three issues.    The first issue was whether the sale had    been vitiated by any irregularity as required by 0. 21 r.    90. The second was whether respondent No. 1 was a person whose interests had been affected by the impugned sale; and    the third was whether the irregularity alleged by respondent No. 1 had caused substantial loss to her. All these issues were decided    in favour of respondent No. 1. In the    result,    the impugned sale was set aside on the 4th May, 1955. The appellant challenged the correctness of this decision before    the Judicial Commissioner, Ajmer. It was urged on behalf    of the    appellant that the application made by respondent No. 1 did not satisfy the requirements of 0. 21 r. 90 of the Code inasmuch as appropriate allegations    had not been made in the application showing that substantial injury    had been suffered by respondent No. 1 by reason of the irregularities which, according to her, had vitiated the said sale. This plea was rejected    by -the Judicial Commissioner. It was then urged that respondent No. 1    was not competent to make the said application. The Judicial Commissioner did not    accept even this plea. The    last argument which was pressed before the Judicial    Commissioner was that the finding recorded by the Executing    Court    that respondent No.    1 had suffered substantial injury was    not justified, and that    in fact, the    appellant had    no opportunity to lead her evidence on that issue, because    all the three issues on which the Executing Court had made    its findings had been framed by it at a very late stage of    the proceedings.

This plea was upheld by the Judicial Commissioner, and    so, he set    aside the finding of the Executing Court on    that issue and sent the case back for disposal in accordance with law, with a direction that the issue    as to    substantial injury should be tried afresh.    This order was pronounced on the 26th August, 1955.

After remand, the Executing Court considered the issue as to substantial injury and held that respondent No. 1 had failed to show any substantial injury. As    a result of    this finding, it ordered that her application under 0. 21 r. 90 should be dismissed, and the sale should be confirmed.    This order was pronounced on the 27th April, 1957. Aggrieved by this order, respondent No. 1 preferred an appeal, and since the High, Court of Judicature at Rajasthan had then come into existence, her appeal was heard by    the said High Court. The High Court has held that the Executing Court was in    error in coming to the conclusion    that respondent No.    1 had not proved substantial injury.    The contentions raised by    the appellant    in support of    the ultimate decision reached by    the Executing    Court    were rejected by the High Court, and as a result, the application made by respondent No. 1 was allowed and the impugned    sale set aside. This appellate order was pronounced on the    29th July, 1960. It    is against this order that the    appellant has come to this Court    with a certificate granted by    the said High Court. Thus, it willbe noticed that the sale which took place on the 14h May, 1954    still remains to be confirmed.

On behalf of the appellant, Mr. Bhasin Narain has conceded that as a person holding a charge over the property sold at the auction sale, respondent No. 1 can rely on s. 100 of the Transfer of Property Act and as such was competent to    make the application under    0. 21 r. 90. Order 21, r. 90(1) provides, inter alia. that where any immovable property    has been sold in    execution of a decree, any person whose interests are affected by the sale, may apply to the Court to set    aside the sale on the ground of    a material irregularity or fraud in publishing or conducting it. There is a proviso to this rule which is relevant for our purpose. This proviso lays down that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved,    the Court is satisfied that    the applicant    has sustained substantial injury by reason of such    irregularity or fraud. While conceding that respondent    No. 1    was entitled to make an application as a person whose interests were affected by the impugned sale, Mr. Bishan Narain argues that if the application made by her is properly construed, it would appear that the material allegations of fact which must be made by the applicant invoking 0. 21 r. 90(1),    have not been made; and so, the said    application should    be. dismissed on that ground alone. On the merits, he contends that there is no evidence on which a finding can be made in favour of respondent No. 1 that she has suffered substantial injury by reason of any irregularity committed in the conduct of the sale.

The application made    by respondent No. 1 is no doubt somewhat defective, because it does not, in terms, allege that as a result of    the irregularity alleged in    the application, respondent No. 1 has suffered    substantial injury.    The application avers that before the impugned auction    sale was held, a proclamation had been issued,    but the said proclamation did not refer to the charge in favour of respondent    No. 1 which had already been recognised by decree in a suit between respondent No. 1 and respondent No. 3 and that naturally attracts the provisions of 0. 21 r. 66 of the    Code.    Order 21 r. 66(2) (e)    requires that    the proclamation shall be drawn up and shall specify as fairly and accurately    as possible any incumbrance to which    the property sought to be sold is liable. The failure to mention    the charge in favour of respondent No. 1 would, therefore, constitute an irregularity within the meaning of

0. 21 r. 90(1).    This position is also not in dispute. The contention, however, is that the application made by respondent No. 1 does not show what injury she has suffered as a result of the said irregularity, and that, it is argued,    constitutes a serious infirmity in the    application which would entail its dismissal. On the other hand,    Mr. Sharma for respondent No. 1 has relied on the fact that    the auction    sale would virtually wipe out    or extinguish    the rights    which have accrued to respondent No. 1 by virtue of the charge declared by a decree in her favour, and he    has suggested that the legal consequence flowing from the    fact that the auction sale has been held without notice of    the charge    in favour of respondent No. 1    itself    constitutes substantial injury to the interests of respondent No. 1. This argument is based on the latter part of S. 100 of    the Transfer of Property Act. We will presently refer, to    this provision. At this stage, it is enough to state that if Mr. Sharma    is right in contending that an auction sale of immovable property which has followed the    proclamation issued    under 0. 21 r. 66 in which no reference to a charge is made, materially affects the rights of the charge-holder, some injury would automatically flow from the irregularity alleged    in the application filed by respondent No. 1,    and so, it would not be appropriate to    hold that the said application should be dismissed on the ground that no substantial injury has    been alleged as required by the proviso to 0. 21 r. 90(1). It is true that before an application made under 0. 21 r..90 can succeed, the applicant has to show that the impugned sale was, vitiated by a material irregularity or fraud in publishing or conducting it; and as required by the proviso, it is also necessary that he should show that in consequence of the said    irregularity or fraud    he had sustained substantial injury. Therefore, Mr. Bishan Narain is right when he contends that the application made by respondent No. 1 ought to contain an allegation in regard to the material irregularity as well as an allegation-as to    substantial injury. But, in our opinion, in a case like the present, where substantial injury is alleged to be implicit in the material irregularity set out in the application, it would be, too technical to hold that the application should be dismissed on the preliminary ground that no    specific or express    averment has been made as to    substantial injury suffered by respondent No. 1.

Now, in dealing with the question as to whether respondent No. 1    can be said to have alleged that she has suffered substantial injury by    reason of the    fact that she    has alleged    a material irregularity which, in law,    necessarily leads to substantial injury, it is necessary to consider the question as to whether the latter part of s.    100 of    the Transfer of Property    Act applies to    the present case. Section    100 deals with charges, and it provides when a person    can be said to have a charge on the property;    and adds that all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge. It is common ground that respondent No. 1    can claim to be charge-holder as defined by s. 100. That takes us    to the latter part of s. 100.    This part provides, inter alia,    that save as    otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person    to whom such property    has been transferred    for consideration and without notice of the charge.    Mr. Sharma contends that the auction-purchaser holds the property as a result of the auction sale, and in that sense, the property must be held to have been transferred to him. He adds    that the charge was not notified in the proclamation, and so, the auction purchaser has no notice of the charge, and the    sale is undoubtedly supported by consideration. In other words, the case of the appellant directly falls under this part of s. 100, and so, respondent No. 1 would not be able to enforce her charge    against    the property purchased by the appellant at the auction sale. That, according to him, constitutes substantial injury. This argument raises the question as to whether the relevant provision of s. 100 takes in the cases of auction purchase at all. For answering this question, it is necessary to refer to two other provisions of the Transfer    of Property Act. Section 2(d) provides that nothing herein contained shall be deemed to affect, save as provided by S. 57    and Chapter IV of this Act, any transfer by operation of law or by, or    in execution of, a decree or order of    a Court of competent jurisdiction. The effect of this provision is that the provisions of the Transfer of Property Act will not apply to any    transfer by operation of law or    by, or in execution of,    a decree or order of a    Court of competent jurisdiction.    This provision is clear and emphatic.    It says that nothing in the Transfer of Property Act will apply to the transfers just indicated; and that would naturally take in the whole of S. 100. But there is an exception made to this provision by S. 2(d) itself by the saving clause, and this exception covers cases provided by    s. 57    and Chapter    IV. Chapter IV deals with mortgages of immovable property and charges.. and includes sections    58 to 104. Section    100, therefore, falls within Chapter IV; and,    the result    of the saving clause is that s. 100 would apply to transfers by operation of law. There    is, therefore, no doubt that if the question as to the applicability of    the latter    part of S. 100 to cases of auction sales had to be determined only by reference to S. 2(d), the answer would clearly be in favour of such applicability. It is    true that when S. 2(d) was originally enacted,    the latter    part of S. 100 was not included in the    Transfer of Property Act; this was added in 1929 by S. 50 of Act 20 of 1929.    That, however,    would make no    difference to    the interpretation of the relevant clause in s. 2(d). The    fact that the saving clause included in s. 2(d)    as it    was originally enacted, could not have taken in the latter    part of s. 100, makes no difference to its construction, because as soon as the latter provision was added to    S. 100, it became a part of the provisions contained in Chapter IV    and automatically fell within the terms of the saving clause. If the legislature had intended that the provision added to s. 100 in 1929 should not fall within the saving clause, an appropriate provision would have been made by    amending S. 2(d) in that behalf. Therefore, s. 2(d) by itself clearly supports Mr. Sharma's contention that the appellant who is an auction-purchaser would be able to claim immunity against the enforcement of the charge in favour of respondent No. 1 by virtue of the provisions contained in the latter part of s. 100.

This position, however, has become somewhat complicated by reason    of the provisions contained in s. 5 of the Transfer of Property Act. Section 5 provides, inter aria, that in the following sections "transfer of property" means an    act by which a living person conveys property, in present or in future,    to one or more other living    persons. In other words, in terms, the definition of the expression "transfer of property" as used in all the sections of the Transfer of Property Act is intended to take in transfers    effected by acts of parties inter vivos, and an auction-sale clearly is not such an act. Section 5 would, therefore, appear to exclude auction sales from the purview of s. 100 altogether. This result would appear to be consistent with the provision in the preamble of the Act which says that the Transfer of Property Act was enacted because it was thought expedient to define    and amend certain parts of the law relating to    the transfer of property    by act of parties. That is    the position which emerges from the reading of s. 5 coupled with the preamble; and that naturally raises the question as to how to reconcile these two inconsistent positions. In our opinion, the positive provision contained in s.    2(d) must prevail over the definition of "transfer of property" prescribed by s. 5. No doubt, the purpose of the definition is to    indicate the class of transfers to    which    the provisions of the Transfer of Property Act are intended to be applied; but a definition of this kind cannot over-ride the clear and positive direction contained in the specific words used by s. 2 (d).    As we have already seen, the result of the saving clause enacted by s. 2(d) is to emphasise    the fact that the provisions of s. 57 and those contained in Chapter IV must apply to transfer by operation of law.    Such a positive provision cannot be made to yield to what    may appear to be the effect of the, definition prescribed by s. 5, and so, we are inclined to hold that notwithstanding    the definition prescribed    by s. 5, the latter part of s.    100 must be deemed to include auction sales.

This question    has been considered by our High Courts on several    occasions, and, on the whole, the majority    view appears to be in favour of the conclusion which we have just indicated. In Nawal Kishore v. The Municipal Board, Agra, (1), this question was referred to a Full Bench of the Allahabad High    Court,    because there    appeared to be a conflict between two previous decisions of (1)I.L.R. [1943] All. 453.

Division Benches of the said High Court on    this point. These two decisions were Rai    Indra Narain    v. Muhammed Ismail(1), and    Municipal Board, Kanpore v.    Roop Chand Jain(2). In the first decision, the Allahabad    High Court had taken the view that auction sales do not fall within the purview    of the latter part of s. 100, while in    the latter case, a contrary view had been accepted. The    Full Bench preferred that latter view to the former. Since this    Full Bench decision was pronounced in the Allahabad High Court, auction-purchasers have been consistently held to fall under the latter part of S. 100. It has been held by the    Full Bench that when the relevant clause in the latter part of S. 100 speaks of any property in the hands of person to    whom such property has been transferred, the concept of transfer is wide enough to include transfers effected    by acts of parties    as well as transfers effected by operation of    law. The same view has been accepted by the Patna High Court in R. L.    Nanadkeolvar v. Sultan Jehan(3), and by    the Punjab High Court in Manna Singh Al1ah Singh v. Wasti Ram Saraf and Others(1). The decision of    the Madras High Court in Arumilli Surayya v. Pinisetti Venkataramanamma and Ors.(5) and the decision of the Calcutta High Court in Creet v. Ganga Ram Gool Raj,(1) which appear to support the contrary view do not, in our opinion, correctly represent the    true legal position in this matter.    Therefore, we must deal with the present appeal on the basis that as a result of    the failure of the proclamation to refer to the charge in favour of respondent No. 1, she would not be able to    enforce    her charge    against the property purchased by the appellant by auction sale; and that means that the impugned sale has been conducted in a materially irregular manner and as a conse- quence of the said irregularity, some injury has resulted to respondent No. 1.

That raises the question as to whether the said injury    can be said to amount to substantial injury within the meaning of proviso to 0. 21 r. 90(1); and this inevitably would be a question of fact. The High Court appears to have held    that as soon as it is shown that the charge would become unenforceable against    the appellant auction-purchaser by virtue    of the provisions of S. 100, it follows as a matter of law    that respondent No. 1 has suffered    substantial injury, and so, the impugned sale must be set aside. We are not prepared to accept this view. We do not think it can be reason-

(1) I.L.R. [1939] All. 885.

(2) I.L.R. [1940] All. 669.

(3) I.L.R. (1952) 31 Pat. 722.

(4) A.I.R. 1960. Punj. 296.

(5) A.I.R. .1940 Mad. 701.

(6) I.L.R. [1937] 1 Cal. 203.

ably assumed as a matter of law that in every case where a charge has become unenforceable against an auction-purchaser by reason of    the fact that it was    not shown in    the proclamation preceding the auction sale, it follows that the charge-holder has suffered substantial injury. Whether or not the injury suffered by the charge-holder is substantial, must depend upon several relevant    facts.    How    many properties have been sold at the auction sale; how many    out of them were the subject-matter of the charge; what is    the extent of the claim which the charge-holder can legitimately expect to enforce against the properties charged, these    and other relevant matters must be considered before deciding whether    or not the injury suffered by the charge-holder is substantial. It is from this point    of view that    the material facts in the present case must now be considered. Properties which are the subject-matter of the    charge    are five in number.    Out of these properties, it is property No. 3 alone which has been sold at auction sale.    It appears that properties Nos.    1 and 2 have already ceased to be available to the charge holder, and so, the consideration of the question as to whether the injury suffered by respondent No. 1 is substantial, must depend upon the relative values of properties    Nos. 4    and 6. This    question has    been considered by the Executing Court when the matter was    sent back to that Court by the Judicial Commissioner and    the Executing Court has made a definite finding that the injury suffered by respondent No.    1 cannot be said to    be substantial. According to it, properties Nos. 4 and 6 which would be available to respondent No. 1 would be enough to meet all her legitimate claims against the judgment-debtor, respondent No.    3. The value of Property No. 4 is    Rs. 1,18,967 whereas the value of property No. 6 is    Rs. 1,25,464. The Executing Court has taken into    account    the amount which respondent No. 1 is entitled to claim by way of maintenance from respondent No. 3, has also borne in    mind the fact that respondent No. 1 is an old lady past 70 years of age and has come to the conclusion that, on    the whole, the sale of property No. 3 to the auction-purchaser cannot be said to have caused substantial injury to her. In    our opinion, it is difficult to differ from this conclusion; and so, it follows that though respondent No. 1 has been able, to show that her charge could not be enforced    against    the appellant, it is not shown that this circumstance has caused substantial injury to her. The result, therefore, is    that the requirement of the proviso to 0. 21 r. 90 of the Code is not satisfied in the present case.

We ought to add that pending the appeal before this Court, respondent No. 3, Umrao Mal has died leaving behind him    his mother    respondent No. 1 and his widow, and the estate of Umrao Mal has    devolved on these two widows; and    so, respondent No.    1 has now become the owner of part of    the properties against which she would otherwise have    been entitled to proceed in execution of tier maintenance decree. The result is, the appeal is allowed, the order passed by the High Court is    set aside and the application made by respondent No.    1 under 0. 21 r. 90 is dismissed. There would be no order as to costs throughout.

Appeal allowed.

Harishchandra Hegde vs State of Karnataka
Supreme Court of India - Bench: S.B. Sinha, Arun Kumar - CASE NO.: Appeal (civil)  5385 of 1997 - DATE OF JUDGMENT: 18/12/2003

JUDGMENT 2003 Supp(6) SCR 1111 The following Order of the Court was delivered :

The short question which falls for consideration in this appeal arising out of a judgment and order dated 16.2.1996 passed by the High Court of Karnataka in Writ Appeal No. 1045 of 1992 is as to whether Section 51 of the Transfer of Property Act is applicable in the cases covered by Sections 4 and 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (the Act, for short).

On or about 1.5.1961, two acres of land in Survey No. 134/110 were granted by the Government of Karnataka in favour of one Smt. Gangamma. The appellant purchased the said land from her through a registered sale deed for valuable consideration on 13.9.1962 and allegedly invested a lot of money for improvement thereof. The Act came into force w.e.f. 1.1.1979.

By reason of Section 4 of the Act all the alienations made in contravention of the terms of Grant were declared as void and all such lands were resumed and restored to the original grantee in terms of Section 5 of the Act. On or about 11.9.1986, the original grantee made an application for initiation of a proceeding under Section 4 of the Act, in pursuance whereof the proceeding was initiated against the appellant. An order of restoration of the land in favour of the original grantee was made by the Assistant Commissioner on 29.5.1987. The appellant preferred an appeal before the Deputy Commissioner thereagainst which was also dismissed on 25.3.1989. The appellant thereafter filed a writ petition which was marked as Writ petition No. 23216 of 1990 for a declaration that any order passed by the Assistant Commissioner under Section 5 of the Act for restoration qf land would be subject to the right of the transferee to claim the value of the improvements as prescribed under Section 51 of the Transfer of Property Act. The said writ petition was dismissed by the learned Single Judge. The writ appeal filed by the appellant was also dismissed by reason of an order dated 16.2.1996.

The learned counsel appearing on behalf of the appellant would submit that having regard to the fact that the appellant herein purchased the land in question as far back as on 13.9.1962, he is entitled to the benefit of Section 51 of the Transfer of Property Act.

Sections 4 and 5 of the Act read as under :

"Section 4. Prohibition of transfer of granted lands. - (1) Notwithstanding anything in any law, agreement, contract or instrument, any transfer of granted land made either before or after the commencement of this Act, in contravention of the terms of the grant of such land or the law providing for such grant, or sub-section (2) shall be null and void and no right, title or interest in such land shall be conveyed or be deemed ever to have conveyed by such transfer.

(2) No person shall, after the commencement of this Act, transfer or acquire by transfer any granted land without the previous permission of the Government.

(3) The provisions of sub-sections (1) and (2) shall apply also to the sale of any land in execution of a decree or order of a civil court or any award or order of any other authority.

Section 5. Resumption or restitution of granted lands. - (1) where, on application by any interested person or on information given in writing by any person or suo motu, and after such enquiry as he deems necessary, the Assistant Commissioner is satisfied that the transfer of any granted land is null and void under sub-section (1) of Section 4, he may. -

(a) by order take possession of such land after evicting all persons in possession thereof in such manner as may be prescribed:

Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard;

(b) restore such land to the original grantee or his legal heir. Where it is not reasonably practicable to restore the land to such grantee or legal heir, such land shall be deemed to have vested in the Government free from all encumbrances. The Government may grant such land to a person belonging to any of the Scheduled Castes or Scheduled Tribes in accord-ance with rules relating to grant of land.

(2) Any order passed under sub-section (1) shall be final and shall not be questioned in any court of law and no injunction shall be granted by any court in respect of any proceeding taken or about to be taken by the Assistant Commissioner in pursuance of any power conferred by or under this Act.

(3) For the purposes of this section, where any granted land is in the possession of a person, other than the original grantee or his legal heir, it shall be presumed, until the contrary is proved, that such person has acquired the land by a transfer which is null and void under the provisions of sub-section (1) of Section 4."

The High Court in its impugned judgment noticed that the validity of the Act was upheld by the High Court in Krishnappa S. V. & Others v. State of Karnataka & Ors., ILR (1982) 2 Kar, 1310, stating :

"Thus, if an alienee of a granted land is evicted by the Assistant Commissioner under Section 5 of the Act, the alienee may remove standing crops and fixtures put by him in such land. He may sue his alienor for the return of the purchase money. He can also claim from the original grantee or his heirs to whom such land is restored, the value of the improvements made by him in that land. The right to get such return of the purchase money and the right to claim the value of such improvements, will mitigate to some extent the hardship caused to the alienee of a granted land when he is evicted therefrom under Section 5 of the Act."

This Court in Manchegowda & Ors. v. State of Karnataka & Ors., [1984] 3 SCC 301 while considering the vires of various provisions of the Act, including the rights of the transferee, payment of compensation, etc. held that such grants being crown grants the question of asserting of compensation and till then to continue the transferees in possession as not tenable. This Court held that when a transaction is against public policy as in case of transfer of land by grantees belonging to weaker sections to others, such a transfer is rendered void. On these findings the writ petition was dismissed.

THE ACT :

The Act was enacted with the object enshrined in the preamble of the Constitution including the directive principles of the State policy viz., for improving the social and economic conditions of persons belonging to weaker sections of the society and in particular those belonging to SC and ST categories. The State by reason of the provisions of the Act has been empowered to resume the land and restore the same to the grantees in the event it is found that any transfer thereof has taken place in violation of the terms of the grant. Such order of resumption is required to be passed with a view to avoid unnecessary delay or protracting the proceedings.

In Manchegowada (supra) it was held:

"Transferees of granted lands with full knowledge of the legal position that the transfers made in their favour in contravention of the terms of grant or any law, rule or regulation governing such grant are liable to be defeated in law, cannot and do not have in law or equity, a genuine or real grievance that their defeasible title in such granted lands so transferred is, in fact, being defeated and they are being dispossessed of such lands from which they were in law liable to be dispossessed by process of law."

 The Transfer of Property (Act No. 4 of 1882) was enacted for the purpose of amending the law relating to the transfer of property by act of parties.

Section 2(d) of the Act reads thus :

"2. Repeal of Acts - Saving of certain enactments, incidents, rights, liabilities, etc. - In the territories to which this Act extends for the time being the enactments specified in the Schedule hereto annexed shall be repealed to the extent therein mentioned. But nothing herein contained be deemed to affect -

xxx xxx xxx

(d) save as provided by section 57 and Chapter IV of this Act, any transfer by operation of law or by, or in execution of, a decree or order of a Court of competent jurisdiction; and nothing in the second Chapter of this Act shall be deemed to affect any rule of Muhammadan Law."

Section 51 of the said Act reads thus :

"51. Improvements made by bona fide holders under defective titles - When the transferee of immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell interest in the property to transferee at the then market value thereof, irrespective of the value of such improvement.

The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction.

When, under the circumstances, aforesaid, the transferee has planted or sown on the property crops which are growing when he evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them."

By reason of an order passed under Section 4 of the Act, the lands are directed to be restored in the event the illegalities specified therein are discovered. The consequences contained in Section 5 of the Act applies automatically in the event an order under Section 4 of the Act is passed. Section 4 of the Act contains a non obstante clause. The said provision would, thus, apply notwithstanding anything contained in any agreement or any other Act for the time being in force. The Act is a special Act whereas the Transfer of Property Act is a general Act and in that view of the matter also Section 51 of the Transfer of Property Act will have no application and the consequences contained in Section 5 would prevail.

The Court in Manchegowda (supra) while interpreting the scope of Sections 4 and 5 of the Act, held :

"With the enactment of the Act, the voidable right or title of the transferee in the granted lands becomes void and the transferee is left with no right or property in the granted lands. The lands which are sought to be recovered from the transferees of the granted lands are lands in which the transferees cease to have any interest or property. The effect of the provisions contained in Sections 4 and 5 of the Act is that the defeasible right or interest of the transferees in the granted lands is defeated and the voidable transaction is rendered void. We have earlier held that it is clearly open to the Legislature to declare void the transfers of granted lands in contravention of the condition of prohibition on transfer. As soon as such transfers are rendered void by virtue of the provisions of the Act, the transferee does not have any right in the granted lands so transferred, and possession is sought to be recovered of such lands in which the transferees have lost their right and interest...."

Yet recently in Amrendra Pratap Singh v. Tej Bahadur Prajapati & Ors., JT (2003) 9 SC 201 this Court following Manchegwda (supra) and a large number of other ceases, held :

"Tribal areas have their own problems. Tribals are historically weaker sections of the society. They need the protection of the laws as they are gullible and fall pray to the tactics of unscrupulous people, and are susceptible to exploitation on account of their innocence, poverty and backwardness extending over centuries. The Constitution of India and the laws made thereunder treat tribals and tribal areas separately wherever needed. The tribals need to be settled, need to be taken care of by the protective arm of the law, and be saved from falling pray to unscrupulous device so that they may prosper and by an evolutionary process join the mainstream of the society. The process would be slow, yet it has to be initiated and kept moving. The object sought to be achieved by the 1950 Act and the 1956 Regulations is to see that a member of an aboriginal tribe indefeatably continues to own the property which he acquires and every process known to law by which title in immovable property is extinguished in one person to vest in another person, should remain so confined in its operation in relation to tribals that the immovable property of one tribal may come to vest in another tribal but the title in immovable property vesting in any tribal must not come to vest in a non-tribal. This is to see and ensure that non-triabals do not succeed in making in-rods amongst the tribals by acquiring property and developing roots in the habitat of triabls."

This Court further observed that the expression 'transfer' should be given a broader meaning.

Section 51 of the Transfer of Property act applies to inter vivos transfers. It, as noticed hereinbefore, does not apply to a transfer made by operation of law. If a judicial order is passed restoring the land back to a member of Scheduled Tribes in terms of the purport and object of the statute, the provisions of the Transfer of Property Act cannot be applied in such a case. The matter is governed by a special stature. Unless there exists a provision therein, an order passed thereunder cannot be supplanted or supplemented with reference to another statute.

We are, therefore, of the opinion that Section 51 of the Transfer of Property Act, cannot be held to have any application in the instant case. There is no merit in this appeal, which is accordingly dismissed. No costs.

P.D. Gupta vs Ram Murti
Supreme Court of India - Bench: S.C. Agrawal, D.P. Wadhwa - Date of Judgment: 08/07/1997

Hon'ble Mr. Justice S.C. Agrawal Hon'ble Mr. Justice D.P. Wadhwa Yogesh K. Jain, Sr. Adv., Pravir K. Jian, M.A. Khan, B.K. Sharma, and Rajiv Dutta, Addvs. with him for the appellant In-person for the Respondent in No.1 The following Judgment of the court was delivered : D.P. WADHWA, J.

The appellant is an advocate practising    in Delhi. He ha filed this appeal under section 38 of the Advocates Act, 1961 (    in short the Act,) against order dated May 4, 1996 of the    Disciplinary Committee    of Bar    council of India holding him guilty of    misconduct and    suspending him    from practice for a period    of one Year. This order by the Bar council of India was passed as the Disciplinary committed of the    Bar council of Delhi    could not dispose of    the complaint received by it with in a period of one year    and proceedings had thus been transferred to the Bar council of India under section 36 B of the Act. Section 36 B enjoins upon the Disciplinary    committee of state Bar council to dispose of the complaint receive by it under section 35 of the Act expeditiously    and in    any case to conclude the proceedings within one case to conclude the proceedings within one year from    the date of the receipt of    the complaint or the date of initiation of the proceedings if at the instance of the state Bar Council. Under Section 35 of the Act    where on the    receipt of a complaint or otherwise the state bar    council has reason to believe that    any advocate on it s role has been guilty of professional or other misconduct, it shall refer the case for disposal to its Disciplinary Committee.

One Srikishan Dass died on January 5, 1980 leaving behind extensive properties, both movable and immovable. One Vidya wati claiming to be the sister and the only legal heir of Srikishan Dass filed a petition under Section 276 of the Indian Succession Act in the court of District Judge, Delhi for grant of probate/letters of administration to the estate of deceased Srikishan Dass. This she filed    in February, 1980.    It is not that    there was any will. The complainant Ram Murti (who is now respondent before us ) and tow other persons also laid claim to the properties of Srikishan Dass claiming themselves to be his heirs and propounding three different wills. They also filed separate proceeding under section 276 of the Indian succession Act before the District Judge, Delhi. Since there was disoute regarding inheritance to the    properties of srikishan Dass, Vidya Wati also filed a civil    suit in the Delhi High Court    for declaration and injunction against various defendants numbering    23, including the complainant Ram Murti    who is defendant No.

21. This suit was filed on February, 10 1982. Vidya wati had prayed for a decree of injunction against the defendants restraining them from trespassing into property bearing No. 4852 Harbans Singh street, 24 Daryaganj, New Delhi or from interfering with or disturbing peaceful possession    and enjoyment of immovable properties detailed in Schedule-A to the plaint. She also sought a declaration that she was the absolute owner    of the    properties mentioned therein in the schedule. It    is not    necessary for    us to    detail    the properties shown in    schedule-A except to    note two properties at 24 Daryaganj, New Delhi bearing No. 4852 and 4852-A. It is stated that this suit is still pending in the Delhi High court and all the proceedings under section 276 of    the Indian Succession Act filed by various persons relating to the estate    of Srikishan Dass have also    been transferred from the court of District Judge.    Delhi to the High court and are being tried alongwith the suit filed by Vidya wati also filed various other proceedings respecting the properties    left by deceased Srikishan Dass against occupants or otherwise. P.D. Gupta, advocate who is appellant before us had been her counsel throughout in all these proceedings. The complaint alleged against him is that though he knew that there was doubt cast on the right of Vidya Wati inheriting the properties of Srikishan Dass on account of pendency of various proceedings and further that the complainant    and others had alleged that she was in fact an imposter and her claim to be sister of Srikishan Dass was false    yet P.D. Gupta purchase ground floor    of property bearing No. 4858-A 24 Daryaganj from Vidya Wati by sale- deed dated December 30, 1982. The complainant also alleged that Vidya Wati had been describing herself either as the real sister, step sister or    even halfblood sister of Srikishan Dass which fact was well known to P.D. Gupta, her counsel.

It is not for us to go into the merits or demerits of the controversy raised by    the parties    in various proceedings pending in    the courts    and still awaiting adjudication, the grievance of the complainant is as to how an advocate could purchase property from his client which property is the subject matter of dispute between    the parties    in a court of law. During the course of hearing of this appealing    was also brought to our notice that second floor    of the property bearing No. 4858-A, 24 Daryaganj was purchased by Suresh Kumar Gupta son-in-low of the advocate P.D. Gupta Sola the property purchased by him in November, 1987 for a consideration of Rs. 3,40,000/- in December, 1982.    It is    pointed    out that the facts relating    to purchase of different portions of property No. 4858-A, 24 Daryagnaj and subsequent sale    by P.D.    Gupta in buying the property from Vidya Wati in the circumstances aforesaid who had been describing herself some time as half blood sister, real sister or even step-sister of Srikishan Dass.    The explanation given by P.D. Gupta is that though Vidya Wati was step-sister    of srikishan Dass but    the later always treated her like her real sister and that is how vidya Wati also at times described herself as real    sister.

There are    some more facts which    could also be noted. Vidya Wati herself has died and she is stated to be survived by ger only daughter maya Devi who is also now dead. before her death Vidya Wati allegedly    executed a will in favour of her grandson Anand Prakash bansal who is stated to be the son of    maya Devi bequeathing all her properties to    him. Vidya Wati died on October 26, 1991 and Maya Devi on April 13, 1992, It is stated that P.P. Bansal has been acting as General Attorney of vidya Wati and instructing P.D. Gupta.

In support    of his case P.D. Gupta filed affidavit of Anand Prakash Bansal wherein it is claimed that saledeeds executed by Vidya Wati in favour of P.D. Gupta and his son- in low    Suresh    Kumar Gupta were without any pressure from any one    and were by free will of vidya Wati. P.D. Gupta has claimed that complaint filed by Ram Murti is motivated and he    himself had no title to the properties of srikishan Dass being no    relation of his and the will propounded by him had    been found to be forged as opined by the CFSL\CBI laboratory. The    fact that the will propounded by the court. In the    affidavit filed    by P.D. Gupta    in answer to    the complaint of Ram Murti    he has stated that "Lala Srikishan Dass left behind his sister Smt. Vidya Wati who succeeded to the estate on death of Lala Srikishan Dass and took over the entire movable and    immovable estate. Thereafter    the complainant and    two other persons propounded    will of Lala Srikishan Dass". This statement of P.D. Gupta has been verified by him as true and correct to his knowledge. It does appear to us to be rather odd for a lawyer to verify such facts to    his knowledge.    It is claimed that when Srikishan Dass    died, subject immovable property was    plot bearing No.4858-A, 24 Daryaganj measuring 1500 sq. feet and the same was got mutated in the name    of Vidya Wati in the records of the Municipal corporation of Delhi and then she got plan sanctioned from the Municipal corporation    of Delhi for construction    of the house on this plot and which she did construct and got completion certificate on August 28, 1981. It is peculiar, rather astounding, how could Vidya Wati get the property of Srikishan Dass mutated in her name when    she is yet    to be    granted    letters of administration or declaration to her title.

We    examined the    two sale-deeds transferring    this property, one executed in favour of P.D. Gupta and other in favour    of his    son-in-law Suresh Kumar Gupta and we complainant and the concerned parties."

In the sale deed    which    is dated December 30,    1982 executed in favour of    P.D. Gupta recitals show that the agreement to sale was    entered into on September 3, 1980. The completion certificate of the building was obtained on August    28, 1981 Payment of    Rs. 1,50000/-    made before execution of the sale    deed on various dates from 3.8.80 to 20.11.1981 by means of    cheques except    one payment of Rs. 10.000/- made by cash on September 3, 1980. balance amount of consideration of Rs. 30,000/- was    paid at    the time of registration of    the sale deed there is no mention of any civil suit respecting    this property    pending in the High Court.    Rather it is stated that vendor had constructed various floors    and had    assured/represented to    the vendee that she had a good and marketable title to the property and the same was    free form all    sorts    of liens, charges, encumbrances or others    like burdens, and in case any defect in the    title of the vendor was later on proved, the vendor undertook to compensate the vendee for all losses, damages and claims, which might be caused to him in this regard. In the other sale deed dated December 2, 1982    executed in favour of son-in-law of P.D. Guta. Which was filed during course of hearing course of hearing of this appeal, it is mentioned that    after obtaining    completion certificate on August 28,1981    Vidya Wati let out the second floor of the property comprising five rooms, kitchen, two bathrooms on monthly rent of rupees    five hundred to Suraj    Bhan Gupta. Recitals to this deed    show that in order to retch better price Vidya wati agreed to sell the property being second floor    which according    to her was not giving    good return for consideration of Rs. 1,75,000/- to Suresh Kumar Gupta. Now this Suresh Kumar Gupta son-in-law of P.D. Gupta is no other person than the son of Suraj Bhan    Gupta,    the tenant. There is no mention of any agreement to sell in this sale-deed but what we find    is that first payment of Rs. 20,000/- towards consideration was made on November    5, 1981, second payment of Rs. 25,000/- on February 20, 1982 and third of Rs. 30,000/- on    April 26, 1982. Balance Payment has been made at the time of execution of the    sale deed on December 2, 1982.

Bar Council of India has taken note of the following facts:

1. P.D. Gupta    claims to know vidya wati since 1980 when Srikishan Dass was alive. He knew Vidya wati closely and yet contradictory stands were taken by Vidya wati when    she varyingly described herself as half-blood sister,    real sister or step-sister of Srikishan Dass. These contradictory stands in fact cast doubt ion    the very ekistence of Vidya wati herself.    This also created doubt about bona fides of P.D. Gupta who seemed to be a family lawyer of vidya wati.

2. P.D. Gupta    knew    that the property purchased by him from Vidya wati was subject    matter    of litigation    and title of vidya wati to that property was in doubt.

3. Hupe property situated in Daryaganj Ganj was purchased by P.D.    Gupta    for a mere sum of Rs. 1,80,000/- in 1982.

4. The agreement for sale of property was entered into as for back on September 3,1980 and P.D. Gupta had advancing money Vidya Wati from time to time which went to show    that as per version of P.D. Gupta knew Vidya Wati so closely how Vidya Wati could take    contradictory stands vis-a-vis    her relationship with Srikishan Dass.

Bar Council of India was thus of view that conduct of P.D.    Gupta in    circumstance s    was unbecoming of professional ethics and conduct.

Bar Council of India also    observed :

" It is acknowledged fact that a lawyer conducting    the case of his client has    commanding status and can expert influence of his client.

As a member of the Bar it is our common knowledge    that    lawyers have lawyers    have    started contracting with the clients and enter into baroains that in case of    success he will shore the result. Number of instanses of Motor Accident Claims. No doubt there is no bar for instances to purchase property    but on    account of    common prudence specially law knowing person will never prefer to purchase the property, the title of which is under doubt."

Finally it said:

"    But for the    purpose    of the present complaint, having regard to all the facts and circumstances of the case,    the committee is of the opinion that the    conduct    of the respondent is patently unbecoming of    a    lawyer    and    against professional ethics. Consequently, we    feel    that as an exemplary punishment, Shri P.D. Gupta should be    suspended form practice for a period of one year    so that other erring lawyers should learn a    lesson    and refrain themselves form indulging in such practice."

The question which rises for consideration is: In view of the aforementioned facts is    P.D. Gupta guilty of professional or other misconduct and if so is the punishment awarded to him disproportionate to    the professional or    other    misconduct of    which he has    been found guilty?

Mr. Y.K.    Jain, learned    counsel    appearing for    the appellant P.D.    Gupta    submitted that    if in a case like this it    held    that a lawyer    was guilty of professional misconduct particularly    on complaint filed by an interested person like Ram Murti    no lawyer would be able to conduct henceforth the    case of his client fearlessly. Mr. jain said that the aggrieved person. if any, in this case would have been either Vidya    Wati. Her daughter maya Devi or her grand-son Anand Prakash Bansal and neither of them    had complained. it was also submitted    that    though    the property was purchased by P.D. Gupta in late 1982    the complaint by Ram Murti    was filed only on December 16 ,1922 Mr. Jain explained that as to how Vidya Wati had    been varyingly described in various litigations was on account of instruction form her or her Attorney and it was no fault of P.D. Gupta on    that account. Then it was submitted that no specific charges had been framed in the    disciplinary proceedings which had caused prejudice to P.D. Gupta in the conduct of his defence. lastly, it    was contended    that P.D. Gupta was no longer concerned with the property as he had sold away the same.

There appears to be no substance    in the substance of mr. Jain. P.D. Gupta    was fully aware of the allegations he was to meet . It was not a    complicated charge. He has been sufficiently long in practice. The arguments that a charge had not been formulated appears to be more out of the discontentment of    P.D. Gupta in being unable to meet the allegation    . Now,    P.D. Gupta says that he has washed off his    hands of the property and thus    he is not guilty of any misconduct.    That    is not the issue. It is    his conduct in buying the    property, the    subject matter of litigation between the parties, from his client    on which he could exercise undue    influence especially when there was a doubt cast on his client's title to the property. Had P.D. Gupta sold the property back to Vidya Wati and got the sale deed in his    favour cancelled something could have been said in his favour. But that is not so. He sold the property to a third person, made property to a third person,    made profit and created more complications    in the    pending suit.    P.D. Gupta    purchased the properties which were subject matter of dispute for himself and also for his son-in-law at almost throw away prices and thus he himself became a party to the    litigation . conduct of P.D. Gupta cannot be said to be above board. It is not material that Vidya Wati or anyone claiming    through her has not complained against him. We are    concerned with    the professional conduct of    P.D. Gupta    as a lawyer conducting the case for his client. a lawyer owes duty to be fair not only to his client but to the court as well as to the opposite party in the conduct of the case. Administration of Justice is stream which has to be dept    pure    and clean. It    has to    be kept unpolluted. Administration    of Justice is not something which concerns the Bench only. It concerns    the Bar as well, Bar is the principal ground for recruiting Judges. No one should be able to raise a finger about the conduct of a lawyer. While conducting the    case he    functions as officer of the court. Here, P.D. Gupta in buying the property as in effect subverted the process of justice. His action has raised serious questions about his fairness in the conduct of the trial touching    his professional conduct of the trial touching his professional conduct as an advocate. By his action he has brought    the process of administration    of justice in disrepute.

Bar council of India and state Bar councils    are statutory bodies under    the Act. These bodies performs varying functions under the Act and the rules framed their under.    Bar council of India has    laid standards of professional conduct for the members. code of conduct in the circumstances can never be exhaustive. Bar council of India and state Bar councils are representative bodies of the Advocates    on their rolls and are charged    with responsibility    of maintaining    discipline amongst members and punish those who go astray from the path of rectitude set out    for them. In the present case the Bar council of India, through    its disciolinary committee, has considered all the    relevant circumstances and    has come to    the conclusion that P.D.    Gupta,    advocate is    guilty of misconduct and    we see    no reason to take a different view. We also    find    no ground to interfere    with the punishment awarded to P.D. Gupta in the circumstances of the case.

The charge    of professional or other misconduct by an advocate is a serious    matter    and has to be considered and disposed of by the Disciplinary committee of a state Bar council expeditiously and with    in period of one year. We are unable to comprehend as to why the    Disciplinary Committee of the Delhi Bar council could not dispose of the matter    within    the prescribed time frame and it was left the apex body to deal with it.

The appeal is dismissed. No order as to costs.

Shyam Narayan Chouksey V/S Union Of India
Writ Petition(S)(Civil) No(S). 855/2016 - Coram: Hon'ble Mr. Justice Dipak Misra,  Hon'ble Mr. Justice Amitava Roy - Date : 30/11/2016

UPON hearing the counsel the Court made the following
O R D E R
We have heard Mr. Abhinav Srivastav, learned counsel for the petitioner and Mr. Mukul Rohatgi, learned Attorney General for India along with Mr. A.K. Panda, learned senior counsel for the Union of India.

This Court on 28.10.2016 while entertaining the Writ Petition under Article 32 of the Constitution of India had noted the submissions advanced by the learned counsel for the petitioner, made reference to the enactment, namely, Prevention of Insults to National Honour Act, 1971. It had also taken note of the averments in the petition.

It has been averred in the petition that sometimes National Anthem is sung in various circumstances which are not permissible and can never be countenanced in law. The emphasis is on showing requisite and necessary respect when the National Anthem is sung or played. The assertion is that it is the duty of every person to show respect when the National Anthem is played or recited or sung.

Having heard the learned counsel for the parties and awaiting the reply from the Union of India, as an interim measure, it is directed that the following directions shall be scrupulously followed:- (a) There shall be no commercial exploitation to give financial advantage or any kind of benefit. To elaborate, the National Anthem should not be utilized by which the person involved with it either directly or indirectly shall have any commercial benefit or any other benefit.

(b) There shall not be dramatization of the National Anthem and it should not be included as a part of any variety show. It is because when the National Anthem is sung or played it is imperative on the part of every one present to show due respect and honour. To think of a dramatized exhibition of the National Anthem is absolutely inconceivable.

(c) National Anthem or a part of it shall not be printed on any object and also never be displayed in such a manner at such places which may be disgraceful to its status and tantamount to disrespect. It is because when the National Anthem is sung, the concept of protocol associated with it has its inherent roots in National identity, National integrity and Constitutional Patriotism.

(d) All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem. (e) Prior to the National Anthem is played or sung in the cinema hall on the screen, the entry and exit doors shall remain closed so that no one can create any kind of disturbance which will amount to disrespect to the National Anthem. After the National Anthem is played or sung, the doors can be opened.

(f) When the National Anthem shall be played in the Cinema Halls, it shall be with the National Flag on the screen.

(g) The abridge version of the National Anthem made by any one for whatever reason shall not be played or displayed.

We have so directed as Mr. Mukul Rohtagi, learned Attorney General for India submits with all humility at his command and recommend that National Anthem has to be respected. The directions are issued, for love and respect for the motherland is reflected when one shows respect to the National Anthem as well as to the National Flag. That apart, it would instill the feeling within one, a sense committed patriotism and nationalism.

In this regard, we may refer to clause (a) of Article 51(A), Fundamental Duties occurring in Part IVA of the Constitution. It reads as follows: “51A. Fundamental duties – It shall be the duty of every citizen of India – (a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem”.

From the aforesaid, it is clear as crystal that it is the sacred obligation of every citizen to abide by the ideals engrafted in the Constitution. And one such ideal is to show respect for the National Anthem and the National Flag. Be it stated, a time has come, the citizens of the country must realize that they live in a nation and are duty bound to show respect to National Anthem which is the symbol of the Constitutional Patriotism and inherent national quality. It does not allow any different notion or the perception of individual rights, that have individually thought of have no space. The idea is constitutionally impermissible.

Mr. Rohatgi has submitted that the Union of India shall circulate this order to the Chief Secretaries of all the States and Union Territories. That apart, Mr. Rohatgi submits that the order shall be shown in the electronic Media and published in the print media so that every one knows that such an order has been passed and follow the same in letter and spirit.

This order shall be given effect to within a period of 10 days.

Let the matter be listed on 14th February, 2017 for further hearing.

(Madhu Bala) (H.S. Parashar) Court Master Court Master

Smt. Sarla Mudgal, President v/s Union of India & Ors
Supreme Court of India - Equivalent citations: 1995 AIR 1531, 1995 SCC (3) 635 - Bench: KULDIP SINGH (J), SAHAI, R.M. (J) - DATE OF JUDGMENT: 10/05/1995

JUDGMENT:
THE 10TH DAY OF MAY, 1995 Present:

Hon'ble Mr. Justice Kuldip Singh Hon'ble Mr. Justice R.M. Sahai Mr. D.N. Diwedi, Additional Solicitor General, Mr. V.C. Mahajan, Mr. Shankar Ghosh, Mr. R.K. Garg, Sr. Advs., Ms. S. Janani, Mr. P. Parmeswaran, Mr. R.P. Srivastava, Ms. A. Subhashini, (Ms. Janki Ramachandran, Mr. K.J. John,) Advs. (N.P.), Mr. Shakeel Ahmed Syed, Advs. with them for the appearing parties.

J U D G M E N T S/O R D E R The following Judgments/Order of the Court were delivered: Smt. Sarla Mudgal, President, Kalyani and Ors.

Versus.

Union of India & Ors.

(W.P.(C) No.347/90, W.P. (C) No.509/92 and W.P. (C) No.424/92) J U D G M E N T Kuldip Singh, J.

"The State shall endeavour to secure for the citizens a uniform civil code through-out the territory of India" is an unequivocal mandate under Article 44 of the Constitution of India which seeks to introduce a uniform personal law - a decisive step towards national consolidation. Pandit Jawahar Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said "I do not think that at the present moment the time is ripe in India for me to try to push it through". It appears that even 41 years thereafter, the Rulers of the day are not    in a mood to    retrieve Article 44 from the    cold storage where it is lying since 1949. The Governments - which have come and gone - have so far failed to make any effort towards    "unified personal law for all Indians". The reasons are too obvious to be    stated. The utmost that has been done is to codify the Hindu law    in the    form of the Hindu Marriage    Act, 1955. The Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956 which have replaced the traditional Hindu law based on different schools of thought and scriptural    laws into one unified    code. When more than 80% of    the citizens have already been brought under    the codified personal law there is no justification whatsoever to keep    in abeyance, any more, the introduction of "uniform civil code" for all citizens in the territory of India.

The questions for our consideration are whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnise second marriage? Whether such a marriage without having the first marriage dissolved under law, would be a valid marriage    qua the first wife who continue to be Hindu? Whether the apostate husband would be quilty of the offence under Section 494 of the Indian Penal Code (IPC)?

These are    four petitions    under    Article    32 of    the Constitution of    India. There are two    petitioners in    Writ Petition 1079/89. Petitioner 1 is the President of "KALYANI"

- a registered society    - which is an organisation working for the    welfare of needy-families and women in distress. Petitioner 2, Meena Mathur was married to Jitender Mathur on February 27, 1978. Three children (two sons and a daughter) were born out of the wed-lock. In early 1988, the petitioner was shocked to learn that her husband had solemnised second marriage with one Sunita Narula @ Fathima. The marriage was solemnised after they converted themselves to Islam and adopted    Muslim    religion. According    to the    petitioner, conversion of her husband to Islam was only for the purpose of marrying Sunita and circumventing    the provisions of Section    494, IPC. Jitender Mathur asserts    that having embraced Islam,    he can    have four wives irrespective of the fact that his first wife continues to be Hindu.

Rather interestingly Sunita alias Fathima is    the petitioner in Writ Petition 347 of 1990. She contends that she along with Jitender Mathur who was earlier married to Meena Mathur embraced Islam and thereafter got married. A son was    born to her. She further states that after marrying her, Jitender Prasad, under the influence of her first Hindu-wife, gave an undertaking on April 28, 1988 that he had reverted back to Hinduism and had agreed to maintain his first wife and three children. Her grievance is that she continues to be Muslim, not being maintained by her husband and has no protection under either of the personal laws.

Geeta Rani, petitioner in Writ Petition 424 of 1992 was married    to Pradeep Kumar according    to Hindu rites on November 13, 1988. It    is alleged in the petition that her husband used to maltreat her and on one occasion gave her so much beating that her jaw bone was broken. In December 1991, the petitioner    learnt that Pradeep Kumar ran away with one Deepa and after conversion to Islam married    her. It is stated that the conversion to Islam was only for the purpose of facilitating the second marriage.

Sushmita Ghosh is    another unfortunate lady who is petitioner in Civil Writ Petition 509    of 1992. She    was married to G.C. Ghosh    according to Hindu rites on May 10, 1984. On April 20, 1992, the husband told her that he no longer wanted to live with her and as such she should agree to divorce by mutual consent. The petitioner was shocked and prayed that she was her legally wedded wife and wanted to live with him and as such the question of divorce did not arise. The husband finally told the petitioner that he had embraced Islam and would soon marry one Vinita Gupta. He had obtained a certificate dated June 17,    1992 from the Qazi indicating that he had embraced Islam. In the writ petition, the petitioner    has further prayed that her    husband be restrained from    entering into    second marriage    with Vinita Gupta.

Marriage is the    very foundation of the civilised society. The relation once formed, the law steps in and binds the parties to various obligations and    liabilities thereunder. Marriage is an institution in the maintenance of which the public at large is    deeply interested. It is the foundation of the family and in turn of the society without which no civilisation can exist.

Till the time we achieve the goal - uniform civil code for all    the citizens of India - there is an open inducement to a Hindu husband, who wants to enter into second marriage while the first marriage is subsisting, to become a Muslim. Since monogamy    is the    law for    Hindus and the Muslim    law permits as many as four wives in India, errand Hindu husband embraces Islam to circumvent the provisions of the Hindu law and to escape from penal consequences.

The doctrine of indissolubility of marriage, under the traditional Hindu law, did not recognise that conversion would have the    effect    of dissolving    a Hindu marriage. Conversion to another religion    by one    or both the Hindu spouses did not dissolve the marriage. It would be useful to have a    look at    some of the old cases on the subject. In Re Ram Kumari 1891 Calcutta 246 where a Hindu    wife became convert to the Muslim    faith and then married a Mohammedan, it was    held that her earlier marriage with a Hindu husband was not    dissolved by her conversion.    She was charged and convicted of bigamy under Section 494    of the    IPC. It was held that there was no authority under Hindu    law for the proposition that an apostate is absolved from all civil obligations and    that so far as the matrimonial bond    was concerned, such view was contrary to the spirit of the Hindu law. The Madras High Court followed Ram Kumari in Budansa vs. Fatima 1914 IC 697. In Gul Mohammed v. Emperor AIR 1947 Nagpur 121 a Hindu wife was fraudulently taken away by the accused a Mohammedan who married her according to Muslim law after converting her    to Islam. It    was held that    the conversion of the Hindu wife to Mohammedan faith did not ipso facto dissolve the marriage and    she could not during the life time of her former husband enter into a valid contract of marriage. Accordingly the accused was convicted for adultery under Section 497 of the IPC.

In Nandi @ Zainab    vs. The Crown (ILR 1920 Lahore 440, Nandi, the wife of the complainant, changed her religion and became a Mussalman and thereafter married a Mussalman named Rukan Din. She was charged with an offence under Section 494 of the    Indian Penal Code. It was held that the mere fact of her conversion    to Islam did not dissolve the marriage which could only be dissolved by a    decree of court. Emperor vs. Mt. Ruri AIR 1919 Lahore 389, was a case of Christian wife. The Christian wife renounced Christianity and embraced Islam and then married a Mohomedan. It was held that according to the Christian marriage law, which was the law applicable to the case, the first marriage was not dissolved and therefore the subsequent marriage was bigamous.

In India there has never been a matrimonial law of general application. Apart from statute law a marriage was governed by the personal law of the parties.    A marriage solemnised under a particular    statute and according to personal law could not    be dissolved according to another personal law, simply because one of the parties had changed his or her religion.

In Sayeda    Khatoon @ A.M. Obadiah vs. M. Obadiah 49 CWN 745, Lodge, J. speaking for the court held as under:

"The parties were originally Jews bound by    the Jewish personal    law... The Plaintiff has since been    converted to Islam and    may in some    respects be governed by the Mohammedan Law.. The Defendant    is not governed by    the Mahommedan Law.. If this were an Islamic country, where the Mahommedan Law was applied to all cases where one party was a Mahommedan, it might be that plaintiff would be entitled    to the declaration prayed for. But this is not a Mahommedan country; and the Mahommedan Law is not the Law    of the    Land..    Now all my opinion, is it the Law of India, that when any person is converted to    Islam the Mahommedan Law shall    be applicable to him in all his relationships?.. I can see no reason why    the Mahommedan Law should be preferred to the Jewish Law in a    matrimonial    dispute    between a Mahommdan and a Jew particularly    when the relationship,    viz.: marriage, was created under the    Jewish    Law..    As I stated in    a previous case there    is no matrimonial law of general application in India.    There is a Hindu Law for Hindus,    a Mahommedan    Law for Mahommedans, a    Christian Law    for Christians, and a Jewish    Law for Jews. There is    no general matrimonial law regarding mixed marriages other than the statute law, and there is no suggestion that the statute law is applicable in the present case.. It may be that a marriage solemnised according to Jewish rites may    be dissolved by the proper authority under Jewish Law when one of the parties renounces the Jewish Faith. It may be that a    marriage solemnised according    to Jesish rites may be dissolved by the proper authority under Jewish Law when    one of    the parties renounces the Jewish Faith. It may be that a marriage solemnised according to Mahommedan    Law may be dissolved according to the Mahommedan Law when one of    the parties    ceases to be a Mahommedan. But I can find no authority for the view that a marriage solemnized according to one personal    law can be dissolved according to another personal law simply because one    of the two parties has changed his or    her religion."
Sayeda Khatoon's case was followed with approval by Blagden, J. of the Bombay High Court in Robasa Khanum vs. Khodadad Bomanji Irani 1946 Bombay Law Reporter 864. In this case the parties were married according to Zoroastrian law. The wife became Muslim whereas the husband declined to do so. The wife claimed that her    marriage stood    dissolved because of her conversion    to Islam. The learned    Judge dismissed    the suit. It would be useful to quote the following observations from the judgment:

"We have,    therefore, this position - British India as a whole, is neither governed by Hindu, Mahommedan,    Sikh, Parsi, Christian,    Jewish or any    other law except a law imposed by    Great Britain under which Hindus, Mahomedans, Sikhs, Parsis, and all others,    enjoy equal rights and    the utmost possible freedom of religious    observance, consistent in every case with the rights of other people. I have to decide this case according to the law as it is, and there seems, in principle, no adequate ground for holding that in this    case Mahomedan law is applicable to a    non- Mahomedan.. Do then the authorities compel me to hold that one spouse can by changing his or her religious opinions (or purporting to do so) force his or her newly    acquired personal law    on a party to whom it    is entirely alien and who does not want    it? In    the name of justice, equity and good conscience, or, in    more    simple    language, of common sense, why    should this be possible? If there were    no authority on the point I (personally) should have thought that so monstrous an absurdity carried its own refutation with it, so extravagant are the results that follow from it. For it is not only the question of divorce that the plaintiff's contention affects. If it    is correct,    it follows that a Christian husband can embrace Islam and, the next moment, three additional wives, without even the consent of the original wife."
Against the judgment of Blagden, J. appeal was heard by a Division Bench    consisting of    Sir Leonard Stone, Chief Justice and Mr. Justice Chagla (as the learned Judge then was). Chagla, J. who spoke for the Bench posed the question that arose for determination    as under: "what are    the consequences of    the plaintiff's conversion to Islam?". The Bench upheld the judgment of Blagden, J. and dismissed the appeal. Chagla, J. Chagla, J. elaborating the legal position held as under:-

"We have here a Muslim wife according to whose personal law conversion to Islam, if the other spouse does not embrace the same religion, automatically dissolves the marriage. We    have a Zoroastrian husband according    to whose personal law such conversion does not bring about the same result. The Privy    Council in Waghela Rajsanji    v. Shekh Masludin expressed the opinion that if there was no rule of Indian law which could be applied to    a particular case, then it should be    decided by equity and    good conscience, and they interpreted equity and good conscience to mean the rules of English law if    found applicable to Indian society and circumstances. And the same view was    confirmed by    their Lordships    of the Privy    Council in Muhammad Raza v. Abbas Bandi Bibi. But there is no rule    of English law which can be made applicable to a suit for divorce by    a Muslim wife    against her Zoroastrian husband. The    English law only deals and    can only deal    with Christian marriages and with grounds for dissolving    a Christian marriage. Therefore we must decided    according to justice and right, or equity and    good conscience    independently of    any provisions of the English law. We must do    substantial justice    between    the parties and in doing so hope that we have vindicated    the principles of justice and right or equity and    good conscience... It is impossible to accept the contention of Mr. Peerbhoy    that justice and right requires that we should apply Muslim law in dealing this case. It is difficult to see why the conversion of one party to a marriage should necessarily    afford a ground for its dissolution. The bond    that keeps a man and woman happy in marriage is not exclusively the bond of religion. There are many    other    ties which make it possible for a husband and wife to live happily and contentedly    together. It would indeed be a startling proposition to lay down that    although two persons may want    to continue to live    in a married state and disagree as to the religion they should profess,    their marriage    must    be    automatically dissolved. Mr. Peerbhoy has urged that it is rarely possible for two persons of different    communities to be happily united in    wedlock. If conversion of one of the spouses leads to    unhappiness, then the    ground    for dissolution of marriage would not be the conversion but the resultant unhappiness. Under Muslim law, apostasy from Islam of either party to a marriage operates as a complete and immediate dissolution of the marriage. But s.4 of the Dissolution of Muslim Marriages Act (VIII of 1939) provides that the renulciation of    Islam    by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage. This is    a very    clear    and emphatic indication that the Indian legislature has departed from; the rigor of the ancient Muslim law and has taken the more modern view that there is nothing to    prevent a happy marriage notwithstanding the fact that the two parties to it    professed different religious.. We must also point out that the plaintiff and    the defendant    were married according    to the Zoroastrian rites. They entered into    a solemn pact that the marriage would be monogamous and could only be dissolved according to the tenets    of the Zoroastrian religion.
It would be patently contrary to justice and right    that one party to a solemn pact should be allowed to repudiate it by    a unilateral    act.    It would be tantamount to permitting    the wife to force a    divorce    upon    her husband although he may not want it and although the marriage vows which both of    them have taken would not permit it. We might also point out that the Shariat Act (Act XXVI of 1937) provides that the rule of decision in the various cases enumerated in    s.2 which includes    marriage and dissolution of marriage shall be the Muslim personal    law only where the parties are Muslims; it does not provide that the Muslim personal law shall apply when only    one of the parties    is a Muslim." (the single Judge judgment and the Division Bench judgment are reported in 1946 Bombay Law Reporter 864) In Andal Vaidyanathan vs. Abdul    Allam    Vaidya    1946 Madras, a Division Bench of the High Court dealing with a marriage under the Special Marriage Act 1872 held:

"The Special Marriage Act    clearly only contemplates monogamy and a person married under the Act cannot escape from its provisions by merely    changing his religion. Such a person commits bigamy if he marries again during the lifetime of his spouse, and it matters not what religion he professes at the time of the second marriage. Section 17 provides the only means    for the dissolution    of a marriage or a declaration of    its nullity.
Consequently,    where    two persons married under the Act    subsequently become converted to Islam, the marriage can only    be dissolved    under    the provisions of the Divorce    Act and the same would    apply even if only one of them becomes converted to Islam. Such a marriage is not    a marriage in the Mahomoden sense which can    be dissolved in a Mahomedan manner. It is a statutory marriage and can only be dissolved in accordance with the Statute: ('41) 28 A.I.R.1941 Cal. 582 and (1917) 1    K.B. 634, Rel.    on; ('35) 22 A.I.R. 1935 Bom. 8 and 18 Cal. 264, Disting."
It is, thus, obvious from the catena of case-low that a marriage celebrated under a particular personal law cannot be dissolved by the application of another personal law to which one of the spouses converts and the other refuses to do so.    Where a    marriage takes    place under Hindu Law the parties acquire    a status and certain rights by the marriage itself under the law governing the Hindu Marriage and if one of the    parties is allowed to    dissolve the    marriage by adopting and enforcing a new personal law, it would tantamount to destroying the existing rights    of the other spouse who continues to be Hindu. We, therefore, hold that under the Hindu Personal Law as it existed prior to    its codification in    1955, a Hindu marriage continued to subsist even after one of the spouses converted to Islam. There was no automatic dissolution of the marriage.

The position has not changed after coming into force of the Hindu Marriage Act, 1955 (the Act) rather it has become worse for the    apostate. The    Act applies to Hindus by religion in any of its forms    or developments. It    also applies to Buddhists, Jains and Sikhs. It has no application to Muslims, Christians and Parsees. Section 4 of the Act is as under:

"Overriding effect of Act. save as otherwise    expressly provided in    this Act,-
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to    have effect with respect to any matter for    which provision is made in this Act;
(b) any other law in force immediately before the commencement    of this Act shall cease to have effect in so far as it    is inconsistent with    any of the provisions contained in this Act."
A marriage    solemnised, whether before or after    the commencement of    the Act, can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act. One of the grounds under Section 13 (i) (ii) is that "the other party has ceased to be a Hindu by conversion to another religion". Sections    11 and    15 of the Act is as under:-

"Void marriages:- Any marriage solemnized    after    the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other    party, be so declared by a decree of nullity    if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5."

"Divorced persons when may marry again.- When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, of there is such    a right of appeal the time for appealing has expired without an appeal    having been presented or an appeal has    been presented    but has been dismissed, it shall be lawful for either party to the marriage to marry again."

It is obvious from the various provisions of the Act that the modern Hindu    Law strictly enforces monogamy. A marriage performed under the Act cannot be dissolved except on the    grounds available under section 13 of    the Act. In that situation    parties who have solemnised the marriage under the Act remain married even when the husband embraces Islam in pursuit of other wife. A second marriage by an apostate under    the shelter of conversion to    Islam would nevertheless be a marriage in violation of the provisions of the Act    by which he would be continuing to be governed so far as his first marriage under the Act is concerned despite his conversion    to Islam. The second marriage of an apostate would, therefore, be illegal marriage    qua his wife    who married him under the Act and continues to be Hindu. Between the apostate and his Hindu wife the second marriage is in violation of the provisions of the Act and as such would be nonest. Section 494 Indian Penal Code is as under:-

"Marrying    again    during    lifetime of husband or wife. Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of    its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
The necessary ingredients    of the Section are:    (1) having a husband or wife living; (2) marries in any case; (3) in    which such marriage is    void; (4) by reason of its taking place during the life of such husband or wife.

It is no doubt correct that the marriage solemnised by a Hindu    husband after embracing Islam may not be strictly a void marriage under the Act because he is no longer a Hindu, but the    fact remains that the    said marriage    would be in violation of the Act which strictly professes monogamy.

The expression "void" for    the purpose of the Act has been defined under Section 11 of the Act. It has a limited meaning    within    the scope of    the definition under    the Section. On the other    hand the same expression has a different purpose under Section 494, IPC and has to be given meaningful interpretation.

The expression "void" under section 494, IPC has been used in the wider sense. A marriage which is in violation of any provisions    of law    would    be void in terms of    the expression used under Section 494, IPC.

A Hindu marriage solemnised under the Act can only be dissolved on any of the grounds specified under the Act. Till the time a Hindu marriage is dissolved under the Act none of the spouses can contract second marriage. Conversion to Islam and marrying    again would not, by itself, dissolve the Hindu marriage under the Act. The second marriage by a convert would therefore be in violation of the Act and as such void in terms of Section 494, IPC. Any act which is in violation of mandatory provisions of law is per-se void.

The real reason for the voidness of the second marriage is the    subsisting of    the first marriage which is    not dissolved even by the conversion of the husband. It would be giving a go-bye to the substance of the matter and acting against the spirit of the Statute if the second marriage of the convert is held to be legal.

We also agree with the law laid down by Chagla, J. in Robasa Khanum vs. Khodabad Irani's case (supra) wherein the learned Judge has held    that the conduct of a spouse    who converts to Islam has to be judged on the basis of the rule of justice and right or equity and    good conscience. A matrimonial dispute between a    convert to Islam and his or her non-Muslim    spouse is obviously not a dispute "where the parties are Muslims" and, therefore, the rule of decision in such a    case was or is    not required    to be    the "Muslim Personal Law".    In such    cases the Court shall    act and the Judge shall decide according to justice, equity and    good conscience. The    second marriage of a Hindu husband after embracing Islam    being violative of justice, equity and good conscience would be void on that ground also and attract the provisions of Section 494, IPC.

Looked from another angle, the second marriage of an apostate-husband would    be in violation of the rules of natural justice. Assuming that    a Hindu husband has a right to embrace Islam as his religion, he has no right under the Act to    marry again without getting his marriage under the Act dissolved. The second marriage after conversion to Islam would, thus, be in violation of the rules of natural justice and as such would be void.

The interpretation    we have given to Section 494    IPC would advance the interest of justice. It is necessary that there should be harmony between the two systems of law just as there should be harmony between the two    communities. Result of the interpretation,    we have given to Section 494 IPC, would be that the Hindu    Law on    the one hand and the Muslim Law on the other hand would operate within their respective ambits without trespassing    on the personal laws of each other. Since it is not the object of Islam nor is the intention of the enlighten Muslim    community that    the Hindu husbands should be encouraged to become Muslims merely for the    purpose of evading their own personal laws by marrying again,    the courts can be persuaded    to adopt a construction of    the laws resulting in    denying the Hindu husband converted to Islam the right to marry again without having his existing marriage dissolved in accordance with law.

All the four ingredients of Section 494 IPC are satisfied in the case of a Hindu husband who marries for the second time after conversion to Islam. He has a wife living, he marries again. The said marriage is void by reason of its taking place during the life of the first wife.

We, therefore, hold that the second marriage of a Hindu husband after his conversion to Islam is a void marriage in terms of Section 494 IPC.

We may at this stage notice the Privy Council judgment in Attorney General Ceylon vs. Reid (1965 Al. E.R. 812). A Christian lady was married according to the Christian rites. Years later she embraced Islamic faith and got married by the Registrar of Muslim Marriages at    Colombo according to the statutory formalities prescribed for a Muslim marriage. The husband was charged and convicted by the Supreme Court, Ceylon of the offence of bigamy under the Ceylon Penal Code. In an appeal before the Privy    Council, the respondent was absolved from the offence of bigamy.    It was held by Privy Council as under :-

"In their    Lordship's view, in    such countries    there must be    an inherent right in the inhabitants domiciled there to change    their religion    and personal law and    so to contract a    valid polygamous marriage if recognised by the laws of the country notwithstanding an earlier marriage. It such inherent right is to be abrogated, it must be done by statute."
Despite there being an    inherent right to change religion the applicability of    Penal laws would depend upon the two    personal laws    governing the marriage. The decision of Privy Council was on the facts of the case, specially in the background of the two personal laws operating in Ceylon. Reid's case is, thus,    of no help to    us in the facts and legal background of the present cases.

Coming back to the question "uniform civil code" we may refer to the earlier judgments of this Court on the subject. A Constitution    Bench of this Court speaking through Chief Justice Y.V. Chandrachud in Mohd. Ahmed Khan vs. Shah Bano Begum AIR 1985 SC 945 held as under:

"It is also a matter of    regret    that Article 44 of our Constitution has remained a dead letter. It provides that "The State shall endeavour to secure for the citizens a    uniform civil    code throughout    the territory of India". There is no evidence of    any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms    of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to    bell    the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil    code for the citizens of the    country    and, unquestionably; it    has the legislative competence to do so. A counsel in the case whispered, somewhat audibly,    that legislative competence is one thing, the political courage to use that competence is    quite    another. We understand the difficulties involved    in bringing persons of different    faiths    and persuasions on a common platform. But, a beginning    has to be made is    the Constitution is to have    any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond    the endurance    of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge that gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing    justice than    justice    from case to case."
In Ms.    Jordan Diengdeh    vs. S.S. Chopra AIR 1985 SC 935 O. Chinnappa Reddy, J. speaking for the Court referred to the observations of    Chandrachud, CJ in Shah Bano Begum's case and observed as under:

"It was just the other    day that a Constitution Bench    of this Court had to emphasise the urgency of    infusing life into Art.    44 of the Constitution which provides that "The State shall endeavour to secure    for the    citizens a uniform civil code    throughout the territory of India." The present case is yet another which focuses .. on the immediate and compulsive    need for a uniform    civil code. The    totally unsatisfactory    state of affairs consequent on    the lack of a uniform civil code is exposed by the facts of    the present case. Before mentioning the facts of the case, we might as well refer to the observations of Chandrachud, CJ in the recent    case decided by the Constitution Bench (Mohd. Ahmed Khan vs. Shah Bano Begum)."
One wonders how long will it take for the Government of the day to    implement the mandate of the framers of    the Constitution under Article 44 of the Constitution of India. The traditional Hindu law - personal    law of    the Hindus - governing inheritance, succession and marriage was given go- bye as    back as    1955-56 by codifying the same. There is no justification whatsoever in delaying indefinitely    the introduction of a uniform personal law in the country.

Article 44    is based on the concept that    there is no necessary connection between religion and personal law in a civilised society. Article 25    guarantees religious freedom whereas Article    44 seeks to divest religion    from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27.    The personal law of the Hindus, such as relating to marriage, succession and    the like have all a sacramental origin, in the same manner as in the case of the Muslims or    the Christians. The    Hindus alongwith Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities    would    not, though the Constitution enjoins the    establishment of a "common civil Code" for the whole of India.

It has been judicially acclaimed in the United States of America that the practice of Polygamy is injurious to "public morals", even though some religion may make it obligatory or    desirable for    its followers.    It can be superseded by the State just    as it    can prohibit human sacrifice or the practice of "Suttee"    in the    interest of public order. Bigamous marriage has been made punishable amongst Christians by Act (XV of 1872), Parsis by Act (III of 1936) and Hindus, Buddhists, Sikhs and Jains by Act (XXV of 1955).

Political history of India shows that during the Muslim regime, justice    was administered by the Qazis who would obviously apply    the Muslim Scriptural law to Muslims, but there was no similar assurance so far litigations concerning Hindus was concerned. The system, more or less, continued during the time of the East India Company, until 1772 when Warren Hastings    made Regulations for the administration of civil    justice    for    the native population, without discrimination    between    Hindus    and Mahomedans. The    1772 Regulations followed by the Regulations of 1781 whereunder it was    prescribed that    either community was to be governed by its    "personal" law    in matters relating to inheritance, marriage, religious usage and    institutions. So far as the criminal justice was    concerned the British gradually superseded the    Muslim law in 1832 and criminal justice was governed by the English common law. Finally the Indian Penal Code was enacted in 1860. This broad policy continued throughout the    British regime    until independence and    the territory of India was    partitioned by    the British Rulers into two States on the basis of religion. Those    who preferred to remain in India after the partition, fully knew that the Indian leaders did not believe in two-nation or three-nation theory and that in the Indian Republic there was to be only one Nation - Indian nation - and no community could claim to remain    a separate entity on the basis of religion. It would be    necessary to    emphasise that    the respective personal laws were    permitted by the British to govern the matters relating to inheritance, marriages etc. only under the Regulations    of 1781 framed by Warren Hastings. The Legislation -    not religion - being    the authority under    which personal law was permitted to operate and is    continuing to operate, the same can    be superseded/supplemented by introducing a uniform civil code. In this    view of the matter no community can    oppose    the introduction of uniform civil    code for all the citizens in the territory of India.

The Successive Governments till-date have been wholly re-miss in their duty    of implementing    the constitutional mandate under Article 44 of the Constitution of India.

We, therefore, request the Government of India through the Prime Minister of    the country to have a fresh look at Article 44 of the Constitution of India and "endeavour to secure for the citizens a uniform civil code throught the territory of India".

We further    direct    the Government of India through Secretary, Ministry of Law and Justice to file an affidavit of a responsible officer in this Court in August,    1996 indicating therein the steps taken and efforts made, by the Government of India, towards securing a "uniform civil code" for the    citizens of India. Sahai, J. in his short and crisp supporting opinion has suggested some of the measures which can be undertaken by the Government in this respect.

Answering the questions posed by us in the beginning of the judgment, we hold    that the second marriage of a Hindu- husband after conversion to Islam, without having his first marriage dissolved under law,    would be invalid. The second marriage would be void in terms of the provisions of Section 494 IPC    and the apostate-husband would be guilty of    the offence under Section 494 IPC.

The question of law having been answered we dispose of the writ petitions. The petitioners may seek any relief by invoking any remedy which may be available to them as a result of this judgment or otherwise. No costs. Smt. Sarla Mudgal, President Kalyani & Ors. etc. etc. Vs.

Union of India & Ors.

J U D G M E N T R.M. SAHAI, J.

Considering senstivity of the issue and    magnitude of the problem, both on the desirability of a uniform or common civil code and its feasibility, it appears necessary to add a few words to    the social necessity projected in the order proposed by esteemed Brother Kuldip Singh, J. more to focus on the urgency of such a legislation and to emphasise that I entirely agree with the thought provoking reasons which have been brought forth by him in his order clearly and lucidly.

The pattern of debate, even today, is the same as was voiced forcefully by the members of the minority community in the    Constituent Assembly. If, `the non-implementation of the provisions contained in Article 44 amounts to grave failure of Indian democracy' represents one side of    the picture, then    the other side claims that, `Logical probability appears to be that the code    would cause dissatisfaction and disintegration than serve as a common umbrella to promote homogeneity and national solidarity'.

When Constitution    was framed with secularism as    its ideal and goal, the consensus and conviction to be    one, socially, found its    expression in    Article    44 of    the Constitution. But religious freedom, the basic foundation of secularism, was    guaranteed by    Articles 25 to    28 of    the Constitution. Article    25 is    very    widely    worded. It guarantees all    persons, not only freedom of conscience but the right to profess, practice and propagate religion. What is religion? Any faith    or belief. The Court    has expanded religious liberty in its various phases guaranteed by the Constitution and extended it to practices and even external overt acts of the individual. Religion is more than mere matter of faith. The Constitution by guaranteeing freedom of conscience ensured inner aspects of religious    belief. And external expression of it were protected by guaranteeing right to freely, practice and propagate religion. Reading and reciting holy scriptures, for instance,    Ramayana or Quran or Bible or Guru Granth    Sahib is as much a part of religion as offering food to deity by a Hindu or bathing the idol or    dressing him and going to a temple, mosque, church or gurudwara.

Marriage, inheritance, divorce, conversion are as much religious in nature and content as any other belief or faith. Going round the    fire seven rounds or giving consent before Qazi are as much matter of faith and conscience as the worship itself. When a Hindu becomes convert by reciting Kalma or a Mulsim becomes Hindu by reciting certain Mantras it is a matter    of belief and conscience. Some of these practices observed by members of one religion may appear to be excessive and even    violative of human rights to members of another. But these are matters of faith. Reason and logic have little role to play. The sentiments and emotions have to be cooled and tempered by sincere effort. But today there is no Raja Ram    Mohan Rai who single    handed brought about that atmoophere    which paved the way for Sati abolition. Nor is a statesman of the stature of Pt. Nehru who could pilot through, successfully,    the Hindu Succession Act and Hindu Marriage Act revolutionising the customary Hindu Law. The desirability of    uniform Code can hardly be doubted. But it can concretize only when social climate is properly built up by elite of the society, statesmen amongst    leaders    who instead of gaining personal mileage rise above and awaken the masses to accept the change.

The problem with which these appeals are concerned is that many Hindus have changed their religion and have become convert    to Islam only for    purposes of escaping    the consequences of bigamy. For instance, Jitendra Mathur was married to Meena Mathur. He and another Hindu girl embraced Islam. Obviously because Muslim Law permits more than one wife and to the extent of four. But    no religion permits deliberate distortions.    Much misapprehension prevails about bigamy in Islam. To check the misuse many Islamic countries have codified the personal Law, `Wherein the practice of polygamy has been either totally prohibited    or severely restricted. (Syria, Tunisia, Morocco,    Pakistan, Iran,    the Islamic Republics of the Soviet Union are some of the Muslim countries to be remembered in this context'. But ours is a Secular Democratic Republic. Freedom of religion is the core of our    culture. Even the slightest deviation    shakes    the social fibre. `But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms, are    not autonomy    but oppression'. Therefore,    a unified code is imperative both for protection    of the    oppressed and promotion of national unity and solidarity. But the    first    step should be to rationalise the    personal law of the minorities to develop religious and cultural amity.    The Government would be well advised to entrust the responsibility to the Law Commission which may in consultation with Minorities Commission examine the matter and bring about the comprehensive legislation in keeping with modern day concept of human rights for women.

The Government may also consider feasibility of appointing a Committee to enact Conversion of Religion Act, immediately, to    check the abuse of religion by any person. The law    may provide that every citizen who    changes    his religion cannot    marry another    wife unless he divorces his first wife. The provision should be made applicable to every person whether he is a Hindu or a Muslim or a Christian or a Sikh or    a Jain    or a    Budh. Provision may be made    for maintenance and succession etc. also    to avoid clash of interest after death.

This would    go a long way to solve the problem and pave the way for a unified civil code.

Smt. Sarla Mudgal, President Kalyani and Ors.

Vs.

Union of India & Ors.

(W.P. (C) No.347/90, W.P. (C) No.509/92 and W.P. (C) No.424/92).

O R D E R For the reasons and conclusions reached in separate but concurring judgments the Writ petitions are allowed in terms of the    answers to the questions posed in the opinion of Kuldip Singh, J.

Robasa Khanum vs Khodadad Bomanji Irani
Equivalent citations: (1946) 48 BOMLR 864 - Bench: L Stone, Kt., Chagla - Date of Judgment: 22 August, 1946

JUDGMENT Leonard Stone, Kt., C.J.

1. I have read the judgment which my learned brother is about to deliver and I am in entire agreement with it and have nothing to add.

Chagla, J.

2. This is an appeal from the judgment of Mr. Justice Blagden. The suit was filed by a Muslim woman against her Zoroastrian husband for dissolution of marriage. The parties were married in 1927 in Iran according to the Zoroastrian law. In the plaint as originally filed the only ground on which a decree for dissolution of marriage was sought was desertion of the plaintiff by the defendant. The plaint was subsequently amended and a further ground was alleged, namely, that the plaintiff had ceased to be a Zoroastrian and had become a Muslim and that the defendant had declined to become a Muslim and was still continuing to be a Zoroastrian. It was therefore submitted that the plaintiff's marriage with the defendant was dissolved and a declaration was sought to that effect. The suit proceeded ex parie before Mr. Justice Blagden, and the learned Judge dismissed the suit.

3. The plaintiff's allegation with regard to desertion may be briefly dealt with. The learned Judge who had the advantage of seeing the plaintiff in the witness-box has refused to believe her on this point and has come to the conclusion that the charge of desertion was not well-founded. We see no reason on this question of fact to take a different view from that taken by the learned Judge below.

4. The more difficult and the more interesting question that arises for determination is: what are the consequences of the plaintiff's conversion to Islam? Muslim law makes a distinction between conversion to Islam of one of the spouses talcing place in a country subject to the laws of Islam and in a country where the law of Islam is not the law of the land. fIn the first ease, when one of the parties embraces Islam, he or she must offer Islam to the other spouse; and if the latter refuses to adopt Islam, then the Judge should separate the couple. In the latter case, after the lapse of a period of three months after the adoption of Islam by one of the parties, the marriage is automatically dissolved. It is not possible to take the view that India is a country subject to the laws of Islam. It is true that the Courts in British India administer the Muslim law as altered and amended by statute law to Muslim parties. But the Courts of Jaw do so pursuant to the directions contained in the laws of India. Complete religious neutrality obtains in our country and our Courts administer laws irrespective of the creed of the parties who appear before them. The Courts do not administer the laws of any particular community, but they administer such laws as are valid in British India. Muslim law is administered only in those cases where it happens to be the law of British India in eases where the parties are Muslims.

5. Therefore this country not being an Islamic country, according to the Muslim law, three months after the conversion of the plaintiff, if the defendant did not embrace Islam the marriage would stand dissolved. In this case there is no dispute that the plaintiff was converted to Islam, that the requisite period had passed and that the defendant has not adopted the religion of Islam.

6. It is clear that on the plaintiff's conversion to ilslam her personal law by which she is governed became the Muslim law and therefore, as far as her own personal law is concerned, it is undoubtedly true that she is entitled to have a declaration that her marriage stands dissolved. If this were to be a case in which Muslim law was to be administered, then, the case would present no difficulty whatsoever. But the difficulty arises because the defendant is a Zoroastrian and his personal law happens to be different from that of the plaintiff. Therefore we have here a case where there is a conflict between the personal laws of the two parties to the suit. The question of the domicile of the parties which would have a decisive bearing upon the question if the case were to be tried in English Courts does not help us here. It has been established that both the parties are domiciled in British India, but in British India there is no such thing as the law of domicile or a territorial law. In matrimonial matters there is no one law which applies to persons domiciled in British India; they are governed by their personal laws which differ from community to community. When the Supreme Court was established, this difficulty was foreseen, and by Clause 24 of the Charter it was provided that in the eases of Mahomedans or Gentoos (Hindus), their inheritance and succession to lands, rents and goods, and all matters of contract and dealing between party and party, shall be determined, in the case of the Mahomedans, by the laws and usages of the Mahoraedans, and where the parties are Gentoos, by the laws and usages of the Qentoos, or by such laws and usages as the same would have been determined by if the suit had been brought and the action commenced in a native Court, and where one of the parties shall be a Mahomedan or Gentoo, by the laws and usages of the defendant. The same provision, with this difference that it; applied to all communities instead of being confined to Hindus and Muslims, found a place in the Government of India Act, 1915, Section 112; and in the Government of India Act of 1935, Section 223 provides that the law to be administered in the High Court shall be the same as was administered before the Act came into force. It has been urged by Mr. Forbes on behalf of the respondent that in this case we should apply the law of the defendant because the case falls within the classes of cases enumerated in Section 112 of the Government of India Act of 1915, It is contended that marriage is a contract, that parties entered into the contract of marriage, that one party is seeking to repudiate the contract and that as the two parties belong to different communities their rights should be administered according to the law of the defendant. We find it difficult to accept this contention. It is difficult to believe that Parliament wanted to include matrimonial matters in the compendious expression "matters of contract and dealing between party and party." If Parliament intended to invest the High Court with matrimonial jurisdiction, Parliament would have made use of a more appropriate expression. Therefore in our opinion it is not possible to obtain any guidance as to the law which we should administer from Section 112 of the Government of India Act of 1915. Mr. Justice Crump in Benjamin v. Benjamin (1925) 28 Bom. L.R. 328 also expressed a doubt whether the words used in Section 112 of the Government of India Act of 1915 cover a matrimonial suit.

7. Clause 28 of the Charter of the Supreme Court contains a general direction that the Courts should give judgment according to justice and right; and Clause 19 of the Letters Patent provides that the High Court, in the exercise of its ordinary original civil jurisdiction, should apply to each case such law or equity as would have applied by the High Court if the Letters Patent had not been passed, Therefore in cases which do not fall within the ambit of Section 112 of the Government of India Act of 1915, and where there is no other statutory provision, the Court can only decide the case according to justice and right.

8. If parties appearing before the Court were governed by the same personal law, it would be easy to say what justice and right was according to which the ease should be decided. Ordinarily it would be according to the personal law of the parties. But a serious difficulty arises when the plaintiff and the defendant have different personal laws and there is a conflict between those personal laws. "We have here a Muslim wife according to whose personal law conversion to Islam, if the other spouse does not embrace the same religion, automatically dissolves the marriage. We have a Zoroastrian husband according to whose personal law such conversion does not bring about the same result. The Privy Council in Waghela Rajsanji v. Shekh Masludin (1887) L.R. 14 I. A. 89, 98 expressed the opinion that if there was no rule of 'Indian law which could be applied to a particular case, then it should be decided by equity and good conscience, and they interpreted equity and good conscience to mean the rules of English law if found applicable to Indian society and circumstances. And the same view was confirmed by their Lordships of the Privy Council in Muhammad Baza v. Abbas Bandi Bibi (1932) L.R. 59 I. A. 286, 246 : s.c. 34 Bom. L.R. 1048. But there is no rule of English law which can be made applicable to a suit for divorce by a Muslim wife against her Zoroastrian husband. The English law only deals and can only deal with Christian marriages and with grounds for dissolving a Christian marriage. Therefore we must decide according to justice and right, or equity and good conscience independently of any provisions of the English law. We must do substantial justice between the parties and in doing so hope that we have vindicated the principles of justice and right or equity and good conscience.

9. It is impossible to accept the contention of Mr. Peerbhoy that justice and right requires that we should apply Muslim law in deciding this case. It is difficult to see why the conversion of one party to a marriage should necessarily afford a ground for its dissolution. The bond that keeps a man and woman happy in marriage is not exclusively the bond of religion. There are many other ties which make it possible for a husband and wife to live happily and contentedly together. It would indeed be a startling proposition to lay down that although two persons may want to continue to live in a married state and disagree as to the-religion they should profess, their marriage must be automatically dissolved. Mr. Peerbhoy has urged that it is rarely possible for two persons of different communities to be happily united in wedlock. If conversion of one of the spouses leads to unhappiness, then the ground for dissolution of marriage would not be the conversion but the resultant unhappiness. Under Muslim law, apostasy from Islam of either party to a marriage operates as a complete and immediate dissolution of the marriage. But Section 4 of the Dissolution of Muslim Marriages Act (VIII of 1939) provides that the renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage. This is a very clear and emphatic indication that the Indian legislature has departed from the rigour of the ancient Muslim law and has taken the more modern view that there is nothing to prevent a happy marriage notwithstanding the fact that the two parties to it professed different religions.

10. We might also point out that the plaintiff and the defendant were married according to the Zoroastrian rites. They entered into a solemn pact that the ^marriage would be monogamous and could only be dissolved according to the tenets of the Zoroastrian religion. It would be patently contrary to justice and right that one party to a solemn pact should be allowed to repudiate it by a unilateral act. It would be tantamount to permitting the wife to force a divorce upon her husband although he may not want it and although the marriage vows which both of them have taken would not permit it. We might also point out that the Shariat Act (Act XXVI of 1937) provides that the rule of decision in the various cases enumerated in Section 2 which includes marriage and dissolution of marriage shall be the Muslim personal law only where the parties are Muslims; it does not provide that the Muslim personal law shall apply when only one of the parties is a Muslim.

11. As far as we can see from the cases cited at the Bar, only two High Courts have had occasion to consider this question-the High Court of Calcutta and the High Court of Madras. There have been several conflicting decisions of the Calcutta High Court which we shall briefly review. Mr. Justice Panckridge in an ex parte case made a declaration that the marriage of a Hindu woman who had been converted to Islam stood dissolved. He followed an iinreported decision of Buckland J. to the same effect. (See Musst. Ayesha Bibi v. Bireshwar Ghosh Mazumdar (1929) 83 C. W. N. clxxix). But the judgment contains no reasons which led the learned Judge to come to that conclusion. In Haripada Boy v. Krishna Benode [1989] A. I. R. Cal. 480 the husband, a Hindu, filed a suit for the restitution of conjugal rights against his wife who had been converted to Islam. It seems that she had obtained an ex parte decree for dissolution of her marriage on the ground of her conversion. The husband's suit for the restitution of conjugal rights had been dismissed by the two lower Courts and the matter came in second appeal before the High Court. It was not necessary to decide whether conversion led to dissolution of marriage because the Court expressly decided the appeal on the ground that as the ex parte decree had not been challenged, a suit for the restitution of conjugal rights could not be maintained. In Noor Jehan v. Eugene Tiscenko the wife sued her husband who was a Russian subject for a declaration that her marriage stood dissolved on the ground of her conversion to Islam. Mr. Justice Edg'ley who tried the suit refused to apply the rule of Muslim law stating (p. 594) that it was not the law of India that a marriage which had been duly celebrated according to the lex loci contradus and contemplated a lifelong union, could be dissolved by having recourse to some provision of the personal religious law of one of the parties to the marriage in a case in which the parties belonged to different religious communities. He went to the length of saying that the rule of Mahomedan law, on which the plaintiff relied, must be regarded as obsolete and contrary to public policy. Mr. Justice Edgley dismissed the suit and there was an appeal from his decision. In Noor Jehan Begum v. Eugene Tiseenho [1942] 2 Cal. 165, a bench consisting of Derbyshire C.J. and Ameer Ali and Nasim Ali JJ. confirmed the decision of Mr. Justice Edgley on the ground that as the husband was domiciled in Russia and as the wife took the domicile of her husband, the Court had no jurisdiction to entertain a suit for dissolution of their marriage. It is not necessary for us to go. to the same length as Mr. Justice Edgley went and say that the particular rule of Muslim law on which the plaintiff is relying is obsolete and contrary to public policy, but it is sufficient for us to agree with Mr. Justice Edgley that that rule of Muslim law does not apply where only one of the parties to the suit is a Muslim. Them in Musstt. Ayesha Bihi v. Subodh Chakravarty (1945) 49 C. W. N. 439, Mr. Justice Ormorid had a similar case before him, We agree with Mr. Justice Ormond in his conclusion that the law to be administered in cases like the one before him and the one before us is to administer justice and right; but, with respect, we entirely disagree with him when he comes to the conclusion that justice and right demands that conversion from Hinduism to Islam should put an end to the marriage. In passing we may observe that the learned Judge has taken the same view of Section 112 of the Government of India Act of 1915 as we have done earlier in this judgment. In the same volume of the Calcutta Weekly Notes is also reported a decision of another single Judge of the same High Court, Mr. Justice Lodge, and that learned Judge has dissented from the view taken by Mr. Justice Ormond (Sayed Khaioon v. M, Obediah (1945) 49 C. W. N. 745). The learned Judge took the view that India was not a Mahomedan country and the Mahomedan law was not the law of the land. The learned Judge further observed that he could find no authority for the view that a marriage solemnized according to one persona law could be dissolved according to another personal law simply because one of the two parties had changed his or her religion. He held that it could not be just and right to grant a declaration of dissolution of marriage on the ground of conversion of one of the parties to the marriage to Islam. With respect, we entirely agree with the decision of that learned Judge.

12. The Madras High Court has held in Budansa Bowther v. Fattna Bi (1913) 26 M. L. J. 260 that when a Hindu married woman was converted to Islam and during the lifetime of her Hindu husband married a Mahomedan and had several children by the second marriage, the second marriage was illegal and the children who were born of this union were illegitimate. The Court held that where a conflict occurs between persons belonging to different religions, it must apply the rules of justice, equity and good conscience. The Court further held that in testing whether the first marriage of a Hindu woman with a Hindu husband was subsisting or not at the time of her second marriage with a Muslim after she became a convert to Islam, the principles of Hindu law should be applied; but in testing the validity of her second marriage, the principles of Mahomedan law should be applied.

13. We might also consider another point which was debated at the Bar but which does not present much difficulty. Has the High Court the jurisdiction to try matrimonial suits on the Original Side ? By Clause 42 of the Supreme Court Charter, 1823, the Supreme Court was constituted a Court of Ecclesiastical Jurisdiction; and by Clause 35 of the Letters Patent the High Court has been giver. Matrimonial Jurisdiction. But this jurisdiction is confined to cases where one of the parties professes the Christian religion and it is now regulated by the Indian Divorce Act and the Indian and Colonial Divorce Jurisdiction Act, 1926. A special Court is also set up for deciding matrimonial matters where parties are Parsis under the Parsi Marriage and Divorce Act. The Dissolution of Muslim Marriages Act (VIII of 1939) does not set up any special Court and presumably the cases coming under that Act would be tried on the Original Side. But apart from special legislation and special jurisdiction, the High Courts in India have never refused to give redress in suits concerning matrimonial matters. As far back as 1856, the Privy Council, while holding that a suit for the restitution of conjugal rights could not be maintained on the Ecclesiastical side of the Supreme Court where the parties were Parsis, expressed the opinion that they should much regret if there were no Court and no law whereby a remedy could be administered to the evils which must be incidental to married life. (Ardaseer Cursetjee v. Perozeboye (1850) 6 M. I. A. 348, 390). Clause 12 of the Letters Patent confers original jurisdiction upon the High ¦ Court to try suits of every description, and that expression is wide enough to include in it even matrimonial suits where parties cannot obtain relief by invoking the special Matrimonial Jurisdiction of the High Court. Mr. Justice Crump in Benjamin v. Benjamin (1925) 28 Bom. L.R. 828 entertained a suit for divorce between: Jews on the Original Side under Clause 12 of the Letters Patent, Mr. Justice Crump in that case lias reviewed the cases in which the High Court in its original civil jurisdiction has exercised jurisdiction in matrimonial disputes.

14. We, therefore, hold that the Court has jurisdiction to entertain the suit on the Original Side. We further hold that the law which must be applied is not the Muslim personal law, but we must decide the case according to justice and right. We further hold that it is not in accordance with justice and right that on the conversion of one of the parties to the marriage to Islam it should be held that the marriage stands dissolved.

15. The appeal, therefore, fails and must be dismissed with costs.

The presence of a large number of useless and    inefficient cattle in the midst of the good ones affect our agricultural economy    in two ways.    In the first place and this is    the crux of the matter-this surplus stock is pressing upon    the scanty    fodder and feed resources of the country and is an obstacle to making good the deficit,. As pointed out by the expert    Committee Report at p. 59 the greatest    handicap in improving our    cattle wealth is the lack of resources in feeding them. Any effort to improve cattle will fail unless they are properly fed.    The table set out on that very    page of that Report records a deficiency of 6,00,00,000 tons, i. e., 33% in straw or Kadbi 10,40,00,000 tons, i.e., 13% in green fodder and 2,65,20,000 tons, i. e., 70% in    concentrates (i. e., oil cakes, bran,    oil seeds, maize'    barley and gram, etc.). It is pointed out that    the figures    shown against green fodder are not the quantities which are presently available but!    which can be    made available if forest' resources are fully, tapped. According to this Report even if the forest resources are fully utilised there    will still be a deficiency of    13% in    the supply.    The actual availability of this item is limited by the fact that green fodder is, only available    during    the monsoon    months    and much of this is wasted by the lack of country-wide arrangements for its    conservation.    The estimated requirements and the present supply of food stuffs for animals is also    given in Table V at p.    23 of    the Memorandum on Human Nutrition vis-a-vis Animal Nutrition in India which tallies with and is more or less about the    same as those given in the Report of the Expert Committee above referred to. Table V also shows a deficiency of 6,00,00,000 tons of straw or Kadbi 1,78,00,000 tons of green fodder. The shortage of concentrates, i. e.,    oil cakes, maize, barley, gram, cotton seed and bran vary between 8,50,000 to 71,17,000 tons. According to the estimate given in    the First Five Year Plan at p. 273 the    quantity of fodder available is about 75% of requirements while available concentrates of feeds would suffice only for about 28 % of 1 the cattle. The, figures given at p. 24 of the report of the Gosamvardhan Enquiry Committee set up by, the Uttar Pradesh    Government are interesting. The total cattle:    and buffalo    population in, Uttar    Pradesh is estimated    at 3,27,63,327. The scientific food requirements of this total population, according to, the Western standard, are: first set out. Then begins a: process of scaling down, for    the above-    scale is, considered to be somewhat lavish for    our low sized village cattle. The Indian standard, according to this report, will, require much less and the figures, according to Indian standards, are next set out. Evidently these,    figures also,    show a, very    big gap between, requirements and the available, quantities. So the report says that event, this may,    be reduced and -what    is significantly described as the " critical limit " is then set out. It is not quite intelligible why an Indian cow should not require even an Indian standard of ration. Be that as it may,    even for the " critical limit " the quantity available is far too short.    The gap between the critical limit and what is available is respectively 1,80,00,000 tons of    dry matter, 15,00,000 tons of protein and 28,61,70,00,000 therms. It is conceded that    the requirements of mixed population of 3,27,63,327 heads of animals may be taken as    representing 2,71,30,000 adult units and with the present available supply    of straw, green feed and concentrates    these adult units cannot be fully fed even on    the critical limit standard. The available supply can support only 1,59,20,000 adult units leaving 1, 1 2, 1 0,000 units unfed. It is recognised by this Report that with an increase in cattle population and better prophylactic    treatment against contagious diseases, the trend of population will be towards an increase and the deficiency in nutrition    will become still more pronounced. The    remedy    suggested is    that attention be paid urgently towards the production of more fodder from cultivated land and utilisation of all marginal and sub-marginal land    for augmenting food    and fodder sources.

With a large population of animals in which the majority is not yielding adequate and prompt returns to the owners,    the animals are naturally allowed to fenad for themselves and to subsist    on whatever the agriculturist is able    to provide from his scanty sources for the maintenance of    his stock. Naturally, therefore, the problem of substantial precentage of uneconomical cattle has cropped up along with that of stray, wild, old, diseased and uneconomical animals. These old and useless animals roaming about at pleasure in search of food are a nuisance and a source    of danger in    the countryside. They grow wild and become a menace to the crop production. As pointed out by the Report of    the Expert Committee, the danger was actually seen by the    members of that Committee in Pepsu where, it is significant to note, the slaughter is banned completely.

The presence of a large number of old and useless animals also has a bad effect on the quality of the breed. There is a tendency for this population to multiply and    bring    into being progeny    of a very inferior kind which is bound to adversely affect the production of milk or bullock power. It is absolutely necessary that this surplus cattle should be separated from the good and robust animals and a total ban on    slaughter of cattle and buffaloes will contribute towards worsening the present condition. The Cattle Preservation and Development Committee set up by the Government    of India in 1948 at p. 47 of    its Report recommended, as a panacea for the evil menace    of useless cattle,    a scheme for the    establishment    of cattle concentration camp for the old and useless cattle. It is this scheme which subsequently came to be known by the    name of Gosadans. At pp. 48 and 49 are set out the estimates of cost of establishing    and running a camp to    house 2,000 cattle.    The non-recurring cost on land, cattle sheds, staff and servants'    quarters is shown at Rs. 32,000 and    the recurring cost, namely, salary of manager,    stock-man, chaukidars. and others on the establishment together    with allowances is shown at Rs. 13,000 per year and it is hoped that a    sum of Rs. 5,000 will be derived from the sale of hides,    manure, etc. According to the Report of the Expert Committee each Gosadhan housing 2,000 heads of cattle would have to have 4,000 acres of land which would permit of a rotational and controlled grazing practice and provision has to be made for the surplus grass during the rainy season to be preserved for the scarcity months. There should be thatched sheds for protection of the cattle against weather and wild animals and fodder is to be cultivated on a small part of the 4,000 acres. By the end of 1954, when    the Report of the Expert Committee came to be made, the cost had gone up from    what they were    in 1948 when    the Cattle Preservation and Development Committee Report had been made. The estimated cost, according to the Report of    the Expert Committee, of    establishing and running of a    Gosadan    for 2,000 heads of cattle is shown as: nonrecurring Rs. 50,000, and recurring Rs. 25,000 per year. On    this basis the recurring cost alone will work out at Rs. 12.50 per head of cattle per annum for preserving useless cattle. The figures given in the Gosamvardhan Enquiry    Committee's Report are interesting.    Taking the total number of cattle,% in Uttar Pradesh not used for breeding or work at 1,83,276 in 1951, the State will require 91 Gosadans each with a housing capacity for 2,000 heads of cattle. Even taking one acre per animal instead of    two acres per    animal    as recommended by    the Expert Committee Report, 91 Gosadan,s will require nearly 2,00,000 acres of land. The cost of 91 Gosadans will be non-recurring Rs. 45,50,000 and recurring Rs. 22,75,000 per annum. It appears from the revised model for Gosadans for 500: heads of cattle to be run by the State Governments set out in Appendix II to the Proceedings of the Fifth Annual General    Meeting of the    Central    Council of Gosamvardhan held at Now Delhi on February 21,    1957,    that the non-recurring cost will be Rs. 39,000 and the recurring running cost will be Rs. 12,000. It is estimated that there will be an income of Rs. 2,500 from the sale of hides,    etc. Allowing this,    the net annual recurring cost will be    Rs. 9,500 for 500 heads of cattle which works out at Rs. 19    per head of cattle per annum. As regards Gosadans to be run by private institutions it is said in the same Appendix II that those institutions will be given a subsidy of Rs. 18    per head per annum out of which 75% would %,be contributed by the Centre and the remaining 25% by the State.    Thus for the preservation of the useless cattle the country will pay Rs. 19 or    Rs. 18 per head of such useless    cattle    per annum, whereas our total national expenditure on education (Central and States including local bodies) in 1955-1956 was only Rs. 4-9 per capita as against Rs. 104.6 per capita in the United Kingdom    and Rs. 223.7 per capita in the United States of America and our target for 1957-1958 works out at Rs. 5    per capita    per annum. It will be noticed that in none of    the schemes    is even a pice provided for    fodder. The    idea evidently is that the cattle will be left there to fend    for themselves on whatever grass or other green feed they can get by grazing. If one remembers that though green fodder may be available in    the monsoon months,    there will be a dearth, of them in the dry months, one will at once see that the segregating of the cattle in the concentration camp will only be to leave them to a    fate of slow death.    The very idea that these animals should    eke out their livelihood by grazing and that Gosadans should be located in out of the way places, appeared to the authors of the Memorandum on Human Nutrition vis-a-vis Animal Nutrition at p. 47, to belie the humanitarian considerations on    the basis of which the scheme was conceived.

Theory    apart,    the Gosadan scheme has 'been tried and    the result is not at all encouraging. The First Five Year Plan, obviously as an experimental measure, provided for    the establishment of 160 Gosadans each housing 2,000 heads of cattle,    at a cost of about Rs. 97,00,000. The Planning Commission recognised that these measures would touch    only the fringe of the problem and the success of the movement would depend on the amount of public    support, especially from charitable institutions that it received.    The sheer weight of the figures of expenses compelled the Gosamvardhan Enquiry    Committee to recognise that if the unwanted    and uneconomic cows and their progeny have to be    effectively saved from slaughter, the responsibility had to be shared by the individual, the community and so on, for it would be utterly    impracticable    to expect that the burden    of collection of such animals from villages and    transporting them to the Gosadans would be within the exclusive means and competence of the State. That Committee certainly expected the State to share a particular portion of the    expenditure which legitimately fell in its sphere of responsibility, but the Committee felt, and said so in so many words, that by far the most substantial portion of    the responsibility should    rest on the owners and the community itself for it was but equitable to expect that if the cow had to be really saved from slaughter the cost on this account should be equitably borne by the people and the State. This part of the Report of the Gosamvardhan Enquiry Committee reads like wishful thinking and amounts to only hoping    for the best. When the conscience of the    individual or    the community did not prevent the Hindu owner from selling    his dry cow to the butcher for a paltry sum of Rs. 30 to Rs. 40 per head, when the Hindu sentiment for the divinity    and sanctity attributed to the cow has to be propped up by legislative compulsion, when according to its own Report at p. 41    the Dharmada and Brit collected by the    Hindu busi- nessmen    on each commercial transaction ostensibly for    the benefit of the cow is not made available in full and finally when Goshalas have had to be closed down for want of funds and public support, when the country cannot spend more    than Rs. 5 per capita per annum on the education of the people, it seems to be somewhat illogical and extravagant, bordering on incongruity, to frame a scheme for establishment of Gosadans for preserving useless cattle at a cost of Rs. 19 or Rs.    18 per head per annum and which will, for    its success, admittedly have to depend on the same elusive    and illusory public support or 75% subsidy from the Central Government.

What has been the result of the experiment? According to the Report of the Expert Committee since the First Five Year Plan only 17    Gosadans had been started in Bihar, Uttar Pradesh, Pepsu, Coorg, Bhopal, Kutch, Vindhya Pradesh, Tripura and Saurashtra put together. Not even one of these 17 establishments is fully stocked. There are    only about 5,293 animals    in these 17 Gosadans instead    of 34,000. According to the Gosamvardhan Enquiry    Committee's Report, only two Gosadans had been established up to the date of that Report in Uttar Pradesh. The Second Five Year Plan (p.

283) shows that out of the 160 Gosadans for which provision had been made in the First Five Year Plan, only 22 Gosadans had been established.    According to the Facts    and Figures about Bihar,    1955, p. 88,    three Gosadans    had    been established at    Berwadih, Nirmali and Monghyr where there were about 700 uneconomic animals at that time    instead of 6,000 which should have been there as    per the estimated capacity for each Gosadan.

What, in the    view of the several    committees, is    the conclusion ? According to the Memorandum on Human Nutrition Vis-a-vis Animal Nutrition in India, p. 4,    the present scheme    of establishing Gosadans for segregating old    and useless    animals can serve only a limited, purpose and if extended countrywide,    it is likely to hinder    rather    than help the problem of disposing of, the surplus animals.    At p. 47    the authors of this Memorandum appear to have    felt that in advocating, the adoption of Gosadan Scheme on a countrywide, basis, sufficient consideration had not    been given to its practical aspects. It is pointed out    that according to the present estimate the total number of useless    animals is four times the number the    Second    Five

-Year Plan had estimated and    that consequently, having regard    to the    huge size of    our cattle population    the existing number of the useless section would remain unchanged for    many years to come and that a    sum of    Rs. 3,04,00,000 will be required only for pounding such animals. The Expert Committee's Report is quite definite    and emphatic. Paragraph 133 of that Report at P.    62 clearly expresses the opinion that Gosadans do not offer a solution to the problem. To house and maintain all these animals, thousands of Gosadans on lakhs of acres of land would be needed.    In addition to the huge nonrecurring    expenses, a very high recurring annual expenditure would    have to be incurred., In view of this and in view of the    indifferent response from the States in setting up Gosadans, the Expert Committee came to the conclusion that the Gosadan scheme was not likely to offer any solution for the problem of useless cattle    and that it would be far more desirable    to utilise the limited resources    of the country to increase    the efficiency of the useful cattle.

The Report of    the Cattle Preservation and    Development Committee did not recommend the immediate total ban on    the slaughter of all cattle. They recommended the establishment of concentration camps, later    on euphemistically called Gosadans, and though total ban was the ultimate objective, it did    not, for the moment,    prohibit the slaughter of animals over the age of 14 years and of animals of any age permanently unfit for work or breeding owing, to age    or, deformity. In para. 134 of the Expert    Committee's Report at, p. 63 it, is stated clearly that the total ban on    the slaughter of all cattle would not be in the best interests of the country as it is merely a negative and not a positive approach to the problem. They consider that a    constructive approach to the problem will be, to see that no useful animal is slaughtered and that the country's. resources    are fully harnessed to produce better and more efficient cattle. Neither    the First Five Year Plan nor -the Second Five    Year Plan accepted the idea of a total ban on the slaughter of cattle.    Indeed, according to the Second Five Year Plan, a total ban will help the tendency for the number of surplus cattle    to increase and, in their view, a total ban on    the slaughter of all cows, calves and other milch    and draught cattle    will defeat the very    object    of the directive principles embodied in Art. 48 of the Constitution. We find from para. 6 on p. 283 of the Second Five Year Plan that the Gosadan    scheme    did not make    any, real or    satisfactory progress and that altogether 22 Gosadans housing only 8,000 cattle had been established by the States up to the date of that document    and even then    many of the    States    had encountered difficulty in, securing the areas of land needed for their; operations.    The Planning Commission considered that it would be impossible to establish enough of these Gosadans and they reached the conclusion that    in defining the scope. of the ban on the slaughter of cattle the States should take a, realistic view of the fodder resources available in the country. and the extent to which they    can get the. co-operation of voluntary organisations to bear the main responsibility for, maintaining    unserviceable,    and unproductive cattle with a measure of assistance from    the Goverment land general support from; the people., As already stated,' the,    Memorandum on Human Nutrition vis-a-vis, Animal.    Nutrition at    p. 4 expressed the view that    the Gosadan    scheme can, serve only a limited purpose and, if extended countrywide was likely, to hinder, rather than help the problem of disposing of the, surplus animals, appart From the huge initial cost. A, large, concentration of useless    animals within a restricted area, the    authors of that Memorandum feared, might lead to considerable    soil erosion    due to overgrazing and there might be every possibility of contagious and parasitic diseases spreading from these animals to the surrounding area. It is only    the Gosamvardan Enquiry Committee    which    had recommended an immediate total ban on the    slaughter of all cattle, irrespective of age or sex. It should, however, be noted that even that Committee did not recommend such a total    ban as a measure independent of all other considerations.    Its recommendation    in this behalf was linked up with and was a part of a scheme which depended, for its success, on a variety of imponderable matters, like public enthusiasm    and support for the establishment and maintenance of Gosadans in a high    state of working, efficiency, the capacity of    the State to bring more lands under cultivation, reclamation of the jungle lands and the like.    It may be noted also    that although in some of the States total ban has been imposed on the slaughter of cattle, many of the States have not    con- sidered it necessary to impose such a blanket ban. Thus the Assam Cattle Protection Act,    1950,    the Bombay Animal Preservation Act, 1948, the West Bengal Animal Slaughter Control    Act, 1950, the Hyderabad Slaughter of    Animal    Act, 1950, the Travancore-Cochin Notification permit slaughter of cattle and buffaloes over specified years of age. Even    the Madhya    Pradesh Act, as criminally enacted, did not place a total ban on the slaughter of all cattle.

In earlier times there being enough of pastures and smaller human and cattle population and restricted needs, it    was possible to rear large and valuable herds and    organise a system    of balanced    economy    as far as    agricultural development was concerned. Thus, while the    country    was producing enough grain for the requirement of the human population there was    an adequate area available    for plentiful grazing of animals, which, supplemented by fodder available from agricultural    production, assisted    in developing the    types of quality animals required for    the needs of the times and the area in question (Report of the    Gosamvardhan Enquiry    Committee). The position has considerably changed since then. There has been a large    increase in human population and    famines and epidemics having been largely brought    under    control, there has been an increase in    the animal    population also. Already there is a    competition between    man and the animal for the available    land.    The growing human population needs more food for which more land is required. The refugee problem has yet to be solved    and sufficient land has to be found for settling the refugees therein. With organised facilities for    artificial fertilisers and the introduction of scientific    methods of cultivation agricultural production is expected to increase and the problem of food for human consumption may be capable of a satisfactory solution. But as regards the cattle    feed the gap between the requirement and the available quantities is so wide that there is little possibility, in any foresee- able future, of the country producing enough to feed    them adequately.

To summarise:    The country is in short supply of milch cattle, breeding bulls and working bullocks. If the nation is to    maintain itself in health and nourishment and    get adequate food,    our cattle must be improved. In order to achieve    this objective our cattle population fit    for breeding and work must be properly fed and whatever cattle food is now at our disposal and whatever more we can produce must be made available to the useful cattle which are in presenti or will in futuro be capable of yielding milk or doing work. The maintenance of useless cattle    involves a wasteful drain    on the nation's cattle feed.    To maintain them is to deprive the useful cattle of the much needed nourishment. The presence of so many useless animals tends to deteriorate    the breed. Total ban on the slaughter of cattle, useful or otherwise, is calculated to bring about a serious dislocation, though not a complete stoppage, of    the business of a considerable section of the people who are by occupation butchers (Kasais), hide merchants    and so    on. Such a ban will also deprive a large section of the people of what may be their staple food. At any rate, they will have to forego the little protein food which may be within their means to take once or twice in the week. Preservation    of useless cattle    by establishment of Gosadans is not,    for reasons already indicated, a practical proposition. Preservation of these useless animals by sending them to concentration camps to fend for themselves is to leave them to a process of slow death and does no good to them. On the contrary, it hurts the best interests of the nation in that the useless cattle deprive    the useful ones of a good part of the cattle food, deteriorate the breed and eventually affect the production of milk and breeding bulls and working bullocks, besides involving an enormous expense which could be better utilised for more urgent national needs.

We are not unmindful of the fact that beef and buffalo flesh from calves under one year of age. heifers and young castrated stock yielding meat of a superior quality fetch comparatively higher prices in the market and, therefore, the tendency of the butchers naturally is to slaughter young calves.    This    circumstance clearly warns us that calves, heifers and young castrated stock (cattle and buffalo) which will in future supply us milk and power for    purposes of agriculture require protection.    We also do not fail to bear in mind that for very good and cogent    reasons cows    also require    protection. Cows give us milk and her progeny    for future    service. Unfortunately, however, the average    milk yield of a cow, as already stated, is very much less    than that of a she-buffalo. As the Gosamvardhan Enquiry Committee's Report points out, despite all the veneration professed for    the cow, when it comes to the    question of feeding, the she-buffalo always receives favoured treatment and the cow has to be satisfied with whatever remains after feeding the she-buffaloes, bullocks, and calves in order of priority. The growth of cities and heavy demand for milk in the urban areas have contributed to the slaughter of    good stock.    For want of space no freshly calved animal can be brought    in without getting rid of one that had gone    dry. Salvage facilities not being available or, if available, being uneconomical, the professional    gowalas, who    are mostly,    if not wholly, Hindus, find    it uneconomical to maintain the cow after she goes dry and consequently sell her to    the butcher for slaughter at Rs. 30 to Rs. 50    per head, irrespective of her age and potential productivity, and import a fresh cow. The veneration professed for    the sanctity attached to the cow does not    prevent them    from doing so. In    big towns the    municipal regulations    are stringent and slaughter is permitted only of unserviceable and unproductive animals. Instances are not uncommon, however, that    to get an animal passed for slaughter,    the teeth or the    rings round the horns    of the    animal    are tampered with and sometimes a cow is even maimed in order that she may be passed by the veterinary inspector as    fit for slaughter.    Cows, which are rejected by the inspector, are taken out of the limits of the cities and slaughtered in the rural areas. As slaughter is not confined to registered slaughter houses, the number of useful animals which    are slaughtered cannot be given accurately.    It is estimated in the Report of the Expert Committee at p. 2 that at least 50,000    high yielding cows and she-buffaloes from cities of Bombay,    Calcutta and Madras alone are    sent annually    for permature slaughter and are lost to the country. The causes of slaughter of useful cattle are enumerated at pp. 2, 3, and 9 of that Report, namely, lack of space in    the cities and suburban areas, long dry period, want of arrangement for breeding bulls    at the proper time, the anxiety to get as much milk out of the cow as possible, -the high cost of maintenance of cows in the cities and the difficulties in the matter of obtaining adequate fodder. For these reasons many animals are sent to the slaughter houses through sheer economic pressure and are replaced by fresh animals imported from breeding areas. The danger of such premature slaughter is greater for the cow, for being an animal with a scanty yield of milk it does not pay the owner to maintain    her through the long dry period and hence there is an inducement for adopting even cruel practices to get her passed by    the inspectors. But a dry she-buffalo is well worth preserving and maintaining in expectation    of rich return at the next lactation. Besides, buffaloes for slaughter will not fetch as good a price as cows would do. Likewise there will not be much inducement to the agriculturist or other owner to part    with the breeding bulls or working bullocks (cattle and. buffalo) as long as they are serviceable. For their sheer usefulness and their high market value as breeding or working animals the breeding bulls and working bullocks, as long as they are fit, are, to the agriculturists, worth more than the price of their flesh in gold. There can hardly be any inducement for maiming valuable animals which, as breeding bulls or working    animals, can at any time    fetch    from    the agriculturists a price higher than what the maimed ones will fetch from the butchers. The breeding bulls    and working bullocks (cattle and buffaloes) do not, therefore, require as much protection as cows and calves do.

The next question is as to what should be the scope of    the ban on    the slaughter of animals. One view is that    the slaughter of all animals (cattle and    buffaloes) of    all categories should be regulated by the State and that animals below a specified age or not suffering from some natural deformity should not be allowed to be slaughtered. Drastic and stringent    regulations have been imposed by municipal laws and have been tried but experience shows that they    are not sufficient    at least to protect the cow. It has    been found to be extremely difficult to enforce the    regulations for inadequacy of staff and veterinary inspectors, little or no check on the veterinary inspectors who succumb to    the pressure or inducements of the butchers and pass animals not really useless as and for useless and aged animals. A large percentage of    the animals not fit    for slaughter    are slaughtered surreptitiously outside the municipal limits. For reasons of economy rapacious gowalas    or callous agriculturists find it uneconomical to maintain the dry    cow and even resort to cruel practices and maim the cow in order to get    her passed for slaughter. As already    stated,    the she-buffalo and the breeding bulls and working bullocks (both cattle and buffaloes) for their value, present and future,    do not ruin the same amount of danger as a dry    cow does. Regulation of slaughter of animals above a specified age may not be quite adequate protection for the cow but may be quite sufficient for the breeding    bulls    and working bullocks and the she-buffaloes. These considerations induce us to    make an exception even in favour of the old    and decrepit cows. The counsel for the petitioners, be it    said to their credit, did not contend otherwise. After giving our most careful and anxious consideration to the pros and cons of the problem as indicated and discussed above and keeping in view the presumption in favour of    the validity of the legislation and without any the least disrespect to the opinions of the legislatures concerned we feel that in discharging the ultimate responsibility cast on us by    the Constitution we must approach and analyse    the problem    in an objective and realistic manner and then    make our pronouncement on the reasonableness of the    restrictions imposed    by the impugned enactments.    So approaching    and analysing the problem, we have reached the conclusion    (i) that a total ban on the slaughter of cows of all ages    and calves of cows and calves of she-buffaloes, male and female, is quite reasonable and valid and is in consonance with    the directive principles laid down in Art. 48, (ii) that a total ban on the slaughter of she-buffaloes or breeding bulls or working    bullocks (cattle as well as buffaloes) as long as they are as milch or draught cattle is also reasonable    and valid and (iii) that a total ban on the slaughter of    she- buffaloes, bulls and bullocks (cattle or buffalo) after they cease to be capable of yielding milk or of    breeding or working as draught animals cannot be supported as reasonable in the interest of the general public.

We now    proceed to test each of the impugned Acts in    the light of the aforesaid conclusions we have arrived at    The Bihar Act, in so far as it prohibits the slaughter of    cows of all ages and calves of cows and calves of buffaloes, male and female, is valid.    The Bihar Act makes no    distinction between    she-buffaloes,    bulls    and bullocks (cattle    and buffaloes) which are useful    as milch or breeding or draught animals and those which are not and indiscriminately prohibits slaughter of she-buffaloes,    bulls and bullocks (cattle and buffalo) irrespective of their age or usefulness. In our view    the ban on    slaughter of    she-buffaloes,    breeding bulls    and working    bullocks (cattle. and buffalo) which are useful is reasonable but of those which are not useful is not valid. The question as to when a she-buffalo, breeding bull or working bullock (cattle and buffalo) ceases to be useful and becomes    useless and    unserviceable    is a    matter    for legislative determination. There is no provision in    the Bihar Act in that behalf. Nor has our attention been drawn to any rule which may throw any light on the point. It    is, therefore, not possible to    apply    the doctrine    of severability and uphold the ban on the slaughter of    she- buffaloes, breeding bulls and working bullocks (cattle    and buffalo) which are useful as milch or breeding    or working animals    and strike down the ban on the slaughter of those which are useless. The entire provision banning    the slaughter of she-buffaloes, breeding    bulls,    and working bullocks (cattle and buffalo) has, therefore, to be struck down.    The result is that we uphold and declare that    the Bihar Act in so far as it prohibits the slaughter of cows of all ages and calves of cows and calves of buffaloes,    male and female, is constitutionally valid and we hold that, in so far    as it    totally prohibits the    slaughter of    she- buffaloes, breeding bulls and working bullocks (cattle    and buffalo), without prescribing any test or requirement as to their age or usefulness, it infringes the rights of    the petitioners under Art. 19 (1) (g) and is to    that extent void.

As regards the U. P. Act we uphold and declare, for reasons already stated, that it is constitutionally valid in so    far as it prohibits the slaughter of cows of all ages and calves of cows, male and female, but we hold that in so far as it purports to totally prohibit the slaughter of breeding bulls and working bullocks    without    prescribing any test    or requirement as    to their age    or usefulness,    it offends against Art. 19 (1) (g) and is to that extent void.

As regards the Madhya Pradesh Act we likewise declare    that it is constitutionally valid in so far as it prohibits    the slaughter of cows of all ages and calves of cows, male    and female,    but that it    is void in so    far as    it totally prohibits the    slaughter of breeding    bulls and working- bullocks without prescribing any test or requirement as to their age or usefulness. We also hold that the Act is valid in so    far as it regulates the slaughter of other animals under certificates granted by    the authorities mentioned therein.

In the    premises we direct the respondent States not to enforce    their respective Acts in so far as they have    just been declared    void by us. The parties will bear and    pay their own costs of these applications.

Petitions partly allowed.

The rival contention is thus    formulated: The dictionary meaning of the word " butcher " is " slaughterer of animals for food, dealer in meat". It is one of the    three well- known occupations included in the homely phrase, "    the butcher, the baker, the candlestick maker". The expression " butcher ", as popularly understood now, has no reference to any particular animal. The term is now applicable to any person    who slaughters any animal for food. Taken in    this larger    sense,    the facts alleged in the petitions do    not, according to learned counsel for the respondents, indicate that any of the impugned Acts has the effect of completely stopping the    petitioners' businesses. They seek    to illustrate their point thus: Take the case of    piece-goods merchants. Some may deal in country made piece-goods    and others may import and sell piece-goods manufactured, say, in England    or Japan. Some may deal in dhotis and saris    and others may confine their activities to the purchase and sale of long cloth or other varieties of piece-goods. They    are, however, all piece-goods merchants. Suppose in the interest of our indigenous textile industry and to protect the best interests of the general public it becomes necessary to stop the import of foreign cloth altogether.    Such stoppage    will not prevent any cloth merchant from    carrying on his trade or business as cloth merchant, for    he can still deal in cloth and piecegoods manufactured in India. Will any piece-goods merchant, whose business was only to import foreign piece-goods for sale in India,    be heard to complain that the stoppage of import of foreign cloth has completely prevented him from carrying on business as a piece goods merchant and, therefore,    such stoppage of import of foreign cloth being more than a    mere restriction violates his fundamental right    under    Art. 19(1)(g) ? Where, they ask, will the argument    lead us ? Suppose that the import of one particular variety of piece- goods,    say saris, is stopped but import of dhotis and    all other varieties of piece-goods are allowed. On a reasoning at par with that urged in the last case should not a dealer who imports only that variety of piece-goods the import of which has been stopped be entitled to say that his business has been completely stopped ? Suppose the State in    the interest of Khadi and cottage industries imposes a ban on the manufacture or sale of cloth of a very fine count,    will a merchant who deals only in fine cloth be entitled to    say that as he deals only in fine cloth, the ban has completely prohibited the carrying on of his business ? The truth of the matter, they submit, is that the ban on the import of foreign    cloth or on the manufacture of cloth of very    fine count is only    a restriction imposed    on the    piece-goods business, for the ban affects one or more of the segments of that business    but leaves the    other    segments untouched. There is, therefore, only some restriction imposed on piece- goods merchants in that they cannot deal in certain kinds of piece-goods, but they are not wholly prevented from carrying on piece-goods    business. The position, they say, is    the same in the case of    butchers (Kasais). The butchers' business, they point out, has several segments and a ban on one segment may be complete prohibition of the activities of that segment,    for restriction is complete as    far as it extends, but in the larger context of the butchers' business such a    ban, they submit, operates only as a restriction. Far less, it is said can a dealer in hides, complain    that the ban imposed on the slaughter of cattle and buffaloes prevent him from, carrying on his, business as a hide merchant, for he call still carry on his business in ,fallen hides. Indeed the statistics collected in the Report of Marketing of Hides in India, Second Edition, p.9, show that the percentage of fallen    hides to the total cattle population is 8.8 whereas the percentage    of slaughtered hides to the total cattle population is 1.4. The. same    argument has been advanced regarding    gut merchants and other dealers in subsidiary things. It is not necessary for us to dilate upon or to express    any opinion    on the rival contentions    as abstract    pro. positions . The matter has to be dealt with    objectively. What do the Acts actually provide ? In Uttar    Pradesh    the petitioners can freely slaughter buffaloes (male or female adults or calves) and sell their meat for food.    It is    also open to them to slaughter goats and sheep and sell the meat. Therefore, so    far as the butchers of    Uttar    Pradesh    are concerned, there A,, obviously no total prohibition of their occupation but only some restrictions have been imposed on them in respect of one part of their occupation, namely, the slaughter of cows, bulls, bullocks, and calves of cows.    In Madhya    Pradesh    the Act, it is true, totally    forbids    the slaughter of cows including bulls, bullocks and cows    but permits the slaughter of buffaloes (male or female adults or calves)    under    certain conditions. Therefore, in Madhya [Pradesh also    there is no law totally prohibiting    the carrying on of the business of a butcher. In    Bihar there is, no doubt,    a total ban against the slaughter of    all animals    belonging to the, species of bovine cattle which includes buffaloes (male or female adults or calves) but it is still possible for the butchers of Bihar to slaughter goats and sheep and sell goats' meat and mutton for food. As will be -seen hereafter the total ban on the slaughter of bulls, bullocks, buffaloes (male or female adults or calves) irrespective of their age or usefulness is, in our view, not a reasonable restriction imposed on, the butchers (Kasais) in the    interest of the general public and    that being, therefore, void, no question can arise, even in Bihar, of any total prohibition of the rights of butchers to carry on their occupation or business.    In this view of    the matter    we need express no final opinion on the vexed question as to whether restrictions permissible under    cl. (6) of    Art. 19 may extend to total prohibition.    That question was left open by this court in Saghir Ahmed v.    The State O. U. P. and others (1) and in The State of Bombay v. R. M. D. Chamarbaugwala (2) and in the view we have taken on the facts and    construction of the    several    Acts under consideration,    does not call for an answer in disposing of these petitions. The question that calls for an answer from us is    whether these restrictions are    reasonable in    the interests of the general public.

Clause    (6) of Art. 19 protects a law which imposes in    the interest of the general public reasonable restrictions on the exercise of the right conferred by sub cl. (g) of    cl. (1) of Art. 19.    Quite obviously it is left to the court, in case of dispute, to determine the reasonableness of    the restrictions imposed by the    law. In determining    that question the court, we conceive, cannot proceed on a general notion    of what is reasonable in the abstract or even on a consideration of what is reasonable from the point of    view of the    person    or persons on    whom the restrictions    are imposed. The right conferred by sub-cl. (g) is expressed in general    language and    if there had    been no qualifying provision like el. (6), the right so conferred    would    have been an absolute one. To the person who has this right    any restriction will be irksome and may well be regarded by    him as unreasonable. But the question cannot be decided on that basis.    What the court has to do is to consider whether    the restrictions imposed are reasonable in the interests of    the general    public. In the State of Madras v. V. 0. Row    (3) this court has laid down the test of reasonableness in    the following terms:

" It is important in this context to bear in mind that    the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned-, (1) [1955] 1 S.C.R. 707, 724.    (2) [1957] S.C.R. 874. (3) [1952] S.C.R. 597, 607.

and no    abstract standard, or general pattern,    of reason- ableness can be laid down as applicable to all cases.    The nature    of the right alleged to have been infringed,    the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby,    the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and    forming their    own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in    the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of    responsibility    and self-restraint    and the sobering reflection    that    the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives    of the people have,    in authorising    the imposition of    the restrictions, considered them to be reasonable."

These observations have been adopted by this Court in later cases, e. g., The State of West Bengal v. Subodh Gopal    Bose (1) and Ebrahim Vazir Mavat v. The State of Bombay (2).    In this connection it will also be well to remember    the observation of    Mahajan J. in The State of Bihar v. Maharajadhiraj    Sir Kameshwar    Singh of Dharbangha    (3), namely, that " the legislature is the best judge of what is good for the community, by whose suffrage it    comes    into existence....... This should be the proper approach for    the court but the ultimate responsibility for determining    the validity of the law must rest with the court and the court must not shirk that    solemn    duty cast on it by    the Constitution.    We have, therefore, to approach the problem now before us in the light of the principles laid down by this Court.

The avowed object of each of the impugned Acts is to ensure the preservation, protection, and improvement of the cow and her progeny. This solicitude (1) (1954] S.C.R. 587, 627. (2) [1954] S.C.R. 933, 949-950, (3) [1952] S.C.R. 889, 041.

arises    out of the appreciation of the usefulness of cattle in a predominantly agricultural society. Early Aryans recognised its importance as one of the most indispensable adjuncts of agriculture. It would appear that in Vedic times animal flesh formed the staple food of    the people. This is attributable to the fact that the climate in    that distant    past was extremely cold and the Vedic Aryans    had been a pastoral people before they settled down    as agriculturists.    In Rg. Vedic times goats, sheep, cows, buffaloes and even horses were slaughtered for food and    for religious sacrifice and their flesh used to be    offered to the Gods. Agni is called the " eater of ox or cow " in    Rg. Veda (VIII. 43, 11). The staying of a great ox (Mahoksa) or a " great Goat " (Mahaja) for the entertainment of a distinguished guest has been enjoined in the Satapatha Brahmana (111. 4. 1-2). Yagnavalkya also expresses similar view (Vaj 1. 109). An interesting account of those early days will be found in Rg. Vedic Culture by Dr. A. C.    Das, Ch. 5, pp. 203-5, and in the History of Dharmasastras (Vol. II-, Part II) by P. V. Kane at pp. 772-773.    Though    the custom    of slaughtering of cows and bulls prevailed during the Vedic period, nevertheless, even in the Rg.    Vedic times there seems to have grown up a revulsion of feeling against the custom. The cow gradually came to acquire a special Sanctity and was called " Aghnya " (not to be slain). There was a    school of thinkers amongst the Rsis, who set their face against the custom of killing such useful    animals as the cow and the bull.    High praise was bestowed on the    cow as will appear from the following verses from    Rg. Veda, Book VI, Hymn XXVIII (Cows) attributed to the authorship of Sage Bhardvaja:

" 1. The kine have come and brought good fortune; lot    them rest in the cow-pen and be happy near US.

Here let them    stay prolific,    many coloured, and yield through many morns their milk for Indra.

6. O cows, ye fatten e'en the worn and wasted, and make    the unlovely beautiful to look on.

Prosper    my house, ye with auspicious voices, your power is glorified in our assemblies.

7. Crop goodly pasturages and be prolific;    drink    pure sweet water at good drinking places.

Never be thief or sinful man your master, and may the    dart of Rudra still avoid you.

(Translation by Ralph Griffith). Verse 29 of Hymn 1 in Book X.of Atharva Veda forbids cow slaughter in the following words:

" 29.    The slaughter of an innocent, O Kritya, is an awful deed, Slay not cow, horse, or man of ours. " Hymn 10 in the same Book is a rapturous glorification of the cow: " 30.    The cow is Heaven, the cow is Earth,    the cow is Vishnu, Lord of life, The Sadhyas and the Vasus have drunk the outpourings of the cow.

34. Both Gods and mortal men depend for life and being on the cow.

She hath become this universe; all that the sun ,surveys is she. "

P.V. Kane argue,, that in the times of' the Rg. Veda    only barren cows,if at all, were killed for sacrifice or meat and cows yielding milk were held to be not fit for being killed. It is    only in this way, according to him, that one    can explain    and reconcile the apparent conflict    between    the custom of killing COWS for food and the high praise bestowed oil the cow in Rg. Vedic times. It would appear that    the protest    raised    against the slaughter of cows greatly increased in volume till the custom was totally abolished in a later age. The change of climate perhaps also make    the use of beef food unnecessary and even injurious to health. Gradually cows became indicative of the wealth of the owner. The Neolithic Aryans not having been acquainted with metals, there were no coins in current use in the earlier stages of their civilisation, but as they were eminently    a pastoral people almost every family possessed a sufficient number of cattle and 'some of them exchanged them for the    necessaries of their life,. The value of cattle (Pasu)was, therefore, very great with the early Rg.    Vedic Aryans.    The ancient Romans also used the word pecus or pecu (pasu) in the sense of wealth or money. The English words, " Pecuniary " and " impecunious ", are derived from    the Latin root pecus or pecu, originally meaning cattle.    The possession of cattle in those days denoted wealth and a    man was considered rich or poor according to the large or small number    of cattle that he owned. In    the Ramayana    King Janaka's wealth was described by reference to the large number of herds that he owned.    It appears that the cow    was gradually raised to the status of divinity.    Kautilya's Arthasastra has a special chapter (Ch.    XXIX) dealing with the "superintendent of cows" and the duties of the owner of cows are also referred to in Ch. XI of Hindu Law in    its sources    by Ganga Nath Jha. There can be no gainsaying    the fact that the Hindus in general hold    the cow in great reverence and the idea of the, slaughter of cows for food is repugnant to their notions and this sentiment has in    the past even led to communal riots. It is also a fact    that after the recent partition of the country this agitation against the slaughter of cows has been further    intensified. While we agree that the constitutional question before us cannot    be decided on grounds of mere    sentiment, however passion    ate it may be, we, nevertheless, think that it    has to be taken into consideration, though only as one of    many elements, in arriving    at a judicial    verdict    as to    the reasonableness of the restrictions.

Cattle    in India, it is said, has a treble role to play, namely, (i) to produce milk for food, (ii) bulls for draught and (iii) manure for agriculture. It is necessary to advert to the arguments advanced under each head. According to the 1951 census there were 15,60,00,000 heads of    cattle    and 4,00,00,000 of buffaloes making a total of 19,60,00,000 or roughly 20,00,00,000 of animals belonging to the species of bovine    cattle.    In India there are 123 heads of cattle including buffaloes per square mile and 43 heads to every 100 persons.    Out of    the total cattle population    of 15,60,00,000 and buffalo population of 4,00,00,000 there were in Bihar 1,52,97,000 cattle and 33,16,000 buffaloes, in Madhya    Pradesh    1,48,58,000 heads of cattle and 26,00,000 buffaloes and in Uttar Pradesh 2,35,13,000 heads of cattle and 92,50,000 buffaloes.

The total distribution of cattle and buffaloes, according to age, sex and work, was as follows:-

      Males            Cattle           Buffaloes
Breeding bulls               6,52,0003,06,000
Working bullocks        5,88,18,00060,36,000
Bulls and bullocks over three
years not in use for breed-
ing and work, i. e., useless. 27,35,0004,66,000 Young stock under once year. 97,63,000 28,70,000 Young stock one to three years of age. 1,22,57,000 23,84,000 Total    8,42,25,000 1,20,02,000 Females Breeding cows, i.e., cows, over 3 years kept for breeding or milk production.    4,67,23,000    2,10,08,000 Cows over 3 years used for work.    23,17,000    5,34,000 Cows over 3 years not in use for work or breeding purposes, i. e., useless. 12,02,0003,15,000 Young stock over 1 year. 93,05,00042,02,000 Young stock 1 to 3 years of age.    1,25,44,00052,83,000 Total    7,20,91,000 3,13,42,000 Grand total    15,63,16,000    4,33,44,000 As stated in the Report on the Marketing of Cattle in India issued    by the    Directorate of    Marketing and    Inspection, Ministry of Food and Agriculture, Government of India, 1956, the proportion of males in cattle is a little more than half of the    total    cattle    population whilst in the case of buffaloes, females predominate and are about    3/4 of    the total.    For agricultural purposes male cattle are generally preferred for their comparative lightness and active nature. Of the    total 39,57,000 unserviceable heads of cattle in India there were 5,35,000 in Bihar,    1,55,000 in Madhya Pradesh    and 1,84,000    in Uttar Pradesh. Of the total 7,81,000 unserviceable buffaloes there were 1,20,000 in Bihar, 15,000 in Madhya Pradesh and 28,000 in Uttar Pradesh. Although, according to the census figures given above,    our cattle    wealth is, in number, the highest in the world    the milk production is perhaps the lowest. According to    the figures given in the Second Five Year Plan, at the beginning of the First    Five Year Plan the milk output was    over 1,80,00,000 ton,;. The average yield of milk per cow in India was 413    pounds which is about    the lowest of    any country    in the world    as against 8,000 pounds in    the Netherlands, 7,000 pounds in Australia, 6,000 pounds in Sweden and 5,000 pounds in the U.S.A. Out of the total yield she-buffaloes give 54% while cows give only 42%. Buffalo milk is richer in fat, 6 to 7% as compared to 4.5% of fat in the cow's milk,. But cows milk is richer in other important content.,, and is more easily digestible. The average    per capita consumption of milk and milk products was worked    out by the First Five Year Plan at 5.5 ounces, i.e., about    2.5 chhataks or 1/6 of a seer per day, though 10    ounces    are recommended by nutrition experts. In the Facts and Figures about Bihar published in 1955 by the Department of Public Relations, the average annual. milk yield is stated to be 620 lbs. per    cow and 1,526    lbs. per buffalo. It is recognised in Human Nutrition vis-a-vis Animal Nutrition in India,    a Memorandum prepared by the    Nutrition Advisory Committee of the Indian Council of Medical Research and    the Animal    Committee of the Indian Council of    Agricultural Research that    the performance of Indian much animals, particularly of cows, is extremely poor and that from a more economic point    of view there does not seem    to be    any justification for maintaining animals yielding 2 pounds of milk or less per day and perhaps these animals would better be eliminated.    But, as the Memorandum also says, one should realise, before such    a drastic action is    taken,    the consequences that may    follow from the adoption of    this policy,    for if the animals giving 2 pounds or less of    milk are condemned as unsuitable it will mean elimination of more than 90% of the present day much cows and loss of about 70,00,000 tons out of 97,00,000 tons of annual gross production of milk from this group, besides a large number    of bullocks that they will bear. According to    the table of the    human food requirement    recommended by    the Nutrition Advisory Committee    of the    Indian    Council of Medical Research 10 ounces of milk per adult unit per day is necessary to make tip a balanced diet. The    total human population, according    to 1951 census, was 35,68,00,000 which,    at the current rate of increase, was estimated to have reached the figure of 37,76,00,000 in 1956. Treating children below 10 years of age as 0.83 of adult value,    the total adult unit is calculated at 31,30,00,000.    At the rate of 10    ounces of milk per adult per day we Would require 3,23,00,000 tons of milk per annum. It is clear, therefore, that in India, where a large section    of tile population consists of vegetarians, there is a huge shortage in    the supply of milk.    Cows and other milch cattle, therefore, are of very great    value to this    country. If milk yielding capacity were    the only consideration the comparatively smaller number of female buffaloes which produce 54% of    the total milk supply of our country would obviously    have deserved a far greater preference over the cows in    our estimation. But, as    pointed    out by Pandit Thakurdas Bhargava, there is another important consideration which is perhaps    more important from the standpoint of    human    food supply.    It is the bullock that takes the largest share in meeting    the power requirements for    our    agricultural production. Based perhaps on age old experience Indian agriculturists habitually prefer a cow bullock to a buffalo bullock. As a result of the evolutionary process of trial and error, we find in this country about 10 cow bullocks for every buffalo bullock as is shown by the 1951 census figures set out above.    If this relative distribution is considered unavoidable for our crop production, we may expect no change in the existing ratio in the population of the two species unless a revolution can be brought about in our methods    and practice of land cultivation.    According to the Report on the Marketing of Cattle in India, 1956, p. 22, animals    are utilised in    India    under four heads:(1)    used    for cultivating6,54,22,000 (2) used for carting in urban areas-11,80,000    (3) used as    pack animals-67,705    and (4) used in oil crushers, etc.4,30,000, making    up the total of 6,70,99,705. As against this we have, according to the 1951 census figures set    out above, 5,88,18,000 working bullocks and 60,36,000    working    he- buffaloes, aggregating to 6,48,54,000.    There is therefore a shortage of 22,45,705 bullocks including buffaloes which presumably represent the dry cows and female buffaloes    put to agricultural labour, as shown in the Second Five    Year Plan at pp. 281-282. It is true that tractors have begun to be used but they are still of a negligible number and    for many years to come the country will have to    depend    upon animal    power for her agricultural operations in order to grow enough food for meeting the demands of the fast growing human population. In Uttar Pradesh, according to the    1951 census, there were 2,35,12,839 heads of cattle and 92,50,488 buffaloes, making a total of 3,27,63,327. The total area of Uttar Pradesh was 7,22,78,809 acres out of which 4,92,30,120 acres were under cultivation. If a pair of bullocks can be taken on an average to cover 10 acres the total area under cultivation will require 98,46,000 bullocks. The    1951 census    figures    show 1,15,00,000 of    bullocks which    are slightly in excess of the number of bullocks required    for the purposes of cultivation only. Indeed both in Uttar Pradesh and in Bihar, according to the First Five Year Plan, p. 247, there was a surplus of about 40,00,000 of bullocks while in the Punjab and Pepsu the number available was    just adequate to meet the demands. If, however, account is taken of the    other    purposes for which bullocks may be used, namely,    for carting or as pack animals or for    working    oil crushers or drawing water from the wells for irrigation purposes, the total available animal power will fall short of the requirements. In addition to that we have to keep in view the necessity for further expansion of the cultivated area to meet    the food requirements of the fast growing population, and in that case the deficit will go up still further. In Bihar, according to the    Facts and Figures, 1956, the total number of animal population of    the bovine species were:-

Cattle Cows and oxen (adults)    1,15,64,310 Cows and oxen (young stock) 37,33,166 Buffaloes (adult)    23,78,293 Buffaloes (young stock)    9,37,582 The number of working cattle andbuffaloes works out to one for every 6 acres of net area under cultivation.    It follows, therefore, that our working animals    are perhaps just about sufficient    to supply the    power to keep    our agricultural operations up to the necessary standard,    but the demand for food is growing and more lands will have to be brought under cultivation and we shall require a    far large number of these animals.
There are in India, 6,50,000 breeding bulls and 3,10,000 breeding buffaloes. There are 4,63,40,000 breeding cows and 2,09,90,000 breeding buffaloes.    According to the First Five Year Plan, 1). 274, approximately 750 farm bred bulls of known pedigree are distributed annually by the Government in different States for developing and improving the draught as well as the milch breeds. Besides there are some approved bulls belonging to private owners. But the existing number of private bulls meets less than 0.    15% of the total requirements of the country. According to the Report on the Marketing of Cattle in India, p. 9, service bulls number approximately 6,52,000 or about 0.4% of the total cattle in the country. In the absence of an arrangement to castrate or remove the    inferior bulls before a pedigree bull is located    in an area, the progeny of the pedigree bulls    have access to scrub, which nullifies the efficiency achieved in the first generation.    It is, therefore, clear that    the breeding bulls (cattle and buffaloes) are insufficient to meet the requirements. It is true that the    practice of artificial insemination has been introduced in some centres but for many years to come Indian animal husbandry will have to depend on the ordinary breeding bulls. We are in short supply of them.

The third utility of these animals (cattle and buffaloes) is the dung. The First Five Year Plan at p. 255 records    that 80,00,00,000 tons of dung are available    per annum.    50% of this is used as fuel by cultivators and    the other 50% is used as manure. If suitable supplies of    fuel could be made available to the cultivators then the entire quantity of dung could be used for manure. It is doubtful, however, if the cultivators would be in a position to    pay for the fuel    and utilise the entirety of the dung    for manure.    Cattle urine    is also useful    for the nitrogen, phosphates and potash contents in it. In terms of money the dung and the urine will account for a large portion of    the agricultural income in India. Indeed Pandit Thakurdas Bhargava appearing as    amnicus curiae has claimed    Rs. 63,00,00,000 per year as the contribution of the dung of these animals to the national income.

The discussion in the foregoing    paragraphs clearly establishes the usefulness of the cow and her progeny.    They sustain    the health of the nation by giving them the    life giving    milk    which is so essential an item in a scientifically    balanced diet.    The working bullocks    are indispensable for our agriculture, for they supply power more than any    other    animal.    Good    breeding bulls    are necessary to improve    the breed so that the    quality    and stamina of the future cows and working bullocks may increase and the production of food and milk may improve and be in abundance. The dung of the animal is cheaper than    the artificial manures and is extremely useful. In short,    the backbone of Indian agriculture is in a manner    of speaking the cow and her progeny. Indeed Lord Linlithgow has truly said-" The cow and the working bullock have on their patient back the whole structure of Indian agriculture. " (Report on the Marketing of Cattle in India, p. 20). If, therefore, we are to attain sufficiency in the production of food, if we are to maintain the nation's health, the efficiency    and breed    of our    Cattle    population must be    considerably improved. To attain the above objectives we    must devote greater    attention to    the preservation, protection    and improvement of the stock and organise our agriculture    and animal    husbandry on modern and scientific lines. We have, therefore, to examine the provisions of the impugned    Acts and ascertain whether they help in achieving    the    said objectives, or are calculated to hinder that process.    In that context all the considerations above alluded to    must enter the judicial verdict and if the impugned Acts further the aforesaid purpose then only can the restrictions imposed by the impugned Acts    be said to be    reasonable in    the interest of the general public.

We turn now to the other side of the picture. In examining the conspectus of the problem the Court cannot overlook    the fact, emphasised in the petition, that the petitioners and a very large number of similarly situated persons, even if their number does not come up to the figure mentioned in the petition, are butchers (Kasais) by occupation and make an income    of about Rs. 150 to Rs. 200 per month and that    they will be seriously affected, if not completely thrown out of occupation, by the impugned Acts. It is true, for reasons hereinbefore stated, that they cannot complain that    they have been completely    deprived of their occupation    or business but the enactments, if valid, will compel them to make fresh arrangements for the supply of animals which    are permitted to be slaughtered for food. Theoretically it    may not be impossible for them to do so, but in practice it is more than likely to cause considerable inconvenience to them and may even involve extra expenses for them. The    hide merchants, who, they say in the petition, have    made their arrangements for the supply to them of hides of    slaughtered animals    up to    95 % of their    requirements, may find it difficult to make fresh arrangements for procuring fallen hides. The same observations may be made about the    gut merchants. The immediate effect of the operation of these Acts is to cause a serious dislocation of the    petitioners' business without any compensatory benefit. In Saghir Ahmad v. The State of U. P. (1), at p. 727 this Court observed, with respect to the persons engaged in running buses    for carrying passengers:

" One thing, however, in our opinion, has a decided hearing on the question of reasonableness and that is the immediate effect which the legislation is likely to (1)[1955] 1 S.C.R. 707,724.

produce. Hundreds of citizens are earning their livelihood by carrying on this business on various routes    within    the State of Uttar Pradesh.    Although they carry on the business only with the aid of permits, which are granted to them by the authorities under the    Motor    Vehicles Act,    no compensation has been allowed to them under the Statute. " Similar    inconvenience    may easily be supposed to    have befallen the petitioners and others of their class and    the immediate and possibly adverse impact of the impugned    Acts on their occupation or business must, therefore, be taken into account as one Of the important factors in judging    the reasonableness or otherwise of the said Acts. There is also no getting away from the fact that beef or buffalo    meat is an item of food for a large section of    the people in India and in particular of the State of Bihar    and Uttar Pradesh. Table    11 at p. 24 of the Report on    the Marketing of Cattle in India shows that in the year 1948 the annual demand for cattle and buffaloes for purposes of    food was: 1.8,93,000 heads of cattle and 6,09,000 buffaloes. These figures indicate that beef and buffalo flesh are    used for food by a large section of the people in India. It is wellknown that poorer sections of Muslims, Christians    and members of the Scheduled Castes and Tribes consume beef    and buffalo    flesh.    There is also a limited demand for beef by the foreign population. Buffaloes yield comparatively coarse    and tough meat of inferior quality and    consequently the demand for beef is greater than that for buffalo flesh. Further    the price of the buffalo flesh is 20 to 40%    less than that of beef. The prices of beef and buffalo meat    are much cheaper than that of mutton or goat's meat    and consequently beef and buffalo flesh come within the reach of the poorer people perhaps for a day or two in the week. According to the figures given in the Report of the Expert Committee at 1). 12, in 1938 in -Bombay the prices were    Rs. 0-3-9 per pound of beef, Rs. 0-2-0 per pound    of buffalo flesh and Rs. 0-5-6 for mutton and goats' flesh. In    1950 these prices went up respectively to Rs. 0-12-0, Rs. 0-11-0 and Rs. 1-3-0.

The comparatively low prices of beef, and buffalo flesh, which are nearly half of that of mutton or goats' flesh, is the main reason for    their demand.    Habit    is perhaps secondary. Learned counsel for some of: the    petitioners cited the case of the boys and girls residing    in boarding houses attached to the Anglo-Indian schools where the    only meat which the boarding school authorities can afford to supply    as part of the diet of the growing children is    beef and that only on a day or two in the week. The Acts, if enforced, will prevent them. from having even    this little bit of nourishment and amenity. It is true that after    the partition of the country the Muslim population has decreased and further that some Muslims may not habitually    take beef or buffalo flesh, but even so a large section of    the poorer    people    belonging to the Muslim, Christian    and Scheduled Castes communities do consume beef    and buffalo flesh.    And this is not merely a matter of amenity or luxury but is at any rate partially', a matter of necessity. Table VII set out at p. 32 of the Memorandum on Human Nutrition vis-a-vis Animal Nutrition in India recommends one ounce of meat daily whereas the available quantity is much less    and the attainable quantity under the new plan may be 1/3 ounce or a little more. Poorer people, therefore, who can hardly afford fruit or milk or ghee are likely to    suffer    from malnutrition, if they are deprived of even one    out-ice of beef or buffalo flesh which may sometimes be within their reach.    This aspect of the matter must also be    taken    into account in assessing the reasonableness of the provisions of the impugned Acts.

The number of cattle and buffaloes not fit for breeding or working    has already been set out. Further particulars in detail    are available    from Appendices II and    III to    the Report    on the Marketing of Cattle in India.    The figures given there show that according to the 1951 census the total number    of unserviceable male cattle was 27,35,000 and    that of female cattle was 12,02,000. Out of these there were in Bihar 2,93,000 male and2,42,000 female, in Madhya Pradesh 1,24,000 male and31,000 female and in Uttar Pradesh 1,63,000 male    and 21,000 female.    The unserviceable buffaloes in the whole of India, according to 1951 census, were 7,81,000 out of which 4,66,000 were males and 3,15,000 were females.    Out of the total there were in Bihar 61,000 male buffaloes    and 59,000 female, buffaloes, in Madhya Pradesh    10,000    male and 5,000 female, in Uttar Pradesh 16,000 male and 12,000 female.    According, to the First Five Year Plan, p. 273, the overall estimates made by the Cattle Utilisation Committee    show that about 10 % of the cattle population in    India or roughly 1,14,00,000    adults    were unserviceable or unproductive. The Report of    the Cattle Preservation and Development Committee also put the figure of old, decrepit and unproductive cattle at 10% of the total population. Pandit Thakurdas Bhargava does not accept    the correctness of these figures. It is difficult to find one's way out of the labyrinth of figures and it will be futile for us    to attempt to come to a figure of unserviceable agricultural animals    which may even be approximately correct. For our purpose it will suffice to say that there is a fairly large number of cattle and buffaloes which    are not of    any use for breeding    or working purposes.    The position may be accepted as correctly summed up at p. 274 of the First Five Year Plan where it is stated,    inter alia, that there is a deficiency of good milch cows    and working bullocks and that there exists a surplus of    useless or inefficient animals.

Mohd. Hanif Quareshi & Others vs The State of Bihar
Supreme Court of India - Equivalent citations: 1958 AIR 731, 1959 SCR 629 - Bench: Das, Sudhi Ranjan (Cj), Aiyyar, T.L. Venkatarama, Das, S.K., Gajendragadkar, P.B., Bose, Vivian - DATE OF JUDGMENT: 23/04/1958

ACT:
       Cow     slaughter-Legislation    Placing       total     ban-If
       Constitutional -Directive Principles of State Policy,  value
       of-Fundamental            rights         Reasonable
       restrictions--Test-Intention  in Supreme Court  Proceedings,
       when  permissible-Bihar    Preservation  and  Improvement     of
       Animals    Act, 1955 (Bihar II of 1956)-U.     P. Preve  lion     of
       Cow Slaughter Act, 1955 (U.  P. 1 of 1956)-C.  P. and  Berar
       Animal  Preservation  Act,  1949 (C.  P. and  Berar  LII     of
       1949)-Constitution  of  India, Arts.  14,  19,  48---Supreme
       Court Rules, 0. XLI, r. 2.



HEADNOTE:
The Bihar Preservation and Improvement of Animals Act  ,955,
put  a    total  ban on the slaughter  of     all  categories  of
animal,,  of  the  species  of bovine  cattle.     The  U.  P.
Prevention  of Cow Slaughter Act, 1955, put a total  ban  on
the slaughter of cows and her progeny which included  bulls,
bullocks,  heifers and calves.    The C. P. and  Berar  Animal
Preservation Act, 1949, placed a total ban on the  slaughter
of cows, male or female calves of cow, bulls, bullocks,     and
heifers     and  the slaughter of buffaloes  (male     or  female,
adults    or  calves) was permitted only under  a     certificate
granted by the proper authorities.  No exception was made in
any  of these Acts permitting slaughter of cattle  even     for
bona fide religious purposes.  These three Acts were enacted
in  pursuance  of the directive principles of  State  policy
contained in Art. 48 Of the Constitution.  The    petitioners,
who  were engaged in the butcher's trade and its  subsidiary
undertakings, challenged the constitutional validity of     the
three  Acts on the grounds that they infringed their  funda-
mental rights guaranteed under Arts. 14, 19(1)(g) and 25  of
the  Constitution.   The  respondents  contended  that     the
impugned  Acts    were constitutional and valid as  they    were
made in consonance with the directive principles of Art-  48
which  were superior to the fundamental rights and that     the
impugned Acts did not offend Art. 14, 19(1)(g) or 25
Held,  (i) that a total ban on the slaughter of cows of     all
ages  and  calves  of cows and of  she-buffaloes,  male     and
female, was quite reasonable and valid;
(ii)that  a total ban on the slaughter of  she-buffaloes  or
breeding  bulls     or  working bullocks  (cattle    as  well  as
buffaloes),  as long as they were capable of being  used  as
milch or draught cattle, was also reasonable and valid; and
(iii)  that a total ban on the slaughter  of  she-buffaloes,
bulls
630
and  bullocks  (cattle or buffalo) after they ceased  to  be
capable     of  yielding  milk or of  breeding  or     working  as
draught     animals  was not in the interests  of    the  general
public and was invalid.
The directive in Art. 48 for taking steps for preventing the
slaughter  of  animals is quite explicit  and  positive     and
contemplates   a  ban  on  the    slaughter  of  the   several
categories  of animals specified therein, namely,  cows     and
calves    and  other cattle which answer    the  description  of
milch or draught cattle.  The protection is confined only to
cows and calves and to those animals which are presently  or
potentially  capable  of yielding milk or of doing  work  as
draught     cattle but does not extend to cattle which  at     one
time  were milch or draught cattle but which have ceased  to
be  such.  The directive principles of State policy set     out
in Part IV of the Constitution have to conform to and run as
subsidiary to the fundamental rights in Part 111.
State of Madras v. Smt.     Champakam Dorairajan, [1951] S.C.R.
525, followed.
The  ban on the slaughter of cows even on the slaughter     day
did  not violate the fundamental rights of  the     petitioners
under  Art.  25     as it had not    been  established  that     the
sacrifice  of a cow on that day was an obligatory overt     act
for a Mussalman to exhibit his religious belief and idea.
Ratilal     Panachand  Gandhi v. The State     of  Bombay,  [1954]
S.C.R. 1055, applied.
The  impugned  Acts  which affected only  the  butchers     who
slaughtered  cattle  and not the  butchers  who     slaughtered
sheep or goats, did not offend Art. 14 Of the  Constitution.
The  different    categories of animals being  susceptible  of
classification    into separate groups on the basis  of  their
usefulness  to society, the butchers who kill each  category
may  also  be placed in distinct classes  according  to     the
effect    produced  on  society by the carrying  on  of  their
respective occupations.     This classification is based on  an
intelligible  differentia which places the petitioners in  a
well  defined  class and distinguishes them from  those     who
slaughter  sheep or goats and this differentia has  a  close
connection with the object sought to be achieved by the     im-
pugned    Acts,  namely,    the  preservation,  protection     and
improvement of livestock.
In  determining     the  question    of  the.  reasonableness  of
restrictions imposed on the fundamental rights conferred  by
Art.  19(1)(g) the Court cannot proceed on a general  notion
of  what  is  reasonable  in the abstract  or  even  on     the
consideration  of what is reasonable from the point of    view
of  the     person     or persons on    whom  the  restrictions     are
imposed.   What the Court has to do is to  consider  whether
the restrictions imposed are reasonable in the interests  of
the  general  public.  The test of reasonableness  has    been
laid  down in State of Madras v. I.  G. Row,  [1952]  S.C.R.
597  at     602.    It  should  also  be  remembered  that     the
legislature
631
is the best judge of what is good for the community.  Though
a  constitutional question cannot be decided on the  grounds
of  the sentiment of a section of the people, it has  to  be
taken  into  consideration,  though  only  as  one  of     the
elements,  in  arriving     at a judicial    verdict     as  to     the
reasonableness of the restrictions.
The effect of the impugned Acts on the fundamental rights of
the   petitioners   under  Art.     19(1)(g)  is    direct     and
instantaneous  as soon as the Acts are brought    into  force,
and  it has to be determined whether they can  be  justified
under  cl. (6) of Art. 19 The country is in short supply  of
milch  cattle,    breeding bulls and working bullocks,  and  a
total  ban on the slaughter of these which are essential  to
the  national economy for the supply of     milk,    agricultural
working power and manure is a reasonable restriction in     the
interests  of  the general public.  But a total ban  on     the
slaughter of useless cattle, which involves a wasteful drain
on the nation's cattle feed which is itself in short  supply
and  which  would deprive the useful cattle of    much  needed
nourishment,  cannot be justified as being in the  interests
of the general public.
Under O. XLI r. 2, Of file Supreme Court Rules    intervention
is  permitted only to the Attorney-General of India  or     the
Advocates-General  for    the  States.   There  is  no   other
provision  for permitting a third party to intervene in     the
proceedings before the Supreme Court.  In practice, however,
the  Supreme  Court, in- exercise of  its  inherent  powers,
allows a third party to     intervene when such third party  is
a  party to some proceedings in the Supreme Court or in     the
High  Courts  where  the same or similar  questions  are  in
issue,    for the decision of the Supreme Court will  conclude
the case of that party.



JUDGMENT:
ORIGINAL JURISDICTION: Petitions Nos. 58, 83, 84, 103,    117, 126, 127, 128, 248, 144 & 145 of 1956 & 129 of 1957. Petitions under Article 32 of the Constitution of India    for enforcement of Fundamental Rights.

H. J. Umrigar, N. H. Hingorani and A. G. Ratnaparkhi,    for the petitioners in all the petitions except Petition No. 103 of 1956. The impugned Acts infringe the fundamental rights under Art. 19(1)(g) of the petitioners who are butchers, tanners, gut merchants, curers and cattle dealers to carry on their respective trades. Where, as in the present case, the enactment on the face of it violates a fundamental right the burden lies on those who support it to show that it falls within the purview of cl. (6) of Art. 19. Saghir, Ahmed v. The State of U.P., ([1955] 1 S.C.R. 707 at 726);

Chiranjitlal Chowdhuri v. The Union of India, ([1950] S.C.R. 869 at 891-892). The impugned Acts put a total ban on    the trade and business of the petitioners who kill only cattle. Total prohibition of    a trade    which    is not    immoral or obnoxious can    never be reasonable restriction    within    the meaning    of el. (6) of Art. 19.    Chintaman Rao v. The State of Madhya Pradesh, ([1950] S.C.R. 759 at    765);    R.M. Sheshadri v. The District Magistrate ( [1955] 1 S.C.R.    686 at 689, 690); Cooverjee B. Bharucha v. The Excise Commis- sioner,    ( [1954] S.C.R. 873); Rashid Ahmed. The Municipal Board,    Kairana, ([1950] S.C.R. 566).    Total    ban on    the slaughter of cattle is not in the interests of the general public.    Animal husbandry will suffer by a total ban. There is shortage of fodder and pasture in the country and    the useless and uneconomic cattle will deprive the useful cattle of these things. Setting up of Gosadans for the uneconomic cattle will be a tremendous waste of public money. [Counsel referred to various official reports in this connection.] The impugned Acts create an odious discrimination between butchers and persons dealing solely in cows, bulls, etc., and those dealing in sheep and goats, and offend Art.    14. These Acts which single out the petitioners' community which kills only cows, bulls, etc., are hostile and discriminatory legislation. Ye Cong Eng v. Trinidad, (70 L. Ed. 1059 at 1071);    Fowler    v. Rhode Island, (97 L. Ed. 828); Lane v. Wilson, (83 L. Ed. 1281 at 1287); Ligget Co. v. Baldrige, (73 L. Ed. 204).

The impugned Acts also contravene Art. 25 as they prohibit the Mussalmans from performing the religious practice of the community to sacrifice the cow on the occasion of Bakr    Id. Ratilal Panachand Gandhi v. The State of Bombay, ([1954] S.C.R. 1055 at 1063).

The directive principles of State policy set out in Art. 48 can never override fundamental rights. The State of Madras v. Sm.    Champakam Dorairajan, ([1951]) S.C.R. 525 at 530); Saghir Ahmed's Case, ( [1955] ) 1 S.C.R. 707 at 727).    The impugned Acts traverse, beyond the directive principles in Art. 48.

The Bihar and the Madhya Pradesh Acts which affect inter- State trade in cattle and beef offend Art. 301 and are    void as the    assent    of the President was    riot taken before enacting them.

Frank Anthony    and K. L. Mehta, for    the petitioners in Petition No. 103 of 1956. Section 9 of the U. P. Prevention of Cow    Slaughter Act makes the slaughtering of cattle a cognisable and non-bailable    offence. This    and other provisions of the Act are ex facie restrictions on the right of the petitioners to carry on their trade. The onus is on the respondents to show that the restrictions are reasonable restrictions in the interests of the general public. Chintaman Rao v. The State of Madhya Pradesh, ([1950] S. C. R. 759 at 763); Seghir Ahmed v. The State of U. P., ([1955] 1 S. C. It. 707 at 726). The legislation is colourable    and mala fide and is inspired by religious motives. State of Madras    v. V. G. Rao, ([1952] S. C. R. 597). Article 48 in so far as its imposes blanket ban on cow would have to yield to Art. 19 (1) (g). The restrictions in the Act amount to total prohibition and    extinction of    the trade of    beef butchers. Saghir Ahmed's case; Dwarka Prasad Laxmi Narain v. The    State    of U. P., ( [1954] S.C.R. 803), Fairmout Creamery Co. v. Minnesota, (71 L. Ed. 893 it    897).    The impugned Act offends Art. 14 as it discriminates against the beef butchers. These    butchers have    a legal right to slaughter cow    for food or sacrifice.    Naubahar Singh v. Qadir Bux, (A. 1. R. 1930 All. 753); Shahbazkhan v. Umrao Puri, (I. L. R. 30 All. 181); Emperor -v. Muhammad Yakub, (I. L. R. 32 All. 571).

C. K. Daphtary, Solicitor-General of India, with Mahabir- Prasad,    Advocate-General of    Bihar    and S.    P. Varma (respondent in Petitions Nos. 58, 83 and 84 of    1956),    and with R. H. Dhebar, for the State of Bombay (respondent in Petition No. 117 of 1956). The legislature has thought    fit that slaughter    of cattle should be stopped in the inter states of animal husbandry and public policy. It is not for the Court to say that such a policy should not have    been adopted. Both on the question of policy at-id the extent of the restrictions the Court should interfere only if it is convinced that in no view of the matter could the restrictions be    reasonable. There are two conflicting opinions on    this controversial matter,    i. e., whether there should be total ban or    only partial ban. In such a case the opinion of the    legislators must prevail and the Court should not interfere where there is controversy as to facts. State of -Madras v. V. G.    Rao, ([1952]    S. C.    R. 597 at 606); The    State of Bihar v. Maharajadhiraja Sir Kameshwar Singh, ([1952] S. C. R. 889 at

941); Arumugham v. State of Madras, (I. L. R. [1953]    Mad.

937).    Unless it can be said that the restrictions have no bearing on the object sought to be achieved the    legislation must be upheld. Article 37 enjoins the State to apply    the directive principles of State policy in Part    IV of    the Constitution in making law., The legislation is    in accordance with the direction given in Art. 48. The object of the legislation is not to control any trade or industry but to improve the breed of cattle and to organise animal    husbandry and agriculture. Unless the    legislation directly hits trade or business it does not infringe Art. 19 (1) (g). A. K. Gopalan v. The State, ( [1950] S. C. R. 88 at 101); Ram Singh v. The State of Delhi, ( [1951] S. C. R. 451 at    455-457); R. S. Ram Jawaya Kapur v. The State of Punjab, ([1955] 2 KS. C. R. 225); State of Bombay v. R. M. D. Chamar-baugwala, ( A. I. R. 1957 S. C. 699 at 721). B.Sen and R. H. Dhebar, for the State of Bombay    (respondent in Petitions Nos. 126 to 128 and 248 of 1956), and for    the State of Madhya Pradesh (respondent in Petition No. 144 of 1956).

M.Adhicary, Advocate-General for the, State    of Madhya Pradesh    and I. N. Shroff, for the State of Madhya Pradesh (respondent in    Petition No. 145 of    1956),    adopted    the arguments of C. K. Daphtary.

H. N. Sanyal, Additional Solicitor-General of India,    G.C. Mathur and C. P. Lal, for the State of U. P. (respondent in Petitions Nos. 103 of 1956 and 129 of 1957). The provisions of the U. P. Act have a reasonable relation to the purpose in view i. e. the directive in Art. 48 and consequently the Act cannot be said to offend Art. 19 (1) (g). Chintaman Rao v. The State of Madhya Pradesh, ([1950] S. C. R. 759 at 763). According to    the facts    and figures given in    the Gosamvardhan Enquiry Committee's Report the cattle population was actually decreasing and    total    ban on slaughter was necessary to protect    and preserve the cattle. The State of U. P.    had made ample provisions for looking after the decrepit cattle, and such cattle also was not uneconomic as it yielded hides and manure.

The U. P. Act which prohibits the slaughter of    cattle    but not that of buffaloes does not offend Art.    14 as    the discrimination    is based upon proper classification.    The buffalo does not require any protection. The female buffalo is in no danger as its yield of milk is very high. The    he- buffalo is not very useful for draught purposes and there is no need to protect it.    Besides, the buffalo population is steadily increasing.

The U. P. Act does not violate Art. 25. Article 25 of    our Constitution is similar to Art. 8 of the Irish Constitution. There is no religious compulsion on    the Mussalmans to sacrifice a cow on Bakr Id Day.

Thakurdas Bhargava, as amicus curiae. The directive principles of State policy in Part IV of the Constitution are superior to fundamental rights and the enactments which are in    pursuance of the directions given by Art. 48    are valid and constitutional even though they may infringe    the fundamental rights of the petitioners.    The total ban on cow slaughter in the impugned Acts is justified and is in    the interests of the general public. The    facts    and figures given in the official reports are inaccurate, and there is no real shortage of fodder or pasture land. There is shortage of milk in the country and it is essential to protect    the cow. The bullock takes the largest share in meeting    the    power requirement for    our    agricultural production. Cow dung manure contributes about rupees 63 crores per year to our national income.

H.J. Umrigar, in reply.

Frank Anthony, also replied.

1958. April 23. The Judgment of the Court was delivered by DAS C. J.-These 12    petitions under Art.    32 of    our ,Constitution raise the question of    the constitutional validity of three several legislative enactments banning the slaughter of certain animals passed by the States of Bihar, Uttar    Pradesh    and Madhya Pradesh    respectively.    The controversy concerning the slaughter of cows has been raging in this country for a number of years and in the past it generated considerable illwill amongst the    two major communities resulting even in riots and civil commotion in some places. We are, however, happy to note that the rival contentions of the parties to these proceedings have    been urged before us without importing into them the heat of communal passion and in a rational and objective way, as a matter    involving constitutional issues should be. Some of these petitions come from Bihar, some from U. P. and    the rest from Madhya Pradesh, but as they raise common questions of law, it will be convenient to deal with and dispose of them together by one common judgment.

Petitions Nos.    58 of    1956, 83 of 1956 and    84 of    1956 challenge the    validity of the Bihar Preservation    and Improvement of    Animals Act,    1955 (Bihar 11 of 1956), hereinafter referred to as the Bihar Act. In Petition    No. 58 of 1956 there are 5 petitioners, all of whom are Muslims belonging to the Quraishi community which is    said to be numerous and an important section of Muslims of    this country. The members of the community are said to be mainly engaged    in the butchers' trade and its    subsidiary undertakings such as    the sale of hides, tannery,    glue making, gut making and blooddehydrating, while some of    them are also engaged in the sale and purchase of cattle and in their distribution over the various areas in the State of Bihar as well as in the other States of the Union of India. Petitioners Nos. 1 and 2 are butchers and meat vendors who, according to the petition, only slaughter cattle and    not sheep    or goats and are    called    " Kasais "    in contradistinction to the "'Chicks " who slaughter only sheep and goats.    After slaughtering the cattle these petitioners sell the hides to tanners or bide merchants    who are also members of their community and the intestines    are sold to gut    merchants. It    is said that    there    are approximately 500 other Kasais in Patna alone apart from 2 lacs of other    Kasais all over the State of    Bihar.    The correctness of    these    figures    is not admitted by    the respondent State but we do not doubt that the number of Kasais is considerable.    Petitioner No. 3 is the owner of a tanning    factory and Petitioner No. 4 is a gut merchant, while Petitioner No. 5 is the General Secretary of Bihar State Jamiatul Quraish. In petition No. 83 there are    180 petitioners residing at different places in the State of Bihar who are all Muslims whose occupation is that of Kasais or cattle dealers or exporters of hides. In Petition No. 84 there are 170 petitioners all residents of Patna District who are also Muslims belonging to the Quraishi community and who carry on business as Kasais or dealers of cattle.    All the petitioners in these three petitions are    citizens of India.

The Bill, which was eventually passed as the Bihar Act,    was published in the Bihar Gazette on April 20,    1953.    The scheme of the Bill, as originally drafted, was, it is said, to put a total ban only on the slaughter of cows and calves of cows below three years of age. The Bill was sent to a Select Committee and    its scope appears to    have    been considerably enlarged, as will be seen presently. The Bill, as eventually passed by the Bihar Legislature, received    the assent    of the    Governor on December    8, 1.955, and    was published in the Official Gazette on    January 11, 1956. Section    1 of the Act came into force immediately upon    such publication, but before any notification was issued under sub-s. (3) of s. 1 bringing the rest of the Act or any    part of it into force in the State or any part of it, the present petitions were filed in this Court challenging the consti- tutional validity of    the Act. On applications for an interim order restraining the State of Bihar from issuing a notification under s. 1(3) of the Act bringing the Act    into operation having been made    in these petitions,    the respondent State, by and through the learned Solicitor General of India, gave an undertaking not to issue such notification until the disposal of these petitions and, in the premises, no order was considered necessary to be made on those applications.

Petition No. 103 of 1956 has been filed by two    petitioners, who are both Muslims residing in Uttar Pradesh and carrying on business in that State, the first one as a hide merchant and the second as a butcher. Petitioners in Petition    No. 129 are eight in number all of whom are Muslims residing and carrying on business    in Uttar Pradesh either as    gut merchants or cattle dealers, or Kasais or beef    vendors or bone dealers or hide merchants or cultivators. All    the petitioners in these two applications are citizens of India. By these two    petitions the    petitioners challenge    the validity of the Uttar Pradesh Prevention of Cow Slaughter Act, 1955 (LT.    P. 1 of 1956), hereinafter referred to as the U. P. Act and pray for a writ in the nature of mandamus directing the respondent State of Uttar Pradesh not to    take any steps in pursuance of the U. P. Act or to interfere with the fundamental rights of the petitioners. Petitions Nos. 117 of 1956, 126 of 1956, 127 of 1956, 128 of 1956, 248 of 1956, 144 of 1956 and 145 of 1956 have    been filed by 6, 95, 541, 58, 37, 976 and 395    petitioners respectively, all of    whom are Muslims belonging to    the Quraishi Community and are mainly engaged in the butchers' trade and its subsidiary undertaking such as the supply of hides,    tannery, glue making, gutmaking    and blood- dehydrating. Most of them reside at different places which, at the dates of the filing of these petitions were parts of the State of Madhya Pradesh, but which or parts of which have, in the course of the recent re-organisation of    the States,    been transferred to and amalgamated with the State of Bombay. In consequence of such re-organisation of    the States the State of Bombay has had to be substituted for the respondent State of Madhya Pradesh    in the    first    five petitions and to be added in the sixth petition, for a    part of the district in which the petitioners resided had been so transferred, while the State of Madhya Pradesh continues to be the respondent in the seventh petition.By these petitions the petitioners %II of whom are citizens Of India, challenge the validity of the C. P.    and Berar Animal Preservation Act, 1949 (C. P. and Berar Lll of 1949), as subsequently amended.

In order to appreciate the arguments advanced for    and against    the constitutional validity of the three impugned Acts it will    be necessary to refer to the relevant provisions of the Constitution under or pursuant to which they have been made. Reference must first be made to    Art. 48 which will be found in Chapter IV of the    Constitution which enshrines what are called the directive principles of )State policy.    Under Art. 37 these directive principles are not enforceable by any court of law but are    nevertheless fundamental in the governance of the country and are to be applied by the State in making laws. Article 48 runs thus:- Organisation    48. The State shall endeavour    of agriculture and    to organise agriculture 'and animal husbandry.    animal husbandry oil modern and scientific lines and shall, in parti-

cular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle."

The principal purpose of this article, according to learned counsel    for the petitioners, is to direct the ,State to endeavour to organise agriculture and animal husbandry on modern    and scientific lines and the rest of the provisions of that article are ancillary to this    principal purpose. They contend that the States are required to take steps    for preserving and improving the breeds and for prohibiting    the slaughter of the animals specified therein only with a    view to implement that principal purpose, that is to say, only as parts of the general scheme for organising our    agriculture and animal husbandry    on modern and    scientific lines. Learned    counsel for the petitioners refer to the marginal note to Art. 48 in support of their contention on this    part of the case. They also rely on entry 15 in List II of the Seventh Schedule to the Constitution. That entry reads: " Preservation, protection and improvement of stock and    prevention of animal diseases; veterinary training and practice." There is no separate    legislative head for prohibition of slaughter of animals and that fact, they claim, lends support to their conclusion that    the prohibition of    the slaughter of animals specified in    the last part of Art. 48 is only ancillary to the principal directions for preservation, protection and improvement of stock, which is what is meant by organising agriculture    and animal    husbandry. Learned counsel for the respondents    and Pandit Thakurdas Bhargava, who appears as amicus cutriae, on the other hand, maintain that the article contains three distinct and separate directions, each of which should, they urge, be implemented independently -and as    a separate charge.    It is not necessary for us, on this occasion, to express a final opinion on this question. Suffice it to say that there is no conflict between the different parts of this article and indeed the    two last directives    for preserving and improving the breeds and for the    prohibition of slaughter of certain specified animals represent, as is indicated by the words " in    particular ",    two special aspects    of the preceding general directive for organising agriculture and animal husbandry on modern and scientific lines.    Whether the last two directives are ancillary to the first as contended for by learned counsel for the peti- tioners or are separate and independent items of directives as claimed by counsel on the other side, the directive    for taking steps for preventing the slaughter of the animals is quite explicit and positive and contemplates a ban on    the slaughter of the several categories of animals specified therein, namely, cows and calves and    other cattle which answer    the description of milch or draught cattle.    The protection recommended by this part of the directive is, in our opinion, confined only to cows and calves and to those animals    which    are presently    or potentially    capable of yielding milk or of doing work as draught cattle but    does not, from the very nature of the purpose for which it is obviously recommended, extend to cattle which at one time were milch or draught cattle but which have ceased to be such. It is pursuant to these directive principles and in exercise of the powers conferred by Arts. 245 and 246 of the    Constitution read with entry 15 in List 11 of the Seventh    Schedule thereto that the, Legislatures of Bihar, Uttar Pradesh and Madhya, Pradesh have respectively enacted the statutes which are challenged as unconstitutional.    In order properly, to appreciate the meaning and scope of    the impugned Acts it has to be borne in mind that each one of those Acts is    a law    with respect    to " preservation, protection and improvement of stock ",    and their constitutional    validity will    have to be judged in    that context    and    against    that background. Keeping    this consideration in view, we proceed now to    examine    the relevant provisions of the three Acts.

The title of the Bihar Act is " An Act to provide for    the preservation and improvement of certain animals in the State of Bihar." Sub-section (3) of s. 1    provides that    that section    shall    come into force at once    and the remaining provisions of the Act or any of them shall come into force on such date as the State Government may, by notification, appoint    and that different dates may be appointed    for different provisions and for different areas. Section 2 is the definition section and the following definitions are to be noted:

(a) " Animal " means-

(i)bull, bullock, cow, heifer, buffalo, calf,    sheep,    goat and-any other ruminating animal;

(ii) poultry; and

(iii)    elephant, horse, camel, ass, mule, dog, swine    and such other domesticated animals as may be specified in    this behalf    by the    State Government by notification in    the Official Gazette;

(b)............................................................

(c) "    bull " means an uncastrated male above the age of three years belonging to the species of bovine cattle ;

(d) "    bullock    " means a castrated male above the age of three years belonging to the species specified in clause

(e)" calf " means a female or a castrated or uncastrated male, of    the age of three years and below belonging to the species specified in clause (c);

(f).........................................................

(g) "    cow " means a female above the age of    three years belonging to the species specified in clause (e) ; Section    3, which is the principal section for the purposes of the Bihar Petitions, runs as follows:

" 3. Prohibition of slaughter of cow, calf, bull or bullock. Notwithstanding    anything contained in any law for the    time being in force or in any usage or custom to the contrary, no person shall slaughter a cow, the calf of a cow, a bull or a bullock; Provided that the State Government may, by general or special order and subject to such conditions as it    may think fit to impose, allow the slaughter of any such animal for any medicinal or research purposes."

Section    4 provides for penalties for contravention or attempted contravention or abetment of contravention of    any of the provisions of s. 3. The remaining provision; in    the following three chapters are not material for    our present purpose. It will be noticed that the words "    bull ", " bullock    ", " calf " and " cow" have been defined in    cls.

(c), (d), (e) and (g) of s. 2 as belonging to the species of bovine cattle.    The expression " species of bovine cattle " is wide enough to in-elude and does in ordinary parlance include    buffaloes,(male, or female adults or calves). Therefore, the corresponding    categories of    buffaloes, namely, buffalo bulls, buffalo bullocks, buffalo calves    and she-buffaloes must be taken as included in the four defined categories of    the species of bovine cattle and as    such within    the prohibition embodied in s. 3 of the Act. It is to be, noted, however, that the allegations in the petitions and the affidavits in opposition proceed on the assumption that buffaloes (male or female adults or calves) were    not within    the protection of the section and, indeed, when    the attention of learned counsel for the petitioners was drawn to the reference to the " species of bovine cattle " in each of the four definitions, they still made an    attempt to support the latter view by suggesting that if buffaloes were to be included within    the words defined in cls. (c), (d), (e) and (g), then there    was no necessity for specifying it separately in the definition of " animal " in el. (a). This argument does not appear to us to be sound at all, for, then, on a parity of reasoning it was wholly unnecessary to specify    heifer    " in    the definition of " animal ". If heifer    is not to    be included in the definition of cow "    because heifer " is separately enumerated in 'the definition of animal " then an astounding result will follow, namely, that the operative part of s. 3 will not prohibit the slaughter of " heifer " at all-a result which obviously could not possibly have been intended. The    obvious reason for the enumeration of    the different categories of animals in the definition of " animal " must have been to provide a word of wide import so that all those sections where the wider word " animal " is used may apply to the different kinds of animals included- within that term. If the intention of the Bihar legislature was to exclude buffaloes (male or female adults or calves) from the protection of s. 3 then it must be said that it has failed to fulfil its intention.

The U.    P. Act is intituled " An Act to prohibit    the slaughter of COW and its progeny in Uttar Pradesh."    The preamble to the Act recites the expediency " to prohibit and prevent    the slaughter of cow and its progeny in Uttar Pradesh". Although the 17. P. Act has been    made under entry 15 in List 11    and presumably pursuant to    the directives contained in Art. 48 nowhere in the Act is there any express reference    whatever to the " preservation, protection or    improvement of stock." Section 2 defines " beef " as meaning the flesh of cow but does not include    the flesh of cow contained in sealed containers and imported as such in Uttar Pradesh.    Clause (b) is very important, for it defines    " cow " as including a bull, bullock,    heifer, or calf. Section 3, which is the operative section runs thus:

3. Notwithstanding anything contained in any other law for the time being in force or any usage or custom to the contrary, no person shall slaughter or cause to be slaughtered or offer or cause to be offered for slaughter any cow in any place in Uttar Pradesh."

Two exceptions are made by s. 4 in respect of cows suffering from contagious or infectious disease or which is subjected to experimentation in the interest of    medical or public health research. Section 5 prohibits the sale or transport of beef or beef products in any form except for medicinal purposes and subject to' the provisions of the exception therein    mentioned. Section 6, on which counsel for    the State relies, provides for the establishment, by the State Government or by any local authority wherever so directed by the State Government, of institutions as may be necessary for taking care of uneconomic cows. Under s. 7 the State Government may    levy such charges or fees,    as may be prescribed for keeping uneconomic cows in the institutions. Section    8 provides for punishment for contravention of    the provisions of ss. 3, 4 and 5. Section 9 makes the offences created by the Act cognisable and non-bailable.    Section 10 gives power to the State Government to make rules for    the purpose    of carrying into effect the provisions of the    Act. It should be noted that the U. P. Act protects the " cow ", which,    according to the definition, includes    only bulls, bullocks, heifer and calves. There is no reference to    the species of bovine cattle and, therefore, the buffaloes (male or female adults or calves) are completely    outside    the protection of this Act.

The C. P. and Berar Act of 1949 was originally intituled " An Act    to provide for preservation of certain    animals by controlling the slaughter thereof," and the preamble recited that it was " expedient to provide for the preservation of certain    animals by controlling the    slaughter thereof." ,Animal " was defined in s. 2 as meaning an animal specified in the    schedule. The schedule specified the following categories of animals, namely, (1) bulls, (2) bullocks,    (3) cows, (4) calves, (5) male and female    buffaloes and    (6) buffalo    calves. Section 4    originally prohibited    the slaughter of an    " animal " without certificate.    There was then no total ban on the slaughter of any animal as defined.    ,In 1951, the C. P. and Berar Animal Preservation Act, 1949, was amended    by the Madhya Pradesh Act XXIII of 1951. By    this amending Act the words, " by prohibiting or " were added to the long title and    the preamble before the word " controlling " and a new clause was added to s. 2 as el.    (i)

(a) defining " cow " as including a female calf of a cow and sub-s. 1 of s. 4 was amended so as to read as follows: "(1) Notwithstanding anything contained in any other law for the. time being in force or in any usage to the contrary, no person-

(a) shall slaughter a cow; or

(b) shall slaughter any other animal unless he has obtained in respect of such other animal a certificate    in writing signed by the executive authority and the veterinary officer for the area in which the animal is to be slaughtered    that the animal is fit for slaughter."

Thus a total ban was imposed on the slaughter of cows    and female    calf of a cow and the male calf of a    cow, bull, bullock, buffalo (male or female adult or calf) could be slaughtered on obtaining a certificate.    The Act was further amended    in 1956 by Act X of    1956 substituting for    the amended definition of " cow " introduced by the amending Act of 1951 as cl. (1)(a) of s. 2 of the C. P. and Berar Animal Preservation Act, 1949, a new definition of " cow " as including a male or female calf of a cow, bull, bullock or heifer and a new schedule specifying only (1) cows, (2) male and female buffaloes and (3) buffalo calves was    substituted for the original schedule to the Act. Shortly put    the position in Madhya Pradesh has been this: while under the C. P. and Berar Animal Preservation Act, 1949, as it originally stood, the slaughter of all categories of animals mentioned in the    original schedule were only    controlled by    the requirement of a certificate from the appropriate authority before    the actual slaughter, by the amending Act XXIII of 1951, a total ban was imposed on the slaughter of " cows " which was then defined as including only a female calf of a cow and the slaughter of all other categories    of animals coming    within    the original schedule    was controlled    and finally    after    the amending Act X of 1956, there is now a total ban on the slaughter of " cows " which    by the    new definition includes a male or female calf of a    cow, bull, bullock or heifer so that the male and female buffaloes    and buffalo    calves (male and female) can still be    slaughtered but on certificate issued by the    proper    authorities mentioned in the Act. The Madhya Pradesh Act X of 1956, amending the C. P. and Berar Animal peservation Act, 1949, received the assent of the Governor on May 18, 1956. The C. P. and Berar Animal Preservation Act, 1949, as amended up to 1956, is hereinafter referred to as the Madhya Pradesh Act.' To sum up, under the Bihar Act there is in the State of Bihar a total ban on slaughter of all categories of animals of the species of bovine cattle. In Uttar Pradesh there is, under the If. P. Act, a total ban on the slaughter of    cows and her progeny which include bulls, bullocks, heifer or calves.    The buffaloes (male or female adults or calves) are completely outside the protection of    the Act. In    the present    Madhya    Pradesh and the districts which formerly formed    part of Madhya Pradesh but have    since    been transferred to    the State of Bombay and where    the Madhya Pradesh law including the Madhya Pradesh Act still applies, there is a total ban on the slaughter of cow, male or female calves    of a cow, bulls, bullocks, or heifers and    the slaughter of buffaloes (male or female adults or calves) are controlled in    that their slaughter    is permitted under certificate granted by the proper authorities mentioned in the Act. No exception has been made in any of these three Acts permitting slaughter of cattle even for bona    fide religious purposes such as has been made, say, in the Bombay Animal Preservation Act, 1948 (Bom. LXXXI of 1948). As already stated the petitioners, who are    citizens of India,    and Muslims by religion, mostly belong to    the Quraishi community and are    generally engaged in    the butchers' trade and its subsidiary undertakings such as supply of hides, tannery, glue making, gut making and blood de-hydrating, Those, who carry on the butchers trade,    are mostly. Kasais who, the petitioners say    kill only cattle but not ship or goat which are slaughtered by other persons known as Chicks.    Learned counsel appearing for the petitioners challenge the, constitutional validity of the    Acts respectively applicable    to them on three grounds, namely, that they offend the    fundamental rights guaranteed to them by Arts. 14 ' 19(1)(g) and 25. Learned counsel appearing for the respondent States, of course, seek to support their respective enactments by controverting    the reasons    advanced by learned counsel for the petitioners. Bharat Go-Sevak Samaj, All India AntiCow-Slaughter Movement Committee, Sarvadeshik    Arya pratinidhi Sabha    and M. P. Gorakshan Sangh put in petitions for leave to intervene in these proceedings. Under Order XLI, rule 2, of' the Supreme Court Rules intervention is permitted only to the Attorney- General    of India or the Advocates General for    the States. There is no other express provision for permitting a third party to intervene in the proceedings before this Court. In practice, however, this Court, in exercise of its inherent powers, allows a third party to intervene when    such third party is a party to some proceedings in this Court or in the High Courts where the same, or similar questions are in issue, for the decision of this Court will conclude the case of that party. In the present case,    however, the peti- tioners for intervention are not parties to any    proceedings and we    did not think it right to permit them formally to intervene in    these proceedings; but in view of    the importance of the questions involved in these proceedings we have heard Pandit Thakurdas Bhargava, who was instructed by one of these petitioners for intervention, as amicus curiae. We are deeply indebted to all learned counsel appealing    for the parties and to Pandit Thakurdas Bhargava for    the valuable assistance they have given us.

Before    we actually take tip and deal with    the alleged infraction of    the petitioners' fundamental rights, it is necessary to dispose of a preliminary question raised by Pandit Thakurdas Bhargava. It will be recalled that the impugned Acts were made by the States in discharge of the obligations laid on them by Art. 48 to endeavour to organise agriculture and animal husbandry and in particular to take steps for preserving and improving the    breeds    and prohibiting the slaughter of certain    specified animals. These directive principles, it is true, are not    enforceable by any court of law but nevertheless they are fundamental in the governance    of the country and it is the duty of the State to give effect to them.    These laws having thus    been made in discharge of that fundamental obligation imposed on the State, the fundamental rights conferred on the citizens and others by    Chapter III of    the Constitution must be regarded as subordinate to these laws. The directive principles, says learned counsel, are equally, if not more, fundamental and must prevail. We are unable to accept    this argunent as sound. Article 13(2) expressly says that    the State shall not make any law which takes away    or abridges the rights conferred by Chapter III of our Constitution which enshrines the fundamental rights. The directive principles cannot over-ride this categorical    restriction imposed on the legislative power of the State.    A harmonious interpretation has to be placed upon the Constitution and so interpreted it    means    that the State should certainly implement the directive principles but it must do so in such a way    that its laws do not    take away or    abridge    the fundamental rights, for otherwise the protecting provisions of Chapter III will be " a mere rope of sand    ". As    this Court has said in the State of Madras v. Smt. Champakam Dorairajan (1) , "The directive principles of State policy have to conform to and run as subsidiary to the Chapter on Fundamental Rights".

Coming    now to the arguments as to the violation of 4    the petitioners' fundamental rights, it will be convenient to take up first the complaint founded on Art. 25(1).    That article runs as follows:

" Subject to public order, morality and health and to    the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion". (1) [1951] S.C.R. 525 531-

After referring to the provisions of el. (2) which lays down certain    exceptions which are not material for    our present purpose    this Court has, in Ratilal Panachand Gandhi v.    The State of Bombay (1) explained the meaning and scope of    this article thus:

" Thus, subject to the restrictions    which this article imposes, every    person has a fundamental right under    our Constitution not merely to entertain such religious belief as may be approved of by his judgment    or conscience but to exhibit hisbelief and ideas in such overt acts    as are enjoinedor sanctioned    by his religion and further    to propagatehis religious views for the edification of others. Itis immaterial also whether the propagation is made by a person in his individual capacity or on behalf of    any church    or institution. The free exercise of    religion by which is meant the performance of outward acts in pursuance of relgious belief, is, as stated above, subject to State regulation imposed to secure order, public health and morals of the people.    "

What then, we inquire, are the materials placed before us to substantiate the claim that the sacrifice of a cow is enjoined or sanctioned by Islam ? The materials before us are extremely meagre and it is surprising that on a matter of this description the allegations in the petition should be so vague. In the Bihar Petition No. 58 of 1956 are    set out the following bald allegations:

That the petitioners further respectfully submit that    the said impugned section also violates the fundamental rights of the    petitioners guaranteed tinder Article    25 of    the Constitution in-as-much as on the occasion of their Bakr Id Day, it is the religious practice of the    petitioners' community to sacrifice a cow on the said occasion. The poor members of the community usually sacrifice one cow for every 7 members whereas it would require one sheep or one goat for each member which would entail considerably more expense. As a result of the total ban imposed by the impugned section the petitioners would not even be allowed to make the    said sacrifice which is a practice (1) [1954] S.C.R. 1055, 1062-1063.

and custom in their religion, enjoined upon them by    'the Holy Quran, and practised by all Muslims    from    time immemorial and recognised as such in India. " The allegations in the other petitions are similar. ,These are met by an equally bald denial in para.    21 of    the affidavit in opposition. No affidavit has been filed by any person specially competent to expound the relevant tenets of Islam.    'No reference    'is made in the petition to    any particular Surah of the Holy Quran which, in terms, requires the sacrifice    of a cow. All that was placed before us during    the argument were Surah XXII, Verses 28 and 33,    and Surah XXII,.    What the Holy book enjoins is that people should    pray unto the Lord and make sacrifice.    We have no affidavit before us    by any Maulana explaining    the implications of those Verses or throwing any light on    this problem. We, however, find it laid    down in Hamilton's translation of Hedaya Book XLIII at p. 592 that it is    the duty of every    free Mussulman, arrived at    the age of maturity, to offer a sacrifice on the Yd Kirban, or festival of the sacrifice, provided he be then possessed of Nisab and be not    a traveller.    The sacrifice established for    one person is a goat and that for seven a cow or a camel. It is therefore, optional for a Muslim to sacrifice a goat for one person    or a cow or a camel for seven persons.    It does    not appear to be obligatory that a person must sacrifice a    cow. The very fact    of an option seems to run counter to    the notion    of an obligatory duty.    It is, however, pointed    out that a    person with six other members of his    family    may afford    to sacrifice a cow but may not be able to afford to sacrifice seven goats. So there may be an economic compulsion although there is no religious compulsion. It is also pointed out that from time immemorial    the Indian Mussalmans have been sacrificing cows and this practice, if not enjoined, is certainly sanctioned by, their religion and it amounts to their practice of religion protected by    Art.

25. While the petitioners claim that the sacrifice of a cow is essential, the State denies the obligatory nature of    the religious practice.    The fact, emphasised by    the respondents, cannot be disputed, namely, that many Mussalmans do not    sacrifice a cow on the Bakr Id Day.    It is part of the known history of India that the Moghul Emperor Babar    saw the wisdom of prohibiting the slaughter of cows as and by way of religious sacrifice and    directed his son Humayun to    follow    this example. Similarly Emperors Akbar, Jehangir, and Ahmad Shah, it is said, prohibited cow slaughter. Nawab Hyder Ali of Mysore made cow slaughter an offence punishable with    the cutting of the hands of the offenders.    Three of the member of the Gosamvardhan Enquiry Committee set up by the Uttar Pradesh Government in 1953 were Muslims and concurred in the unanimous recommendation for total ban on slaughter of cows. We have, however, no material on the record before us which will enable us to say, in the face of the foregoing facts, that the sacrifice of a cow on that day is an obligatory overt act for a Mussalman to exhibit his religious belief and idea. In the premises, it is not possible for us to uphold this claim of the petitioners.

The next complaint is against the denial of the equal protection of    the law. It    is thus formulated: The petitioners are Muslims by religion and butchers (Kasais) by occupation and they carry on the trade of selling beef.    The impugned Acts prejudicially affect only the Muslim Kasais who kill cattle but not others who kill goats and sheep    and who sell goats' meat and mutton. It is, therefore, clear that only the Muslim Kasais, who slaughter only cattle    but not sheep or goats, have been singled out for    hostile    and discriminatory    treatment. Their further grievance is    that the U. P. Act makes a distinction even between butchers    who kill cattle and butchers who kill buffaloes and the Madhya Pradesh    Act also makes a like discrimination in    that slaughter of buffaloes is permitted, although under certificate, while slaughter of cows, bulls, bullocks    and calves    are totally prohibited. In    the premises    the petitioners contend that the law which permits such discrimination    must be struck down as violative of    the salutary provisions of Art. 14 of the Constitution.

The meaning, scope and effect of Art. 14, which is the equal protection clause in our Constitution, has been explained by this Court in a series of decisions in cases beginning    with Chiranjitlal Choudhury v. The Union of India (1) and ending with the recent case of Ram Krishna Dalmia and others v. Sri Justice S. R.Tendolkar (2). It is now well established that while Art. 14 forbids class legislation it does not forbid reasonable classification for the purposes of    legislation and that in order to pass the test of    permissible classi- fication two conditions must be fulfilled, namely, (i)    the classification    must    be founded on an    intelligible differentia which distinguishes persons or things that    are grouped together from others left out of the group and    (ii) such differentia must have a rational relation to the object sought    to be    achieved by the statute    in question.    The classification,    it has been    held, may be    founded    on different bases, namely, geographical, or according to objects or occupations or the like and what is necessary is that there must be    a nexus between the    basis    of' classification    and the object of the    Act under consideration.    The pronouncements of this Court further establish, amongst other things, that there is always a presumption in    favour    of the constitutionality of    an enactment and that the burden is upon him, who attacks    it, to show that    there has been a clear violation of    the constitutional principles. The courts, it is accepted, must presume    that the legislature    understands and correctly appreciates the needs of its own people, that its laws    are directed to problems made manifest by experience and    that its discriminations are based on adequate grounds. It    must be borne in mind that the legislature is free to recognise degrees    of harm and may confine its restrictions to those cases where the need is deemed to be the clearest    and finally    that in order to sustain the presumption    of constitutionality the    Court may take    into consideration matters    of common knowledge, matters of common report,    the history    of the times and may assume every state of facts which can be conceived existing at the time of    legislation. We, therefore, proceed to examine (1) [1950] S.C.R. 869.    (2) [1959] S.C.R. 279.

the impugned Acts in the light of the principles    thus enunciated by this Court.

The impugned Acts, it may be recalled, have been made by the States    in discharge of the obligations imposed on them by Art. 48. In order to implement the directive principles the respective Legislatures enacted the    impugned Acts    in exercise of the powers conferred on them by Art. 246    read with entry 15 in List II of the Seventh Schedule. It    is, therefore, quite clear that the objects sought to be achieved by the impugned Acts are    the preservation, protection and improvement of    livestocks. Cows, bulls, bullocks and calves of cows are no doubt the most important cattle for the agricultural economy of this country. Female buffaloes yield a large quantity of milk and are, therefore, well looked after and do not need as much protection as cows yielding a small quantity of milk require.    As draught cattle    male buffaloes are not half as useful as bullocks. Sheep and goat give very little milk compared to the    cows and the female buffaloes and have practically no utility as draught    animals. These different categories    of animals being susceptible of classification into separate groups on the basis of their usefulness to society, the butchers    who kill each category may also be placed in distinct classes according to the effect produced on society by the carrying on of their respective occupations. Indeed the butchers, who kill cattle, according to the    allegations of    the petitioners themselves in their respective petitions, form a well defined    class based on their    occupation.    That classification is based on an intelligible differentia which places    them in a well defined class and distinguishes    them from those who kill goats and sheep and this differentia has a close connection with the object sought to be achieved by the impugned Act, namely, the preservation, protection    and improvement of    our livestock. The attainment of these objectives may    well necessitate that the slaughterers of cattle    should    be dealt with    more stringently than    the slaughterers of, say, goats and sheep.    The impugned Acts, therefore, have adopted a classification on sound    and intelligible basis and can quite clearly stand the test laid down in the decisions of this Court. Whatever objections there    may be against the validity of the impugned Acts the -denial of equal protection of the laws does not, prima facie, appear to us to be one of them. In any case, bearing in mind    the presumption of constitutionality attaching to all enactments founded on the recognition by the court of the fact that the legislature correctly    appreciates the needs    of its    own people    there appears to be no escape from the conclusion that the petitioners have not discharged the onus that    was on them and the challenge under Art. 14 cannot, therefore, prevail.

Learned    counsel for the petitioners then take    their final stand on Art. 19(1)(g).    Immediately learned counsel for the respondents counter the charge by saying that Art. 19(1)(g) can hit only the law which purports to directly violate    its provisions. The impugned Acts, we are reminded, have    been made in implementation of the directive principles laid down in Art. 48 and are laws with respect to matters set forth in entry 15 of List II and it is emphasised that the    sole purpose of these enactments is to secure the preservation, protection and improvement of stock and that its real aim is not to take away or abridge the rights guaranteed by    Art. 19(1)(g). If at all, these enactments may only indirectly and incidentally affect those, rights but that    circumstance cannot alter their real nature and purpose.    Reliance is placed    in support of this contention on the following observations of Kania C. J. in A. K. Gopalan v. The State (1).

" If there is a legislation directly attempting to control a citizen's freedom of speech or expression, or his right to assemble peaceably and without aims,    etc., the question whether    that legislation is saved by the relevant saving clause    of article' 19 will    arise.    If, however,    the legislation is    not directly in respect of any of these subjects, but    as a result of the    operation of other legislation, for instance, for punitive or    preventive detention, his    right    under any of these sub-clauses is abridged, the question of the application of article 19 does not arise. The true approach is only to consider    the directness of the legislation and not what will (1) [1950] S.C.R. 88, 101.

be the result of the detention otherwise valid, on the    mode of the detenue's life.    "

This part of    the argument advanced    on behalf of    the respondents is further sought to be reinforced by the    fact that the above observations of Kania C. J. had    subsequently been adopted by this Court in Ram Singh v.The State of Delhi (1). Those observations of Kania C.    J. should, in our opinion, be read in the context of the facts of those cases. It should be remembered that both these cases arose out of orders    made under the Preventive Detention    Act, 1950. Article    22, which is to be found in Chapter    III of    the Constitution,    recognises the    necessity for    preventive detention, however odious it may be. The purpose of the Act under which the detention orders had been made in those cases,    was to prevent the persons concerned from acting in any manner prejudicial to one or other of the three impor- tant matters specified therein.    The effect of the execution of the orders was to deprive those persons of their liberty according to procedure established by law.    Preventive detention, like punitive detention, having taken away    the personal liberty of those persons they could not claim    the rights under Art. 19(1)(a) to (e) and (g) for those were the rights of free men. It was, therefore, considered that    the primary    and direct object of the Preventive Detention    Act, 1950, being, inter alia, to secure the security of the State and maintenance of law and    order,    its impact on    the fundamental rights was indirect and,    therefore, the    Act could not be challenged for breach of the fundamental rights under Art. 19(1). The position in the cases now before us is quite different.    The last part    of the directive principles embodied in Art. 48 require the State to    take steps for prohibiting the slaughter of the specified animals and this directive can only be carried out by    prohibiting the petitioners and other butchers (Kasais) from. slaugh- tering    them. There can be no mistake about the directness of these legislations vis-a-vis the petitioners and other butchers and the effect of these legislations on their rights    is direct and instantaneous as soon as they    are brought into force. The title of the U. P. Act (1) [1951]1 S.C.R. 451, 456-457.

does not even    attempt to conceal the    directness of    its impact    on the butchers of Uttar Pradesh. The    argument of learned counsel for the respondents on this point cannot be accepted and the question of the alleged violation of    Art. 19(1)(g) has to be dealt with on merits.

The complaint of the petitioners under Art. 19 (1) (g) is that the impugned Acts, if enforced, will compel them at once to close    down their business and will,    in effect, amount    to a complete denial of their right to carry    oil their occupation, trade or business    in spite of    the mandatory provisions of Art. 19(1)(g). The objection is elaborated thus: The    livelihood of a    butcher of cattle depends    on the existence of many factors. First he has to purchase the cattle which he will slaughter. The statistics will show that a large number of cattle are slaughtered    for food every year. According to Table 11 on p.    24 of    the Report    on the Marketing of Cattle in India 18,93,000 heads of cattle and 6,09,000 buffaloes were slaughtered in    the year 1948. Taking that 7 goats are the equivalent in flesh of cow or buffalo these butchers who    slaughter 25,02,000 bovine cattle will have to find 7 times that number of goats or sheep, that is to say, they will have to have 1,75,14,000 extra goats and sheep per year. This it is said, is    not available in -India. Then the butchers will have to    find buyers    for this enormous quantity of goats' meat or mutton the price of which, according to the figures given at    p.12 of the Expert Committee'.-, Report, is very much higher than that of beef. Poorer people may afford to buy    beef occasionally but goat-,' meat or mutton will be beyond their reach and consequently there will not be a market for    sale of the meat of so many goats and sheep and the butchers will have to reduce the number of goats and sheep for purposes of slaughter and that will reduce their income to a negligible figure.    Further, what will they do with the skins of so many goats, and sheep ? They will not have ready sale in the market    as hides of cows and buffaloes have, for the latter are used in the manufacture of boots, shoes,    suit cases, belts and other leather goods while the skins of goats    and sheep will be useless for such purpose. The same considerations will apply to the guts.    There is, therefore, no escape, say learned counsel for the petitioners from the inevitable conclusion that a total ban on the slaughter of all animals belonging to    the species    of bovine cattle will bring about a total prohibition of the business and occupation of the butchers (Kasais). Clause (6) of Art. 19, no doubt, protects    the operation of the existing laws in so far as they impose    and do not prevent the State from making any law imposing, in the interest of the general public, reasonable    restrictions on the    exercise of the right conferred by Art. 19(1)(g). But restrictions, they say,    cannot    extend    to total prohibition and reference is made to the observations to be found in some    of the decisions of    this Court.    The contention is    that the State may regulate    but cannot annihilate a business which a citizen has a right to carry on.

117. In the case of `euthanasia', however, the situation is slightly different. In these cases, it is believed, that a determination of when it would be right or fair to disallow resuscitation of a person who is incapable of expressing his or her consent to a termination of his or her life depends on two circumstances:

a. when a person is only kept alive mechanically, i.e. when not only consciousness is lost, but the person is only able to sustain involuntary functioning through advanced medical technology--such as the use of heart-lung machines, medical ventilators etc. b. when there is no plausible possibility of the person ever being able to come out of this stage. Medical "miracles" are not unknown, but if a person has been at a stage where his life is only sustained through medical technology, and there has been no significant alteration in the person's condition for a long period of time--at least a few years--then there can be a fair case made out for passive euthanasia.
To extend this further, especially when a person is incapable of being able to give any consent, would amount to committing judicial murder.

118. In this connection we may refer to the Transplantation of Human Organs Act, 1994 enacted by the Indian Parliament. Section 2(d) of the Act states :

"brain-stem death" means the stage at which all functions of the brain-stem have permanently and irreversibly ceased and is so certified under sub-section (6) of section 3:"
119. Section 3(6) of the said Act states:

"(6) Where any human organ is to be removed from the body of a person in the event of his brain-stem death, no such removal shall be undertaken unless such death is certified, in such form and in such manner and on satisfaction of such conditions and requirements as may be prescribed, by a Board of medical experts consisting of the following, namely:-

(i) the registered medical practitioner, in charge of the hospital in which brain-stem death has occurred;
(ii) an independent registered medical practitioner, being a specialist, to be nominated by the registered medical practitioner specified in clause
(i), from the panel of names approved by the Appropriate Authority;
(iii) a neurologist or a neurosurgeon to be nominated by the registered medical practitioner specified in clause (i), from the panel of names approved by the Appropriate Authority; and
(iv) the registered medical practitioner treating the person whose brain-stem death has occurred".
120. Although the above Act was only for the purpose of regulation of transplantation of human organs it throws some light on the meaning of brain death.

121. From the above angle, it cannot be said that Aruna Shanbaug is dead. Even from the report of Committee of Doctors which we have quoted above it appears that she has some brain activity, though very little.

122. She recognizes that persons are around her and expresses her like or dislike by making some vocal sound and waving her hand by certain movements. She smiles if she receives her favourite food, fish and chicken soup. She breathes normally and does not require a heart lung machine or intravenous tube for feeding. Her pulse rate and respiratory rate and blood pressure are normal. She was able to blink well and could see her doctors who examined her. When an attempt was made to feed her through mouth she accepted a spoonful of water, some sugar and mashed banana. She also licked the sugar and banana paste sticking on her upper lips and swallowed it. She would get disturbed when many people entered her room, but she appeared to calm down when she was touched or caressed gently.

123. Aruna Shanbaug meets most of the criteria for being in a permanent vegetative state which has resulted for 37 years. However, her dementia has not progressed and has remained stable for many years.

124. From the above examination by the team of doctors, it cannot be said that Aruna Shanbaug is dead. Whatever the condition of her cortex, her brain stem is certainly alive. She does not need a heart--lung machine. She breathes on her own without the help of a respirator. She digests food, and her body performs other involuntary function without any help. From the CD (which we had screened in the courtroom on 2.3.2011 in the presence of counsels and others) it appears that she can certainly not be called dead. She was making some sounds, blinking, eating food put in her mouth, and even licking with her tongue morsels on her mouth.

125. However, there appears little possibility of her coming out of PVS in which she is in. In all probability, she will continue to be in the state in which she is in till her death. The question now is whether her life support system (which is done by feeding her) should be withdrawn, and at whose instance?

WITHDRAWAL OF LIFE SUPPORT OF A PATIENT IN PERMANENT VEGETATIVE STATE (PVS)

126. There is no statutory provision in our country as to the legal procedure for withdrawing life support to a person in PVS or who is otherwise incompetent to take a decision in this connection. We agree with Mr. Andhyarujina that passive euthanasia should be permitted in our country in certain situations, and we disagree with the learned Attorney General that it should never be permitted. Hence, following the technique used in Vishakha's case (supra), we are laying down the law in this connection which will continue to be the law until Parliament makes a law on the subject.

(i) A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient.

In the present case, we have already noted that Aruna Shanbaug's parents are dead and other close relatives are not interested in her ever since she had the unfortunate assault on her. As already noted above, it is the KEM hospital staff, who have been amazingly caring for her day and night for so many long years, who really are her next friends, and not Ms. Pinky Virani who has only visited her on few occasions and written a book on her. Hence it is for the KEM hospital staff to take that decision. The KEM hospital staff have clearly expressed their wish that Aruna Shanbaug should be allowed to live.

Mr. Pallav Shisodia, learned senior counsel, appearing for the Dean, KEM Hospital, Mumbai, submitted that Ms. Pinky Virani has no locus standi in this case. In our opinion it is not necessary for us to go into this question since we are of the opinion that it is the KEM Hospital staff who is really the next friend of Aruna Shanbaug.

We do not mean to decry or disparage what Ms. Pinky Virani has done. Rather, we wish to express our appreciation of the splendid social spirit she has shown. We have seen on the internet that she has been espousing many social causes, and we hold her in high esteem. All that we wish to say is that however much her interest in Aruna Shanbaug may be it cannot match the involvement of the KEM hospital staff who have been taking care of Aruna day and night for 38 years.

However, assuming that the KEM hospital staff at some future time changes its mind, in our opinion in such a situation the KEM hospital would have to apply to the Bombay High Court for approval of the decision to withdraw life support.

(ii) Hence, even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned as laid down in Airedale's case (supra).

In our opinion, this is even more necessary in our country as we cannot rule out the possibility of mischief being done by relatives or others for inheriting the property of the patient.

127. In our opinion, if we leave it solely to the patient's relatives or to the doctors or next friend to decide whether to withdraw the life support of an incompetent person there is always a risk in our country that this may be misused by some unscrupulous persons who wish to inherit or otherwise grab the property of the patient. Considering the low ethical levels prevailing in our society today and the rampant commercialization and corruption, we cannot rule out the possibility that unscrupulous persons with the help of some unscrupulous doctors may fabricate material to show that it is a terminal case with no chance of recovery. There are doctors and doctors. While many doctors are upright, there are others who can do anything for money (see George Bernard Shaw's play `The Doctors Dilemma'). The commercialization of our society has crossed all limits. Hence we have to guard against the potential of misuse (see Robin Cook's novel `Coma'). In our opinion, while giving great weight to the wishes of the parents, spouse, or other close relatives or next friend of the incompetent patient and also giving due weight to the opinion of the attending doctors, we cannot leave it entirely to their discretion whether to discontinue the life support or not. We agree with the decision of the Lord Keith in Airedale's case (supra) that the approval of the High Court should be taken in this connection. This is in the interest of the protection of the patient, protection of the doctors, relative and next friend, and for reassurance of the patient's family as well as the public. This is also in consonance with the doctrine of parens patriae which is a well known principle of law. DOCTRINE OF PARENS PATRIAE

128. The doctrine of Parens Patriae (father of the country) had originated in British law as early as the 13th century. It implies that the King is the father of the country and is under obligation to look after the interest of those who are unable to look after themselves. The idea behind Parens Patriae is that if a citizen is in need of someone who can act as a parent who can make decisions and take some other action, sometimes the State is best qualified to take on this role.

129. In the Constitution Bench decision of this Court in Charan Lal Sahu vs. Union of India (1990) 1 SCC 613 (vide paras 35 and 36), the doctrine has been explained in some details as follows :

"In the "Words and Phrases" Permanent Edition, Vol. 33 at page 99, it is stated that parens patriae is the inherent power and authority of a legislature to provide protection to the person and property of persons non sui juris, such as minor, insane, and incompetent persons, but the words parens patriae meaning thereby `the father of the country', were applied originally to the King and are used to designate the State referring to its sovereign power of guardianship over persons under disability. Parens patriae jurisdiction, it has been explained, is the right of the sovereign and imposes a duty on the sovereign, in public interest, to protect persons under disability who have no rightful protector. The connotation of the term parens patriae differs from country to country, for instance, in England it is the King, in America it is the people, etc. The government is within its duty to protect and to control persons under disability".
The duty of the King in feudal times to act as parens patriae (father of the country) has been taken over in modern times by the State.

130. In Heller vs. DOE (509) US 312 Mr. Justice Kennedy speaking for the U.S. Supreme Court observed :

"the State has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable to care for themselves".
131. In State of Kerala vs. N.M. Thomas, 1976(1) SCR 906 (at page 951) Mr. Justice Mathew observed :

" The Court also is `state' within the meaning of Article 12 (of the Constitution).".

132. In our opinion, in the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, it is the Court alone, as parens patriae, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight.

UNDER WHICH PROVISION OF THE LAW CAN THE COURT GRANT APPROVAL FOR WITHDRAWING LIFE SUPPORT TO AN INCOMPETENT PERSON

133. In our opinion, it is the High Court under Article 226 of the Constitution which can grant approval for withdrawal of life support to such an incompetent person. Article 226(1) of the Constitution states :

"Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose".
134. A bare perusal of the above provisions shows that the High Court under Article 226 of the Constitution is not only entitled to issue writs, but is also entitled to issue directions or orders.

135. In Dwarka Nath vs. ITO AIR 1966 SC 81(vide paragraph 4) this Court observed :

"This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Art. 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure."
136. The above decision has been followed by this Court in Shri Anadi Mukta Sadguru vs. V. R. Rudani AIR 1989 SC 1607 (vide para 18).

137. No doubt, the ordinary practice in our High Courts since the time of framing of the Constitution in 1950 is that petitions filed under Article 226 of the Constitution pray for a writ of the kind referred to in the provision. However, from the very language of the Article 226, and as explained by the above decisions, a petition can also be made to the High Court under Article 226 of the Constitution praying for an order or direction, and not for any writ. Hence, in our opinion, Article 226 gives abundant power to the High Court to pass suitable orders on the application filed by the near relatives or next friend or the doctors/hospital staff praying for permission to withdraw the life support to an incompetent person of the kind above mentioned. PROCEDURE TO BE ADOPTED BY THE HIGH COURT WHEN SUCH AN APPLICATION IS FILED

138. When such an application is filed the Chief Justice of the High Court should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not. Before doing so the Bench should seek the opinion of a committee of three reputed doctors to be nominated by the Bench after consulting such medical authorities/medical practitioners as it may deem fit. Preferably one of the three doctors should be a neurologist, one should be a psychiatrist, and the third a physician. For this purpose a panel of doctors in every city may be prepared by the High Court in consultation with the State Government/Union Territory and their fees for this purpose may be fixed.

139. The committee of three doctors nominated by the Bench should carefully examine the patient and also consult the record of the patient as well as taking the views of the hospital staff and submit its report to the High Court Bench.

140. Simultaneously with appointing the committee of doctors, the High Court Bench shall also issue notice to the State and close relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their absence his/her next friend, and supply a copy of the report of the doctor's committee to them as soon as it is available. After hearing them, the High Court bench should give its verdict. The above procedure should be followed all over India until Parliament makes legislation on this subject.

141. The High Court should give its decision speedily at the earliest, since delay in the matter may result in causing great mental agony to the relatives and persons close to the patient.

142. The High Court should give its decision assigning specific reasons in accordance with the principle of `best interest of the patient' laid down by the House of Lords in Airedale's case (supra). The views of the near relatives and committee of doctors should be given due weight by the High Court before pronouncing a final verdict which shall not be summary in nature.

143. With these observations, this petition is dismissed.

144. Before parting with the case, we would like to express our gratitude to Mr. Shekhar Naphade, learned senior counsel for the petitioner, assisted by Ms. Shubhangi Tuli, Ms. Divya Jain and Mr. Vimal Chandra S. Dave, advocates, the learned Attorney General for India Mr. G. E. Vahanvati, assisted by Mr. Chinmoy P. Sharma, advocate, Mr. T. R. Andhyarujina, learned Senior Counsel, whom we had appointed as amicus curiae assisted by Mr. Soumik Ghoshal, advocate, Mr. Pallav Shishodia, learned senior counsel, assisted by Ms. Sunaina Dutta and Mrs. Suchitra Atul Chitale, advocates for the KEM Hospital, Mumbai and Mr. Chinmoy Khaldkar, counsel for the State of Maharashtra, assisted by Mr. Sanjay V. Kharde and Ms. Asha Gopalan Nair, advocates, who were of great assistance to us. We wish to express our appreciation of Mr. Manav Kapur, Advocate, who is Law-Clerk-cum-Research Assistant of one of us (Katju, J.) as well as Ms. Neha Purohit, Advocate, who is Law-Clerk-cum-Research Assistant of Hon'ble Justice Gyan Sudha Mishra. We also wish to mention the names of Mr. Nithyaesh Nataraj and Mr. Vaibhav Rangarajan, final year law students in the School of Excellence, Dr. B.R. Ambedkar Law University, Chennai, who were the interns of one of us (Katju, J.) and who were of great help in doing research in this case.

145. We wish to commend the team of doctors of Mumbai who helped us viz. Dr. J. V. Divatia, Professor and Head, Department of Anesthesia, Critical Care and Pain at Tata Memorial Hospital, Mumbai; Dr. Roop Gursahani, Consultant Neurologist at P.D. Hinduja, Mumbai; and Dr. Nilesh Shah, Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation Medical College and General Hospital. They did an excellent job.

146. We also wish to express our appreciation of Ms. Pinki Virani who filed this petition. Although we have dismissed the petition for the reasons given above, we regard her as a public spirited person who filed the petition for a cause she bona fide regarded as correct and ethical. We hold her in high esteem.

147. We also commend the entire staff of KEM Hospital, Mumbai (including the retired staff) for their noble spirit and outstanding, exemplary and unprecedented dedication in taking care of Aruna for so many long years. Every Indian is proud of them.

...................................J.

(Markandey Katju) ..................................J.

(Gyan Sudha Misra) New Delhi:

March 07, 2011

60. The broad issued raised before the House of Lords in the Airedale case (supra) was "In what circumstances, if ever, can those having a duty to feed an invalid lawfully stop doing so?" In fact this is precisely the question raised in the present case of Aruna Shanbaug before us.

61. In Airedale's case (supra), Lord Keith of Kinkel, noted that it was unlawful to administer treatment to an adult who is conscious and of sound mind, without his consent. Such a person is completely at liberty to decline to undergo treatment, even if the result of his doing so will be that he will die. This extends to the situation where the person in anticipation of his entering into a condition such as PVS, gives clear instructions that in such an event he is not to be given medical care, including artificial feeding, designed to keep him alive.

62. It was held that if a person, due to accident or some other cause becomes unconscious and is thus not able to give or withhold consent to medical treatment, in that situation it is lawful for medical men to apply such treatment as in their informed opinion is in the best interests of the unconscious patient. That is what happened in the case of Anthony Bland when he was first dealt with by the emergency services and later taken to hospital.

63. When the incident happened the first imperative was to prevent Anthony from dying, as he would certainly have done in the absence of the steps that were taken. For a time, no doubt, there was some hope that he might recover sufficiently for him to be able to live a life that had some meaning. Some patients who have suffered damage to the cerebral cortex have, indeed, made a complete recovery. It all depends on the degree of damage. But sound medical opinion takes the view that if a P.V.S. patient shows no signs of recovery after six months, or at most a year, then there is no prospect whatever of any recovery.

64. There are techniques available which make it possible to ascertain the state of the cerebral cortex, and in Anthony Bland's case these indicated that, it had degenerated into a mass of watery fluid. In this situation the question before the House of Lords was whether the doctors could withdraw medical treatment or feeding Anthony Bland thus allowing him to die.

65. It was held by Lord Keith that a medical practitioner is under no duty to continue to treat such a patient where a large body of informed and responsible medical opinion is to the effect that no benefit at all would be conferred by continuance of the treatment. Existence in a vegetative state with no prospect of recovery is by that opinion regarded as not being of benefit to the patient.

66. Given that existence in the persistent vegetative state is of no benefit to the patient, the House of Lords then considered whether the principle of the sanctity of life which is the concern of the State (and the Judiciary is one of the arms of the State) required the Court to hold that medical treatment to Bland could not be discontinued.

67. Lord Keith observed that the principle of sanctity of life is not an absolute one. For instance, it does not compel the medical practitioner on pain of criminal sanction to treat a patient, who will die, if he does not, according to the express wish of the patient. It does not authorize forcible feeding of prisoners on hunger strike. It does not compel the temporary keeping alive of patients who are terminally ill where to do so would merely prolong their suffering. On the other hand, it forbids the taking of active measures to cut short the life of a terminally-ill patient (unless there is legislation which permits it).

68. Lord Keith observed that although the decision whether or not the continued treatment and cure of a PVS patient confers any benefit on him is essentially one for the medical practitioners in charge of his case to decide, as a matter of routine the hospital/medical practitioner should apply to the Family Division of the High Court for endorsing or reversing the said decision. This is in the interest of the protection of the patient, protection of the doctors, and for the reassurance of the patient's family and the public.

69. In Airdale's case (Supra) another Judge on the Bench, Lord Goff of Chievely observed:-

"The central issue in the present case has been aptly stated by the Master of the Rolls to be whether artificial feeding and antibiotic drugs may lawfully be withheld from an insensate patient with no hope of recovery when it is known that if that is done the patient will shortly thereafter die. The Court of Appeal, like the President, answered this question generally in the affirmative, and (in the declarations made or approved by them) specifically also in the affirmative in relation to Anthony Bland . I find myself to be in agreement with the conclusions so reached by all the judges below, substantially for the reasons given by them. But the matter is of such importance that I propose to express my reasons in my own words.
I start with the simple fact that, in law, Anthony is still alive. It is true that his condition is such that it can be described as a living death; but he is nevertheless still alive. This is because, as a result of developments in modern medical technology, doctors no longer associate death exclusively with breathing and heart beat, and it has come to be accepted that death occurs when the brain, and in particular the brain stem, has been destroyed (see Professor Ian Kennedy's Paper entitled "Switching off Life Support Machines: The Legal Implications" reprinted in Treat Me Right, Essays in Medical Law and Ethics, (1988)), especially at pp. 351-2, and the material there cited). There has been no dispute on this point in the present case, and it is unnecessary for me to consider it further. The evidence is that Anthony's brain stem is still alive and functioning and it follows that, in the present state of medical science, he is still alive and should be so regarded as a matter of law.
It is on this basis that I turn to the applicable principles of law. Here, the fundamental principle is the principle of the sanctity of human life - a principle long recognized not only in our own society but also in most, if not all, civilized societies throughout the modern world, as is indeed evidenced by its recognition both in article 2 of the European Convention of Human Rights, and in article 6 of the International Covenant of Civil and Political Rights.

But this principle, fundamental though it is, is not absolute. Indeed there are circumstances in which it is lawful to take another man's life, for example by a lawful act of self-defence, or (in the days when capital punishment was acceptable in our society) by lawful execution. We are not however concerned with cases such as these. We are concerned with circumstances in which it may be lawful to withhold from a patient medical treatment or care by means of which his life may be prolonged. But here too there is no absolute rule that the patient's life must be prolonged by such treatment or care, if available, regardless of the circumstances. First, it is established that the principle of self- determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so (see Schloendorff v . Society of New York Hospital 105 N.E. 92, 93, per Cardozo J. (1914); S. v . McC. (Orse S.) and M (D.S. Intervene); W v . W [1972] A.C. 24, 43, per Lord Reid; and Sidaway v . Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871, 882, per Lord Scarman). To this extent, the principle of the sanctity of human life must yield to the principle of self- determination (see Court of Appeal Transcript in the present case, at p. 38F per Hoffmann L.J.), and, for present purposes perhaps more important, the doctor's duty to act in the best interests of his patient must likewise be qualified. On this basis, it has been held that a patient of sound mind may, if properly informed, require that life support should be discontinued: see Nancy B. v. Hotel Dieu de Quebec (1992) 86 D.L.R. (4th) 385. Moreover the same principle applies where the patient's refusal to give his consent has been expressed at an earlier date, before he became unconscious or otherwise incapable of communicating it; though in such circumstances especial care may be necessary to ensure that the prior refusal of consent is still properly to be regarded as applicable in the circumstances which have subsequently occurred (see, e.g. In re T. (Adult: Refusal of treatment) [1992] 3 W.L.R. 782). I wish to add that, in cases of this kind, there is no question of the patient having committed suicide, nor therefore of the doctor having aided or abetted him in doing so. It is simply that the patient has, as he is entitled to do, declined to consent to treatment which might or would have the effect of prolonging his life, and the doctor has, in accordance with his duty, complied with his patient's wishes. But in many cases not only may the patient be in no condition to be able to say whether or not he consents to the relevant treatment or care, but also he may have given no prior indication of his wishes with regard to it. In the case of a child who is a ward of court, the court itself will decide whether medical treatment should be provided in the child's best interests, taking into account medical opinion. But the court cannot give its consent on behalf of an adult patient who is incapable of himself deciding whether or not to consent to treatment. I am of the opinion that there is nevertheless no absolute obligation upon the doctor who has the patient in his care to prolong his life, regardless of the circumstances. Indeed, it would be most startling, and could lead to the most adverse and cruel effects upon the patient, if any such absolute rule were held to exist. It is scarcely consistent with the primacy given to the principle of self-determination in those cases in which the patient of sound mind has declined to give his consent, that the law should provide no means of enabling treatment to be withheld in appropriate circumstances where the patient is in no condition to indicate, if that was his wish, that he did not consent to it. The point was put forcibly in the judgment of the Supreme Judicial Court of Massachusetts in Superintendent of Belchertown State School v. Saikewicz (1977) 370 N.E. 2d. 417, 428, as follows: "To presume that the incompetent person must always be subjected to what many rational and intelligent persons may decline is to downgrade the status of the incompetent person by placing a lesser value on his intrinsic human worth and vitality."

I must however stress, at this point, that the law draws a crucial distinction between cases in which a doctor decides not to provide, or to continue to provide, for his patient treatment or care which could or might prolong his life, and those in which he decides, for example by administering a lethal drug, actively to bring his patient's life to an end. As I have already indicated, the former may be lawful, either because the doctor is giving effect to his patient's wishes by withholding the treatment or care, or even in certain circumstances in which (on principles which I shall describe) the patient is incapacitated from stating whether or not he gives his consent. But it is not lawful for a doctor to administer a drug to his patient to bring about his death, even though that course is prompted by a humanitarian desire to end his suffering, however great that suffering may be: see Reg. v. Cox (Unreported), Ognall J., Winchester Crown Court, 18 September 1992. So to act is to cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia - actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at common law. It is of course well known that there are many responsible members of our society who believe that euthanasia should be made lawful; but that result could, I believe, only be achieved by legislation which expresses the democratic will that so fundamental a change should be made in our law, and can, if enacted, ensure that such legalised killing can only be carried out subject to appropriate supervision and control. It is true that the drawing of this distinction may lead to a charge of hypocrisy; because it can be asked why, if the doctor, by discontinuing treatment, is entitled in consequence to let his patient die, it should not be lawful to put him out of his misery straight away, in a more humane manner, by a lethal injection, rather than let him linger on in pain until he dies. But the law does not feel able to authorize euthanasia, even in circumstances such as these; for once euthanasia is recognized as lawful in these circumstances, it is difficult to see any logical basis for excluding it in others. At the heart of this distinction lies a theoretical question. Why is it that the doctor who gives his patient a lethal injection which kills him commits an unlawful act and indeed is guilty of murder, whereas a doctor who, by discontinuing life support, allows his patient to die, may not act unlawfully - and will not do so, if he commits no breach of duty to his patient? Professor Glanville Williams has suggested (see his Textbook of Criminal Law, 2nd ed., p. 282) that the reason is that what the doctor does when he switches off a life support machine 'is in substance not an act but an omission to struggle, and that 'the omission is not a breach of duty by the doctor because he is not obliged to continue in a hopeless case'.

I agree that the doctor's conduct in discontinuing life support can properly be categorized as an omission. It is true that it may be difficult to describe what the doctor actually does as an omission, for example where he takes some positive step to bring the life support to an end. But discontinuation of life support is, for present purposes, no different from not initiating life support in the first place. In each case, the doctor is simply allowing his patient to die in the sense that he is desisting from taking a step which might, in certain circumstances, prevent his patient from dying as a result of his pre-existing condition; and as a matter of general principle an omission such as this will not be unlawful unless it constitutes a breach of duty to the patient. I also agree that the doctor's conduct is to be differentiated from that of, for example, an interloper who maliciously switches off a life support machine because, although the interloper may perform exactly the same act as the doctor who discontinues life support, his doing so constitutes interference with the life-prolonging treatment then being administered by the doctor. Accordingly, whereas the doctor, in discontinuing life support, is simply allowing his patient to die of his pre- existing condition, the interloper is actively intervening to stop the doctor from prolonging the patient's life, and such conduct cannot possibly be categorised as an omission.

The distinction appears, therefore, to be useful in the present context in that it can be invoked to explain how discontinuance of life support can be differentiated from ending a patient's life by a lethal injection. But in the end the reason for that difference is that, whereas the law considers that discontinuance of life support may be consistent with the doctor's duty to care for his patient, it does not, for reasons of policy, consider that it forms any part of his duty to give his patient a lethal injection to put him out of his agony.

I return to the patient who, because for example he is of unsound mind or has been rendered unconscious by accident or by illness, is incapable of stating whether or not he consents to treatment or care. In such circumstances, it is now established that a doctor may lawfully treat such a patient if he acts in his best interests, and indeed that, if the patient is already in his care, he is under a duty so to treat him: see In re F [1990] 2 AC 1, in which the legal principles governing treatment in such circumstances were stated by this House. For my part I can see no reason why, as a matter of principle, a decision by a doctor whether or not to initiate, or to continue to provide, treatment or care which could or might have the effect of prolonging such a patient's life, should not be governed by the same fundamental principle. Of course, in the great majority of cases, the best interests of the patient are likely to require that treatment of this kind, if available, should be given to a patient. But this may not always be so. To take a simple example given by Thomas J. in Re J.H.L. (Unreported) (High Court of New Zealand) 13 August 1992, at p. 35), to whose judgment in that case I wish to pay tribute, it cannot be right that a doctor, who has under his care a patient suffering painfully from terminal cancer, should be under an absolute obligation to perform upon him major surgery to abate another condition which, if unabated, would or might shorten his life still further. The doctor who is caring for such a patient cannot, in my opinion, be under an absolute obligation to prolong his life by any means available to him, regardless of the quality of the patient's life. Common humanity requires otherwise, as do medical ethics and good medical practice accepted in this country and overseas. As I see it, the doctor's decision whether or not to take any such step must (subject to his patient's ability to give or withhold his consent) be made in the best interests of the patient. It is this principle too which, in my opinion, underlies the established rule that a doctor may, when caring for a patient who is, for example, dying of cancer, lawfully administer painkilling drugs despite the fact that he knows that an incidental effect of that application will be to abbreviate the patient's life. Such a decision may properly be made as part of the care of the living patient, in his best interests; and, on this basis, the treatment will be lawful. Moreover, where the doctor's treatment of his patient is lawful, the patient's death will be regarded in law as exclusively caused by the injury or disease to which his condition is attributable.

It is of course the development of modern medical technology, and in particular the development of life support systems, which has rendered cases such as the present so much more relevant than in the past. Even so, where (for example) a patient is brought into hospital in such a condition that, without the benefit of a life support system, he will not continue to live, the decision has to be made whether or not to give him that benefit, if available. That decision can only be made in the best interests of the patient. No doubt, his best interests will ordinarily require that he should be placed on a life support system as soon as necessary, if only to make an accurate assessment of his condition and a prognosis for the future. But if he neither recovers sufficiently to be taken off it nor dies, the question will ultimately arise whether he should be kept on it indefinitely. As I see it, that question (assuming the continued availability of the system) can only be answered by reference to the best interests of the patient himself, having regard to established medical practice. Indeed, if the justification for treating a patient who lacks the capacity to consent lies in the fact that the treatment is provided in his best interests, it must follow that the treatment may, and indeed ultimately should, be discontinued where it is no longer in his best interests to provide it. The question which lies at the heart of the present case is, as I see it, whether on that principle the doctors responsible for the treatment and care of Anthony Bland can justifiably discontinue the process of artificial feeding upon which the prolongation of his life depends.

It is crucial for the understanding of this question that the question itself should be correctly formulated. The question is not whether the doctor should take a course which will kill his patient, or even take a course which has the effect of accelerating his death. The question is whether the doctor should or should not continue to provide his patient with medical treatment or care which, if continued, will prolong his patient's life. The question is sometimes put in striking or emotional terms, which can be misleading. For example, in the case of a life support system, it is sometimes asked: Should a doctor be entitled to switch it off, or to pull the plug? And then it is asked: Can it be in the best interests of the patient that a doctor should be able to switch the life support system off, when this will inevitably result in the patient's death? Such an approach has rightly been criticised as misleading, for example by Professor Ian Kennedy (in his paper in Treat Me Right, Essays in Medical Law and Ethics (1988), and by Thomas J. in Re J.H.L. at pp. 21-

22. This is because the question is not whether it is in the best interests of the patient that he should die. The question is whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment or care.

The correct formulation of the question is of particular importance in a case such as the present, where the patient is totally unconscious and where there is no hope whatsoever of any amelioration of his condition. In circumstances such as these, it may be difficult to say that it is in his best interests that the treatment should be ended. But if the question is asked, as in my opinion it should be, whether it is in his best interests that treatment which has the effect of artificially prolonging his life should be continued, that question can sensibly be answered to the effect that it is not in his best interests to do so.

(emphasis supplied)

70. In a Discussion Paper on Treatment of Patients in Persistent Vegetative State issued in September 1992 by the Medical Ethics Committee of the British Medical Association certain safeguards were mentioned which should be observed before constituting life support for such patients:-

"(1) Every effort should be made at rehabilitation for at least six months after the injury; (2) The diagnosis of irreversible PVS should not be considered confirmed until at least twelve months after the injury, with the effect that any decision to withhold life prolonging treatment will be delayed for that period; (3) The diagnosis should be agreed by two other independent doctors; and (4) Generally, the wishes of the patient's immediate family will be given great weight."
71. Lord Goff observed that discontinuance of artificial feeding in such cases is not equivalent to cutting a mountaineer's rope, or severing the air pipe of a deep sea diver. The true question is not whether the doctor should take a course in which he will actively kill his patient, but rather whether he should continue to provide his patient with medical treatment or care which, if continued, will prolong his life.

72. Lord Browne-Wilkinson was of the view that removing the nasogastric tube in the case of Anthony Bland cannot be regarded as a positive act causing the death. The tube itself, without the food being supplied through it, does nothing. Its non removal itself does not cause the death since by itself, it does not sustain life. Hence removal of the tube would not constitute the actus reus of murder, since such an act would not cause the death.

73. Lord Mustill observed:-

"Threaded through the technical arguments addressed to the House were the strands of a much wider position, that it is in the best interests of the community at large that Anthony Bland's life should now end. The doctors have done all they can. Nothing will be gained by going on and much will be lost. The distress of the family will get steadily worse. The strain on the devotion of a medical staff charged with the care of a patient whose condition will never improve, who may live for years and who does not even recognize that he is being cared for, will continue to mount. The large resources of skill, labour and money now being devoted to Anthony Bland might in the opinion of many be more fruitfully employed in improving the condition of other patients, who if treated may have useful, healthy and enjoyable lives for years to come."
74. Thus all the Judges of the House of Lords in the Airedale case (supra) were agreed that Anthony Bland should be allowed to die.

75. Airedale (1993) decided by the House of Lords has been followed in a number of cases in U.K., and the law is now fairly well settled that in the case of incompetent patients, if the doctors act on the basis of informed medical opinion, and withdraw the artificial life support system if it is in the patient's best interest, the said act cannot be regarded as a crime.

76. The question, however, remains as to who is to decide what is the patient's best interest where he is in a persistent vegetative state (PVS)? Most decisions have held that the decision of the parents, spouse, or other close relative, should carry weight if it is an informed one, but it is not decisive (several of these decisions have been referred to in Chapter IV of the 196th Report of the Law Commission of India on Medical Treatment to Terminally ill Patients).

77. It is ultimately for the Court to decide, as parens patriae, as to what is is in the best interest of the patient, though the wishes of close relatives and next friend, and opinion of medical practitioners should be given due weight in coming to its decision. As stated by Balcombe, J. in In Re J ( A Minor Wardship : Medical Treatment) 1990(3) All E.R. 930, the Court as representative of the Sovereign as parens patriae will adopt the same standard which a reasonable and responsible parent would do.

78. The parens patriae (father of the country) jurisdiction was the jurisdiction of the Crown, which, as stated in Airedale, could be traced to the 13th Century. This principle laid down that as the Sovereign it was the duty of the King to protect the person and property of those who were unable to protect themselves. The Court, as a wing of the State, has inherited the parens patriae jurisdiction which formerly belonged to the King. U.S. decisions

79. The two most significant cases of the U.S. Supreme Court that addressed the issue whether there was a federal constitutional right to assisted suicide arose from challenges to State laws banning physician assisted suicide brought by terminally ill patients and their physicians. These were Washington vs. Glucksberg 521 U.S. 702 (1997) and Vacco vs. Quill 521 U.S. 793 (1997).

80. In Glucksberg's case, the U.S. Supreme Court held that the asserted right to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment. The Court observed :

"The decision to commit suicide with the assistance of another may be just as personal and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection. Indeed the two acts are widely and reasonably regarded as quite distinct."
81. The Court went on to conclude that the Washington statute being challenged was rationally related to five legitimate government interest : protection of life, prevention of suicide, protection of ethical integrity of the medical profession, protection of vulnerable groups, and protection against the "slippery slope" towards euthanasia. The Court then noted that perhaps the individual States were more suited to resolving or at least addressing the myriad concerns raised by both proponents and opponents of physician assisted suicide. The Court observed :

"Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician assisted suicide. Our holding permits this debate to continue, as it should in a democratic society."
82. In Vacco's case (supra) the U.S. Supreme Court again recognized the distinction between refusing life saving medical treatment and giving lethal medication. The Court disagreed with the view of the Second Circuit Federal Court that ending or refusing lifesaving medical treatment is nothing more nor less than assisted suicide. The Court held that "the distinction between letting a patient die and making that patient die is important, logical, rational, and well established". The Court held that the State of New York could validly ban the latter.

83. In Cruzan v. Director, MDH, 497 U.S. 261(1990) decided by the U.S. Supreme Court the majority opinion was delivered by the Chief Justice Rehnquist.

84. In that case, the petitioner Nancy Cruzan sustained injuries in an automobile accident and lay in a Missouri State hospital in what has been referred to as a persistent vegetative state (PVS), a condition in which a person exhibits motor reflexes but evinces no indication of significant cognitive function. The state of Missouri was bearing the cost of her care. Her parents and co-guardians applied to the Court for permission to withdraw her artificial feeding and hydration equipment and allow her to die. While the trial Court granted the prayer, the State Supreme Court of Missouri reversed, holding that under a statute in the State of Missouri it was necessary to prove by clear and convincing evidence that the incompetent person had wanted, while competent, withdrawal of life support treatment in such an eventuality. The only evidence led on that point was the alleged statement of Nancy Cruzan to a housemate about a year before the accident that she did not want life as a `vegetable'. The State Supreme Court was of the view that this did not amount to saying that medical treatment or nutrition or hydration should be withdrawn.

85. Chief Justice Rehnquist delivering the opinion of the Court (in which Justices White, O'Connor, Scalia, and Kennedy, joined) in his judgment first noted the facts:-

"On the night of January 11, 1983, Nancy Cruzan lost control of her car as she traveled down Elm Road in Jasper County, Missouri. The vehicle overturned, and Cruzan was discovered lying face down in a ditch without detectable respiratory or cardiac function. Paramedics were able to restore her breathing and heartbeat at the accident site, and she was transported to a hospital in an unconscious state. An attending neurosurgeon diagnosed her as having sustained probable cerebral contusions compounded by significant anoxia (lack of oxygen). The Missouri trial court in this case found that permanent brain damage generally results after 6 minutes in an anoxic state; it was estimated that Cruzan was deprived of oxygen from 12 to 14 minutes. She remained in a coma for approximately three weeks, and then progressed to an unconscious state in which she was able to orally ingest some nutrition. In order to ease feeding and further the recovery, surgeons implanted a gastrostomy feeding and hydration tube in Cruzan with the consent of her then husband. Subsequent rehabilitative efforts proved unavailing. She now lies in a Missouri state hospital in what is commonly referred to as a persistent vegetative state: generally, a condition in which a person exhibits motor reflexes but evinces no indications of significant cognitive function. 1 The State of Missouri is bearing the cost of her care. [497 U.S. 261, 267] After it had become apparent that Nancy Cruzan had virtually no chance of regaining her mental faculties, her parents asked hospital employees to terminate the artificial nutrition and hydration procedures. All agree that such a [497 U.S. 261, 268] removal would cause her death. The employees refused to honor the request without court approval. The parents then sought and received authorization from the state trial court for termination."
86. While the trial Court allowed the petition the State Supreme Court of Missouri reversed. The US Supreme Court by majority affirmed the verdict of the State Supreme Court

87. Chief Justice Rehnquist noted that in law even touching of one person by another without consent and without legal justification was a battery, and hence illegal. The notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment. As observed by Justice Cardozo, while on the Court of Appeals of New York "Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages." vide Schloendorff vs. Society of New York Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914). Thus the informed consent doctrine has become firmly entrenched in American Tort Law. The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is to refuse treatment.

88. The question, however, arises in cases where the patient is unable to decide whether the treatment should continue or not e.g. if he is in coma or PVS. Who is to give consent to terminate the treatment in such a case? The learned Chief Justice referred to a large number of decisions of Courts in U.S.A. in this connection, often taking diverse approaches.

89. In re Quinlan 70 N.J.10, 355 A. 2d 647, Karen Quinlan suffered severe brain damage as a result of anoxia, and entered into PVS. Her father sought judicial approval to disconnect her respirator. The New Jersey Supreme Court granted the prayer, holding that Karen had a right of privacy grounded in the U.S. Constitution to terminate treatment. The Court concluded that the way Karen's right to privacy could be exercised would be to allow her guardian and family to decide whether she would exercise it in the circumstances.

90. In re Conroy 98 NJ 321, 486 A.2d 1209 (1985), however, the New Jersey Supreme Court, in a case of an 84 year old incompetent nursing home resident who had suffered irreversible mental and physical ailments, contrary to its decision in Quinlan's case, decided to base its decision on the common law right to self determination and informed consent. This right can be exercised by a surrogate decision maker when there was a clear evidence that the incompetent person would have exercised it. Where such evidence was lacking the Court held that an individual's right could still be invoked in certain circumstances under objective `best interest' standards. Where no trustworthy evidence existed that the individual would have wanted to terminate treatment, and a person's suffering would make the administration of life sustaining treatment inhumane, a pure objective standard could be used to terminate the treatment. If none of these conditions obtained, it was best to err in favour of preserving life.

91. What is important to note in Cruzan's case (supra) is that there was a statute of the State of Missouri, unlike in Airedale's case (where there was none), which required clear and convincing evidence that while the patient was competent she had desired that if she becomes incompetent and in a PVS her life support should be withdrawn.

92. In Cruzan's case (supra) the learned Chief Justice observed :

"Not all incompetent patients will have loved ones available to serve as surrogate decision makers. And even where family members are present, there will be, of course, some unfortunate situations in which family members will not act to protect a patient. A State is entitled to guard against potential abuses in such situations."
93. The learned Chief Justice further observed :

"An erroneous decision not to terminate results in maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient's intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment, at least create the potential that a wrong decision will eventually be corrected or its impact mitigated. An erroneous decision to withdraw life-sustaining treatment, however, is not susceptible of correction."
94. No doubt Mr. Justice Brennan (with whom Justices Marshall and Blackmun joined) wrote a powerful dissenting opinion, but it is not necessary for us to go into the question whether the view of the learned Chief Justice or that of Justice Brennan, is correct.

95. It may be clarified that foreign decisions have only persuasive value in our country, and are not binding authorities on our Courts. Hence we can even prefer to follow the minority view, rather than the majority view, of a foreign decision, or follow an overruled foreign decision.

96. Cruzan's case (supra) can be distinguished on the simple ground that there was a statute in the State of Missouri, whereas there was none in the Airedale's case nor in the present case before us. We are, therefore, of the opinion that the Airedale's case (supra) is more apposite as a precedent for us. No doubt foreign decisions are not binding on us, but they certainly have persuasive value.

LAW IN INDIA

97. In India abetment of suicide (Section 306 Indian Penal Code) and attempt to suicide (Section 309 of Indian Penal Code) are both criminal offences. This is in contrast to many countries such as USA where attempt to suicide is not a crime.

98. The Constitution Bench of the Indian Supreme Court in Gian Kaur vs. State of Punjab, 1996(2) SCC 648 held that both euthanasia and assisted suicide are not lawful in India. That decision overruled the earlier two Judge Bench decision of the Supreme Court in P. Rathinam vs. Union of India, 1994(3) SCC 394. The Court held that the right to life under Article 21 of the Constitution does not include the right to die (vide para 33). In Gian Kaur's case (supra) the Supreme Court approved of the decision of the House of Lords in Airedale's case (supra), and observed that euthanasia could be made lawful only by legislation.

99. Sections 306 and 309 IPC read as under :

"306. Abetment of suicide - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
309. Attempt to commit suicide - Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both."
100. We are of the opinion that although Section 309 Indian Penal Code (attempt to commit suicide) has been held to be constitutionally valid in Gian Kaur's case (supra), the time has come when it should be deleted by Parliament as it has become anachronistic. A person attempts suicide in a depression, and hence he needs help, rather than punishment. We therefore recommend to Parliament to consider the feasibility of deleting Section 309 from the Indian Penal Code.

101. It may be noted that in Gian Kaur's case (supra) although the Supreme Court has quoted with approval the view of the House of Lords in Airedale's case (supra), it has not clarified who can decide whether life support should be discontinued in the case of an incompetent person e.g. a person in coma or PVS. This vexed question has been arising often in India because there are a large number of cases where persons go into coma (due to an accident or some other reason) or for some other reason are unable to give consent, and then the question arises as to who should give consent for withdrawal of life support.

102. This is an extremely important question in India because of the unfortunate low level of ethical standards to which our society has descended, its raw and widespread commercialization, and the rampant corruption, and hence, the Court has to be very cautious that unscrupulous persons who wish to inherit the property of someone may not get him eliminated by some crooked method.

103. Also, since medical science is advancing fast, doctors must not declare a patient to be a hopeless case unless there appears to be no reasonable possibility of any improvement by some newly discovered medical method in the near future. In this connection we may refer to a recent news item which we have come across on the internet of an Arkansas man Terry Wallis, who was 19 years of age and newly married with a baby daughter when in 1984 his truck plunged through a guard rail, falling 25 feet. He went into coma in the crash in 1984, but after 24 years he has regained consciousness. This was perhaps because his brain spontaneously rewired itself by growing tiny new nerve connections to replace the ones sheared apart in the car crash. Probably the nerve fibers from Terry Wallis' cells were severed but the cells themselves remained intact, unlike Terri Schiavo, whose brain cells had died (see Terri Schiavo's case on Google).

104. However, we make it clear that it is experts like medical practitioners who can decide whether there is any reasonable possibility of a new medical discovery which could enable such a patient to revive in the near future. WHEN CAN A PERSON IS SAID TO BE DEAD

105. It is alleged in the writ petition filed by Ms. Pinky Virani (claiming to be the next friend of Aruna Shanbaug) that in fact Aruna Shanbaug is already dead and hence by not feeding her body any more we shall not be killing her. The question hence arises as to when a person can be said to be dead ?

106. A person's most important organ is his/her brain. This organ cannot be replaced. Other body parts can be replaced e.g. if a person's hand or leg is amputed, he can get an artificial limb. Similarly, we can transplant a kidney, a heart or a liver when the original one has failed. However, we cannot transplant a brain. If someone else's brain is transplanted into one's body, then in fact, it will be that other person living in one's body. The entire mind, including one's personality, cognition, memory, capacity of receiving signals from the five senses and capacity of giving commands to the other parts of the body, etc. are the functions of the brain. Hence one is one's brain. It follows that one is dead when one's brain is dead.

107. As is well-known, the brain cells normally do not multiply after the early years of childhood (except in the region called hippocampus), unlike other cells like skin cells, which are regularly dying and being replaced by new cells produced by multiplying of the old cells. This is probably because brain cells are too highly specialized to multiply. Hence if the brain cells die, they usually cannot be replaced (though sometimes one part of the brain can take over the function of another part in certain situations where the other part has been irreversibly damaged).

108. Brain cells require regular supply of oxygen which comes through the red cells in the blood. If oxygen supply is cut off for more than six minutes, the brain cells die and this condition is known as anoxia. Hence, if the brain is dead a person is said to be dead.

BRAIN DEATH

109. The term `brain death' has developed various meanings. While initially, death could be defined as a cessation of breathing, or, more scientifically, a cessation of heart-beat, recent medical advances have made such definitions obsolete. In order to understand the nature and scope of brain death, it is worthwhile to look at how death was understood. Historically, as the oft-quoted definition in Black's Law Dictionary suggests, death was:

"The cessation of life; the ceasing to exist; defined by physicians as a total stoppage of the circulation of the blood, and a cessation of the animal and vital functions consequent thereon, such as respiration, pulsation, etc.".1 This definition saw its echo in numerous other texts and legal case law. This includes many American precedents- such as Schmidt v. Pierce, 344 S.W.2d 120, 133 (Mo. 1961) ("Black's Law Dictionary, 4th Ed., defines death as `the cessation of life; the ceasing to exist ...."'); and Sanger v. Butler, 101 S.W. 459, 462 (Tex. Civ. App. 1907) ("The Encyclopaedic Dictionary, among others, gives the following definitions of [death]: `The state of being dead; the act or state of dying; the state or condition of the dead.' The Century Dictionary defines death as `cessation of life; that state of a being, animal or vegetable, in which there is a total and permanent cessation of all the vital functions."').2

110. This understanding of death emerged from a cardiopulmonary perspective. In such cases, the brain was usually irrelevant -- being understood that the cessation of circulation would automatically lead to the death of brain cells, which require a great deal of blood to survive.

111. The invention of the ventilator and the defibrillator in the 1920s altered this understanding, it being now possible that the cessation of 1 Black's Law Dictionary 488 (4th ed., rev. 1968). 2 Goldsmith, Jason, Wanted! Dead and/or Alive: Choosing Amongst the Many Not-so-Uniform Definitions of Death, 61 U. Miami L. Rev. 871. (2007).

respiration and circulation, though critical, would no longer be irreversible3. Hence, a present-day understanding of death as the irreversible end of life must imply total brain failure, such that neither breathing, nor circulation is possible any more. The question of the length of time that may determine such death is significant, especially considering a significant increase in organ donations across jurisdictions over the last few years.

112. Brain death, may thus, be defined as "the irreversible cessation of all functions of the entire brain, including the brain stem".4 It is important to understand that this definition goes beyond acknowledging consciousness -- a person who is incapable of ever regaining consciousness will not be considered to be brain dead as long as parts of the brain e.g. brain stem that regulate involuntary activity (such as response to light, respiration, heartbeat etc.) still continue to function. Likewise, if consciousness, albeit severely limited, is present, then a person will be considered to be alive even if he has suffered brain stem death, wherein breathing and heartbeat can no longer be regulated and must be mechanically determined. Hence, the international standard for brain death is usually considered to include "whole-brain death", i.e., a situation where the higher brain (i.e. the part of the brain that 3 Samantha Weyrauch, Acceptance of Whole Brain Death Criteria for Determination of Death: A Comparative Analysis of the United States and Japan, 17 UCLA Pac. Basin L.J. 91, 96. (1999). 4 Section 1, Universal Determination of Death Act, (The United States Legislation) regulates consciousness and thought), the cerebellum or mid-brain, and the brain-stem have all ceased to demonstrate any electrical activity whatsoever for a significant amount of time. To say, in most cases, that only the death of the higher brain would be a criteria for `brain death' may have certain serious consequences -- for example, a foetus, technically under this definition, would not be considered to be alive at all. Similarly, as per this, different definitions of death would apply to human and non-human organisms.

113. Brain death, thus, is different from a persistent vegetative state, where the brain stem continues to work, and so some degree of reactions may occur, though the possibility of regaining consciousness is relatively remote. Even when a person is incapable of any response, but is able to sustain respiration and circulation, he cannot be said to be dead. The mere mechanical act of breathing, thus, would enable him or her to be "alive".

114. The first attempt to define death in this manner came about in 1968, as a result of a Harvard Committee constituted for the purpose.5 This definition, widely criticized for trying to maximize organ donations, considered death to be a situation wherein "individuals who had sustained traumatic brain 5 Ad Hoc Comm. of the Harvard Med. Sch. to Examine the Definition of Brain Death, A Definition of Irreversible Coma, 205 JAMA 337, 337-40 (1968). injury that caused them to be in an irreversible coma, and had lost the ability to breathe spontaneously"6, would be considered dead. This criticism led to the Presidents' Committee, set up for the purpose, in 1981, defining death more vaguely as the point "where the body's physiological system ceases to contribute a uniform whole".

This definition of whole brain death, however, is not without its critics. Some argue that the brain is not always responsible for all bodily functioning- digestion, growth, and some degree of movement (regulated by the spinal cord) may not require any electrical activity in the brain. In order to combat this argument, and further explain what brain death could include, the President's Committee on Bio-ethics in the United States of America in 2008 came up with a new definition of brain death, according to which a person was considered to be brain dead when he could no longer perform the fundamental human work of an organism. These are: "(1) "openness to the world, that is receptivity to stimuli and signals from the surrounding environment,"

(2) "the ability to act upon the world to obtain selectively what it needs. and (3) "the basic felt need that drives the organism to act ... to obtain what it needs."7 6 Seema K. Shah, Franklin Miller, Can We Handle The Truth? Legal Fictions in the Determination of Death. 36 Am. J.L. & Med. 540 (2010).

7 Ibid.

115. When this situation is reached, it is possible to assume that the person is dead, even though he or she, through mechanical stimulation, may be able to breathe, his or her heart might be able to beat, and he or she may be able to take some form of nourishment. It is important, thus, that it be medically proved that a situation where any human functioning would be impossible should have been reached for there to be a declaration of brain death-- situations where a person is in a persistent vegetative state but can support breathing, cardiac functions, and digestion without any mechanical aid are necessarily those that will not come within the ambit of brain death.

116. In legal terms, the question of death would naturally assume significance as death has a set of legal consequences as well. As per the definition in the American Uniform Definition of Death Act, 1980. an individual who "sustain[s] . . . irreversible cessation of all functions of the entire brain, including the brain stem, is dead." This stage, thus, is reached at a situation where not only consciousness, but every other aspect of life regulated from the brain can no longer be so regulated.

Vegetative State (VS) The complete absence of behavioral evidence for self or environmental awareness. There is preserved capacity for spontaneous or stimulus-induced arousal, evidenced by sleep-wake cycles. .i.e. patients are awake, but have no awareness. Explanation: Patients appear awake. They have normal heart beat and breathing, and do not require advanced life support to preserve life. They cannot produce a purposeful, co- ordinated, voluntary response in a sustained manner, although they may have primitive reflexive responses to light, sound, touch or pain. They cannot understand, communicate, speak, or have emotions. They are unaware of self and environment and have no interaction with others. They cannot voluntarily control passing of urine or stools. They sleep and awaken. As the centres in the brain controlling the heart and breathing are intact, there is no threat to life, and patients can survive for many years with expert nursing care. The following behaviours may be seen in the vegetative state : Sleep-wake cycles with eyes closed, then open Patient breathes on her own Spontaneous blinking and roving eye movements Produce sounds but no words Brief, unsustained visual pursuit (following an object with her eyes) Grimacing to pain, changing facial expressions Yawning; chewing jaw movements Swallowing of her own spit Nonpurposeful limb movements; arching of back Reflex withdrawal from painful stimuli Brief movements of head or eyes toward sound or movement without apparent localization or fixation Startles with a loud sound Almost all of these features consistent with the diagnosis of permanent vegetative state were present during the medical examination of Aruna Shanbaug. Minimally Conscious State Some patients with severe alteration in consciousness have neurologic findings that do not meet criteria for VS. These patients demonstrate some behavioral evidence of conscious awareness but remain unable to reproduce this behavior consistently. This condition is referred to here as the minimally conscious state (MCS). MCS is distinguished from VS by the partial preservation of conscious awareness. To make the diagnosis of MCS, limited but clearly discernible evidence of self or environmental awareness must be demonstrated on a reproducible or sustained basis by one or more of the following behaviors:

7 Following simple commands.

7 Gestural or verbal yes/no responses (regardless of accuracy). 7 Intelligible sounds 7 Purposeful behavior, including movements or emotional behaviors (smiling, crying) that occur in relation to relevant environmental stimuli and are not due to reflexive activity. Some examples of qualifying purposeful behavior include:

- appropriate smiling or crying in response to the linguistic or visual content of emotional but not to neutral topics or stimuli

- vocalizations or gestures that occur in direct response to the linguistic content of questions

- reaching for objects that demonstrates a clear relationship between object location and direction of reach

- touching or holding objects in a manner that accommodates the size and shape of the object

- pursuit eye movement or sustained fixation that occurs in direct response to moving or salient stimuli None of the above behaviours suggestive of a Minimally Conscious State were observed during the examination of Aruna Shanbaug.

GLOSSARY OF TECHNICAL TERMS USED IN THE MAIN REPORT (In Alphabetical order) Term in text Meaning Affect Feeling conveyed though expressions and behavior Afebrile No fever Auditory Related to hearing Bedsore A painful wound on the body caused by having to lie in bed for a long time Bilaterally On both sides (right and left) Bruise An injury or mark where the skin has not been broken but is darker in colour, often as a result of being hit by something Catatonic Describes someone who is stiff and not moving or reacting, as if dead Cerebral atrophy Shrinking of the globe (cortex) of the brain Clubbing Bulging or prominence of the nailbed, making base of the nails look thick. This is often due to longstanding infection inside the lungs.

Cognitive Related to ability to understand and process information in the brain Conjugate Synchronised movement (of the eyeball) Conscious Awake with eyes open. By itself the term conscious does not convey any information about awareness of self and surroundings, or the ability to understand, communicate, have emotions, etc. Contractures Muscles or tendons that have become shortened and taut over a period of time. This causes deformity and restriction of movements.

CT Scan A specialized X-ray test where images of the brain (or other part of the body) are obtained in cross-section at different levels. This allows clear visualization of different parts of the brain Cyanosis Bluish discoloration of the nails, lips or skin.

It may be due to low levels of oxygen in the blood Deep tendon reflexes Reflex response of the fleshy part of certain muscles when its tendon is hit lightly with an examination hammer Dementia Disorder in which there is a cognitive defect, i.e. the patient is unable to understand and process information in the brain Electroencephalography, (EEG) Recording of the electrical activity of the brain Febrile illness Illness with fever Fracture A crack or a break in bones Fundi Plural of fundus. Fundus of the eye is the interior surface of the eye, opposite the lens. It is examined with an instrument called the ophthalmoscope Gag reflex Movement of the palate in response to insertion of a tongue depressor in the throat Hallucinations Perception in the absence of stimuli. (e.g.

hearing voices which are not there or which are inaudible to others) Hemifields Right or left part of the field of vision Hypoxic Related to reduced oxygen levels in the blood Icterus Yellowish discoloration of the skin and eyeballs. This is commonly known as jaundice, and may be caused by liver disease Illusions Misperception of stimuli (seeing a rope as a snake) Immediate memory Memory of events which have occurred just a few minutes ago Insight Person's understanding of his or her own illness Intellectual capacity Ability to solve problems. The ability to learn, understand and make judgments or have opinions that are based on reason Involuntary movements Automatic movements over which patient has no control Ischemic Related to restriction or cutting off of the blood flow to any part of the body Malnourishment Weak and in bad health because of having too little food or too little of the types of food necessary for good health Menace reflex Blinking in response to hand movements in front of eyes Mood The way one feels at a particular time Motor Related to movement Movement artefacts Disturbance in the image seen in the CT scan due to patient movement Oral feed Food given through mouth Orientation Awareness about the time, place and person Pallor Pale appearance of the skin. Usually this is due to a low red blood cell count or low haemoglobin level in the blood.

Passive movement Movement of a limb or part of the body done by the doctor without any effort by the patient Perception Sensory experiences (such as seeing, hearing etc.) Perceptual abnormalities Abnormal sensory experiences, e.g, seeing things that do not exist, hearing sounds when there are none Plantars Reflex response of the toes when a sharp painful stimulus is applied to the sole of the foot. The normal response is curling downwards of the toes.

Plantars were withdrawal/extensor When a painful stimulus was applied to the sole of the foot the toes spread out and there was reflex movement of the leg (withdrawal) or upward curling of the great toe and other toes (extensor). This is an abnormal response indicating damage in the pathway in the brain or to the area in the brain controlling function of the legs.

Primary neural pathways Course of the nerves from a part of the body to the area in the brain responsible for the function of that part Pupillary reaction The pupillary light reflex controls the diameter of the pupil, in response to the intensity of light. Greater intensity light causes the pupil to become smaller (allowing less light in), whereas Opinion In our view, the issues in this case (and other similar cases) are:

1. In a person who is in a permanent vegetative state (PVS), should withholding or withdrawal of life sustaining therapies (many authorities would include placement of an artificial feeding tube as a life sustaining intervention) be permissible or `not unlawful' ?

2. If the patient has previously expressed a wish not to have life-sustaining treatments in case of futile care or a PVS, should his / her wishes be respected when the situation arises?

3. In case a person has not previously expressed such a wish, if his family or next of kin makes a request to withhold or withdraw futile life-sustaining treatments, should their wishes be respected?

4. Aruna Shanbaug has been abandoned by her family and is being looked after for the last 37 years by the staff of KEM Hospital. Who should take decisions on her behalf? Questions such as these come up at times in the course of medical practice. We realize that answers to these questions are difficult, and involve several ethical, legal and social issues. Our opinion is based on medical facts and on the principles of medical ethics. We hope that the Honourable Court will provide guidance and clarity in this matter. Two of the cardinal principles of medical ethics are Patient Autonomy and Beneficiance.

1. Autonomy means the right to self-determination, where the informed patient has a right to choose the manner of his treatment. To be autonomous the patient should be competent to make decisions and choices. In the event that he is incompetent to make choices, his wishes expressed in advance in the form of a Living Will, OR the wishes of surrogates acting on his behalf ('substituted judgment') are to be respected. The surrogate is expected to represent what the patient may have decided had he / she been competent, or to act in the patient's best interest. It is expected that a surrogate acting in the patient's best interest follows a course of action because it is best for the patient, and is not influenced by personal convictions, motives or other considerations.

2. Beneficence is acting in what is (or judged to be) in patient's best interest. Acting in the patient's best interest means following a course of action that is best for the patient, and is not influenced by personal convictions, motives or other considerations. In some cases, the doctor's expanded goals may include allowing the natural dying process (neither hastening nor delaying death, but `letting nature take its course'), thus avoiding or reducing the sufferings of the patient and his family, and providing emotional support. This is not to be confused with euthanasia, which involves the doctor's deliberate and intentional act through administering a lethal injection to end the life of the patient. In the present case under consideration

1. We have no indication of Aruna Shanbaug's views or wishes with respect to life-sustaining treatments for a permanent vegetative state.

2. Any decision regarding her treatment will have to be taken by a surrogate

3. The staff of the KEM hospital have looked after her for 37 years, after she was abandoned by her family. We believe that the Dean of the KEM Hospital (representing the staff of hospital) is an appropriate surrogate.

4. If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together acting in the best interest of the patient, feel that life sustaining treatments should continue, their decision should be respected.

5. If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together acting in the best interest of the patient, feel that withholding or withdrawing life-sustaining treatments is the appropriate course of action, they should be allowed to do so, and their actions should not be considered unlawful.

10. To complete the narration of facts and before we come to the legal issues involved, we may mention that Dr. Sanjay Oak, Dean KEM Hospital Mumbai has issued a statement on 24.1.2011 opposing euthanasia for the petitioner :-

"She means a lot to KEM hospital. She is on liquid diet and loves listening to music. We have never subjected her to intravenous food or fed her via a tube. All these years, she hasn't had even one bedsore. When those looking after her do not have a problem, I don't understand why a third party who has nothing to do with her [Pinky Virani who has moved the apex court to seek euthanasia for Shanbaug] needs to worry," added Dr Oak, who, when he took over as dean of KEM hospital in 2008, visited her first to take her blessings. "I call on her whenever I get time. I am there whenever she has dysentery or any another problem. She is very much alive and we have faith in the judiciary," said Dr Oak."
11. Dr. Sanjay Oak has subsequently filed an affidavit in this Court which states :

"a) Smt. Aruna Ramchandra Shanbaug has been admitted in a single room in Ward No.4 which is a ward of general internal medicine patients and she has been there for last 37 years. She is looked after entirely by doctors, nurses and para-medical staff of KEM Hospital. She has been our staff nurse and the unfortunate tragic incidence has happened with her in KEM Hospital and I must put on record that the entire medical, administrative, nursing and para-medical staff is extremely attached to her and consider her as one of us. Her relatives and a gentleman (her fiancee) used to visit her in the initial period of her illness but subsequently she has been left to the care of KEM staff. I visit her frequently and my last visit to her was on 22nd February, 2011. I give my observations as a Clinician about Smt. Aruna Shanbaug as under :

b) It would be incorrect to say that Smt. Aruna Shanbaug is an appropriate case for Coma. It appears that for a crucial, critical period her brain was deprived of Oxygen supply and this has resulted in her present state similar to that of Cerebral Palsy in the newborn child. It is a condition where brain looses it's co-ordinatory, sensory as well as motor functions and this includes loss of speech and perception. This has resulted into a state which in a layman's words "Aruna lives in her own world for last 37 years". She is lying in a bed in a single room for 33 years. She has not been able to stand or walk, nor have we attempted to do that of late because we fear that she is fragile and would break her bones if she falls. Her extremities and fingers have developed contractures and subsequent to non-use; there is wasting of her body muscles. Her eyes are open and she blinks frequently; however, these movements are not pertaining to a specific purpose or as a response to a question. At times she is quiet and at times she shouts or shrieks. However, I must say that her shouts and shrieks are completely oblivious to anybody's presence in her room. It is not true that she shouts after seeing a man. I do not think Aruna can distinguish between a man and a woman, nor can she even distinguish between ordinate and inordinate object. We play devotional songs rendered by Sadguru Wamanrao Pai continuously in her room and she lies down on her bed listening to them. She expresses her displeasure by grimaces and shouts if the tape recorder is switched off. All these years she was never fed by tube and whenever a nurse used to take food to her lips, she used to swallow it. It is only since September 2010 she developed Malaria and her oral intake dropped. In order to take care of her calorie make need, nurses cadre resorted to naso-gastric tube feed and now she is used to NG feeding. However, if small morsels are held near her lips, Aruna accepts them gladly. It appears that she relishes fish and occasionally smiles when she is given non-vegetarian food. However, I am honest in admitting that her smiles are not purposeful and it would be improper to interpret them as a signal of gratification. I must put on record that in the world history of medicine there would not be another single case where such a person is cared and nurtured in bed for 33 long years and has not developed a single bed sore. This speaks of volumes of excellence of nursing care that KEM Nursing staff has given to her.

c) This care is given not as a part of duty but as a part of feeling of oneness. With every new batch of entrants, the student nurses are introduced to her and they are told that she was one of us and she continues to be one of us and then they whole-heartedly take care of Aruna. In my opinion, this one is finest example of love, professionalism, dedication and commitment to one of our professional colleagues who is ailing and cannot support herself. Not once, in this long sojourn of 33 years, anybody has thought of putting an end to her so called vegetative existence. There have been several Deans and Doctors of KEM Hospital who have cared her in succession. Right from illustrious Dr. C.K. Deshpande in whose tenure the incidence happened in 1973, Dr. G.B. Parulkar, Dr. Smt. Pragna M. Pai, Dr. R.J. Shirahatti, Dr. Smt. N.A. Kshirsagar, Dr. M.E. Yeolekar and now myself Dr. Sanjay N. Oak, all of us have visited her room time and again and have cared for her and seen her through her ups and downs. The very idea of withholding food or putting her to sleep by active medication (mercy killing) is extremely difficult for anybody working in Seth GSMC & KEM Hospital to accept and I sincerely make a plea to the Learned Counsel and Hon'ble Judges of Supreme Court of India that this should not be allowed. Aruna has probably crossed 60 years of life and would one day meet her natural end. The Doctors, Nurses and staff of KEM, are determined to take care of her till her last breath by natural process.

d) I do not think it is proper on my part to make a comment on the entire case. However, as a clinical surgeon for last 3 decades and as an administrator of the hospitals for last 7 years and as a student of legal system of India (as I hold "Bachelor of Law" degree from Mumbai University), I feel that entire society has not matured enough to accept the execution of an Act of Euthanasia or Mercy Killing. I fear that this may get misused and our monitoring and deterring mechanisms may fail to prevent those unfortunate incidences. To me any mature society is best judged by it's capacity and commitment to take care of it's "invalid" ones. They are the children of Lesser God and in fact, developing nation as we are, we should move in a positive manner of taking care of several unfortunate ones who have deficiencies, disabilities and deformities."

12. The Hospital staff of KEM Hospital, Mumbai e.g. the doctors, sister- in-charge ward no. 4 KEM hospital Lenny Cornielo, Assistant Matron Urmila Chauhan and others have also issued statements that they were looking after Aruna Shanbaug and want her to live. "Aruna is the bond that unites us", the KEM Hospital staff has stated. One retired nurse, Tidi Makwana, who used to take care of Aruna while in service, has even offered to continue to take care of her without any salary and without charging any traveling expenses.

13. We have referred to these statements because it is evident that the KEM Hospital staff right from the Dean, including the present Dean Dr. Sanjay Oak and down to the staff nurses and para-medical staff have been looking after Aruna for 38 years day and night. What they have done is simply marvelous. They feed Aruna, wash her, bathe her, cut her nails, and generally take care of her, and they have been doing this not on a few occasions but day and night, year after year. The whole country must learn the meaning of dedication and sacrifice from the KEM hospital staff. In 38 years Aruna has not developed one bed sore.

14. It is thus obvious that the KEM hospital staff has developed an emotional bonding and attachment to Aruna Shanbaug, and in a sense they are her real family today. Ms. Pinki Virani who claims to be the next friend of Aruna Shanbaug and has filed this petition on her behalf is not a relative of Aruna Shanbaug nor can she claim to have such close emotional bonding with her as the KEM hospital staff. Hence, we are treating the KEM hospital staff as the next friend of Aruna Shanbaug and we decline to recognize Ms. Pinki Virani as her next friend. No doubt Ms. Pinki Virani has written a book about Aruna Shanbaug and has visited her a few times, and we have great respect for her for the social causes she has espoused, but she cannot claim to have the extent of attachment or bonding with Aruna which the KEM hospital staff, which has been looking after her for years, claims to have.

SUBMISSIONS OF LEARNED COUNSEL FOR THE PARTIES

15. Mr. Shekhar Naphade, learned senior counsel for the petitioner has relied on the decision of this Court in Vikram Deo Singh Tomar vs. State of Bihar 1988 (Supp) SCC 734 (vide para 2) where it was observed by this Court :

"We live in an age when this Court has demonstrated, while interpreting Article 21 of the Constitution, that every person is entitled to a quality of life consistent with his human personality. The right to live with human dignity is the fundamental right of every Indian citizen".
16. He has also relied on the decision of this Court in P. Rathinam vs. Union of India and another (1994) 3 SCC 394 in which a two-Judge bench of this Court quoted with approval a passage from an article by Dr. M. Indira and Dr. Alka Dhal in which it was mentioned :

"Life is not mere living but living in health. Health is not the absence of illness but a glowing vitality".

17. The decision in Rathinam's case (supra) was, however, overruled by a Constitution Bench decision of this Court in Gian Kaur vs. State of Punjab (1996) 2 SCC 648.

18. Mr. Naphade, however, has invited our attention to paras 24 & 25 of the aforesaid decision in which it was observed :

"(24) Protagonism of euthanasia on the view that existence in persistent vegetative state (PVS) is not a benefit to the patient of a terminal illness being unrelated to the principle of 'sanctity of life' or the right to live with dignity' is of no assistance to determine the scope of Article 21 for deciding whether the guarantee of right to life' therein includes the right to die'. The right to life' including the right to live with human dignity would mean the existence of such a right upto the end of natural life. This also includes the right to a dignified life upto the point of death including a dignified procedure of death. In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out. But the 'right to die' with dignity at the end of life is not to be confused or equated with the right to die' an unnatural death curtailing the natural span of life.
(25) A question may arise, in the context of a dying man, who is, terminally ill or in a persistent vegetative state that he may be permitted to terminate it by a premature extinction of his life in those circumstances. This category of cases may fall within the ambit of the 'right to die' with dignity as a part of right to live with dignity, when death due to termination of natural life is certain and imminent and the process of natural death has commenced. These are not cases of extinguishing life but only of accelerating conclusion of the process of natural death which has already commenced. The debate even in such cases to permit physician assisted termination of life is inconclusive. It is sufficient to reiterate that the argument to support the view of permitting termination of life in such cases to reduce the period of suffering during the process of certain natural death is not available to interpret Article 21 to include therein the right to curtail the natural span of life".
He has particularly emphasized paragraph 25 of the said judgment in support of his submission that Aruna Shanbaug should be allowed to die.

19. We have carefully considered paragraphs 24 and 25 in Gian Kaur's case (supra) and we are of the opinion that all that has been said therein is that the view in Rathinam's case (supra) that the right to life includes the right to die is not correct. We cannot construe Gian Kaur's case (supra) to mean anything beyond that. In fact, it has been specifically mentioned in paragraph 25 of the aforesaid decision that "the debate even in such cases to permit physician assisted termination of life is inconclusive". Thus it is obvious that no final view was expressed in the decision in Gian Kaur's case beyond what we have mentioned above.

20. Mr. Naphade, learned senior counsel submitted that Ms. Pinky Virani is the next friend of Aruna as she has written a book on her life called `Aruna's story' and has been following Aruna's case from 1980 and has done whatever possible and within her means to help Aruna. Mr. Naphade has also invited our attention to the report of the Law Commission of India, 2006 on `Medical Treatment to Terminally Ill Patients'. We have perused the said report carefully.

21. Learned Attorney General appearing for the Union of India after inviting our attention to the relevant case law submitted as under :

(i) Aruna Ramchandra Shanbaug has the right to live in her present state.
(ii) The state that Aruna Ramchandra Shanbaug is presently in does not justify terminating her life by withdrawing hydration/food/medical support.
(iii) The aforesaid acts or series of acts and/or such omissions will be cruel, inhuman and intolerable.
(iv) Withdrawing/withholding of hydration/food/medical support to a patient is unknown to Indian law and is contrary to law.
(v) In case hydration or food is withdrawn/withheld from Aruna Ramchandra Shanbaug, the efforts which have been put in by batches after batches of nurses of KEM Hospital for the last 37 years will be undermined.
(vi) Besides causing a deep sense of resentment in the nursing staff as well as other well wishers of Aruna Ramchandra Shanbaug in KEM Hospital including the management, such acts/omissions will lead to disheartenment in them and large scale disillusionment.
(vii) In any event, these acts/omissions cannot be permitted at the instance of Ms. Pinky Virani who desires to be the next friend of Aruna Ramchandra Shanbaug without any locus.
Learned Attorney General stated that the report of the Law Commission of India on euthanasia has not been accepted by the Government of India. He further submitted that Indian society is emotional and care-oriented. We do not send our parents to old age homes, as it happens in the West. He stated that there was a great danger in permitting euthanasia that the relatives of a person may conspire with doctors and get him killed to inherit his property. He further submitted that tomorrow there may be a cure to a medical state perceived as incurable today.

22. Mr. T. R. Andhyarujina, learned senior counsel whom we had appointed as Amicus Curiae, in his erudite submissions explained to us the law on the point. He submitted that in general in common law it is the right of every individual to have the control of his own person free from all restraints or interferences of others. Every human being of adult years and sound mind has a right to determine what shall be done with his own body. In the case of medical treatment, for example, a surgeon who performs an operation without the patient's consent commits assault or battery.

23. It follows as a corollary that the patient possesses the right not to consent i.e. to refuse treatment. (In the United States this right is reinforced by a Constitutional right of privacy). This is known as the principle of self- determination or informed consent.

24. Mr. Andhyarujina submitted that the principle of self-determination applies when a patient of sound mind requires that life support should be discontinued. The same principle applies where a patient's consent has been expressed at an earlier date before he became unconscious or otherwise incapable of communicating it as by a `living will' or by giving written authority to doctors in anticipation of his incompetent situation.

Mr. Andhyarujina differed from the view of the learned Attorney General in that while the latter opposed even passive euthanasia, Mr. Andhyarujina was in favour of passive euthanasia provided the decision to discontinue life support was taken by responsible medical practitioners.

25. If the doctor acts on such consent there is no question of the patient committing suicide or of the doctor having aided or abetted him in doing so. It is simply that the patient, as he is entitled to do, declines to consent to treatment which might or would have the effect of prolonging his life and the doctor has in accordance with his duties complied with the patient's wishes.

26. The troublesome question is what happens when the patient is in no condition to be able to say whether or not he consents to discontinuance of the treatment and has also given no prior indication of his wishes with regard to it as in the case of Aruna. In such a situation the patient being incompetent to express his self-determination the approach adopted in some of the American cases is of "substituted judgment" or the judgment of a surrogate. This involves a detailed inquiry into the patient's views and preferences. The surrogate decision maker has to gather from material facts as far as possible the decision which the incompetent patient would have made if he was competent. However, such a test is not favoured in English law in relation to incompetent adults.

27. Absent any indication from a patient who is incompetent the test which is adopted by Courts is what is in the best interest of the patient whose life is artificially prolonged by such life support. This is not a question whether it is in the best interest of the patient that he should die. The question is whether it is in the best interest of the patient that his life should be prolonged by the continuance of the life support treatment. This opinion must be formed by a responsible and competent body of medical persons in charge of the patient.

28. The withdrawal of life support by the doctors is in law considered as an omission and not a positive step to terminate the life. The latter would be euthanasia, a criminal offence under the present law in UK, USA and India.

29. In such a situation, generally the wishes of the patient's immediate family will be given due weight, though their views cannot be determinative of the carrying on of treatment as they cannot dictate to responsible and competent doctors what is in the best interest of the patient. However, experience shows that in most cases the opinions of the doctors and the immediate relatives coincide.

30. Whilst this Court has held that there is no right to die (suicide) under Article 21 of the Constitution and attempt to suicide is a crime vide Section 309 IPC, the Court has held that the right to life includes the right to live with human dignity, and in the case of a dying person who is terminally ill or in a permanent vegetative state he may be permitted to terminate it by a premature extinction of his life in these circumstances and it is not a crime vide Gian Kaur's case (supra).

31. Mr. Andhyarujina submitted that the decision to withdraw the life support is taken in the best interests of the patient by a body of medical persons. It is not the function of the Court to evaluate the situation and form an opinion on its own. In England for historical reasons the parens patriae jurisdiction over adult mentally incompetent persons was abolished by statute and the Court has no power now to give its consent. In this situation, the Court only gives a declaration that the proposed omission by doctors is not unlawful.

32. In U.K., the Mental Capacity Act, 2005 now makes provision relating to persons who lack capacity and to determine what is in their best interests and the power to make declaration by a special Court of Protection as to the lawfulness of any act done in relation to a patient.

33. Mr. Andhyarujina submitted that the withdrawal of nutrition by stopping essential food by means of nasogastric tube is not the same as unplugging a ventilator which artificially breathes air into the lungs of a patient incapable of breathing resulting in instant death. In case of discontinuance of artificial feeding the patient will as a result starve to death with all the sufferings and pain and distress associated with such starving. This is a very relevant consideration in a PVS patient like Aruna who is not totally unconscious and has sensory conditions of pain etc. unlike Antony Bland in Airedale vs. Director MHD (1993) 2 WLR 316 who was totally unconscious. Would the doctor be able to avoid such pain or distress by use of sedatives etc.? In such a condition would it not be more appropriate to continue with the nasogastric feeding but not take any other active steps to combat any other illness which she may contract and which may lead to her death?

34. Mr. Andhyarujina further submitted that in a situation like that of Aruna, it is also necessary to recognize the deep agony of nurses of the hospital who have with deep care looked after her for over 37 years and who may not appreciate the withdrawal of the life support. It may be necessary that their views should be considered by the Court in some appropriate way.

35. Mr. Andhyarujina, in the course of his submission stated that some Courts in USA have observed that the view of a surrogate may be taken to be the view of the incompetent patient for deciding whether to withdraw the life support, though the House of Lords in Airedale's case has not accepted this. He submitted that relatives of Aruna do not seem to have cared for her and it is only the nursing staff and medical attendants of KEM hospital who have looked after her for 37 years. He has also submitted that though the humanistic intention of Ms. Pinky Virani cannot be doubted, it is the opinion of the attending doctors and nursing staff which is more relevant in this case as they have looked after her for so many years.

36. Mr. Pallav Shishodia, learned senior counsel for the Dean, KEM hospital, Mumbai submitted that Ms. Pinky Virani has no locus standi in the matter and it is only the KEM hospital staff which could have filed such a writ petition.

37. We have also heard learned counsel for the State of Maharashtra, Mr. Chinmoy Khaldkar and other assisting counsel whose names have been mentioned in this judgment. They have been of great assistance to us as we are deciding a very sensitive and delicate issue which while requiring a humanistic approach, also requires great case and caution to prevent misuse. We were informed that not only the learned counsel who argued the case before us, but also the assistants (whose names have been mentioned in the judgment) have done research on the subject for several weeks, and indeed this has made our task easier in deciding this case. They therefore deserve our compliment and thanks.

Legal Issues : Active and Passive Euthanasia

38. Coming now to the legal issues in this case, it may be noted that euthanasia is of two types : active and passive. Active euthanasia entails the use of lethal substances or forces to kill a person e.g. a lethal injection given to a person with terminal cancer who is in terrible agony. Passive euthanasia entails withholding of medical treatment for continuance of life, e.g. withholding of antibiotics where without giving it a patient is likely to die, or removing the heart lung machine, from a patient in coma.

39. The general legal position all over the world seems to be that while active euthanasia is illegal unless there is legislation permitting it, passive euthanasia is legal even without legislation provided certain conditions and safeguards are maintained.

40. A further categorization of euthanasia is between voluntary euthanasia and non voluntary euthanasia. Voluntary euthanasia is where the consent is taken from the patient, whereas non voluntary euthanasia is where the consent is unavailable e.g. when the patient is in coma, or is otherwise unable to give consent. While there is no legal difficulty in the case of the former, the latter poses several problems, which we shall address. ACTIVE EUTHANASIA

41. As already stated above active euthanasia is a crime all over the world except where permitted by legislation. In India active euthanasia is illegal and a crime under section 302 or at least section 304 IPC. Physician assisted suicide is a crime under section 306 IPC (abetment to suicide).

42. Active euthanasia is taking specific steps to cause the patient's death, such as injecting the patient with some lethal substance, e.g. sodium pentothal which causes a person deep sleep in a few seconds, and the person instantaneously and painlessly dies in this deep sleep.

43. A distinction is sometimes drawn between euthanasia and physician assisted dying, the difference being in who administers the lethal medication. In euthanasia, a physician or third party administers it, while in physician assisted suicide it is the patient himself who does it, though on the advice of the doctor. In many countries/States the latter is legal while the former is not.

44. The difference between "active" and "passive" euthanasia is that in active euthanasia, something is done to end the patient's life' while in passive euthanasia, something is not done that would have preserved the patient's life.

45. An important idea behind this distinction is that in "passive euthanasia" the doctors are not actively killing anyone; they are simply not saving him. While we usually applaud someone who saves another person's life, we do not normally condemn someone for failing to do so. If one rushes into a burning building and carries someone out to safety, he will probably be called a hero. But if one sees a burning building and people screaming for help, and he stands on the sidelines -- whether out of fear for his own safety, or the belief that an inexperienced and ill-equipped person like himself would only get in the way of the professional firefighters, or whatever -- if one does nothing, few would judge him for his inaction. One would surely not be prosecuted for homicide. (At least, not unless one started the fire in the first place.)

46. Thus, proponents of euthanasia say that while we can debate whether active euthanasia should be legal, there can be no debate about passive euthanasia: You cannot prosecute someone for failing to save a life. Even if you think it would be good for people to do X, you cannot make it illegal for people to not do X, or everyone in the country who did not do X today would have to be arrested.

47. Some persons are of the view that the distinction is not valid. They give the example of the old joke about the child who says to his teacher, "Do you think it's right to punish someone for something that he didn't do?" "Why, of course not," the teacher replies. "Good," the child says, "because I didn't do my homework."

48. In fact we have many laws that penalize people for what they did not do. A person cannot simply decide not to pay his income taxes, or not bother to send his/her children to school (where the law requires sending them), or not to obey a policeman's order to put down one's gun.

49. However, we are of the opinion that the distinction is valid, as has been explained in some details by Lord Goff in Airedale's case (infra) which we shall presently discuss.

LEGISLATION IN SOME COUNTRIES RELATING TO EUTHANASIA OR PHYSICIAN ASSISTED DEATH

50. Although in the present case we are dealing with a case related to passive euthanasia, it would be of some interest to note the legislations in certain countries permitting active euthanasia. These are given below.

Netherlands:

Euthanasia in the Netherlands is regulated by the "Termination of Life on Request and Assisted Suicide (Review Procedures) Act", 2002. It states that euthanasia and physician-assisted suicide are not punishable if the attending physician acts in accordance with the criteria of due care. These criteria concern the patient's request, the patient's suffering (unbearable and hopeless), the information provided to the patient, the presence of reasonable alternatives, consultation of another physician and the applied method of ending life. To demonstrate their compliance, the Act requires physicians to report euthanasia to a review committee.

The legal debate concerning euthanasia in the Netherlands took off with the "Postma case" in 1973, concerning a physician who had facilitated the death of her mother following repeated explicit requests for euthanasia. While the physician was convicted, the court's judgment set out criteria when a doctor would not be required to keep a patient alive contrary to his will. This set of criteria was formalized in the course of a number of court cases during the 1980s. Termination of Life on Request and Assisted Suicide (Review Procedures) Act took effect on April 1, 2002. It legalizes euthanasia and physician assisted suicide in very specific cases, under very specific circumstances. The law was proposed by Els Borst, the minister of Health. The procedures codified in the law had been a convention of the Dutch medical community for over twenty years. The law allows a medical review board to suspend prosecution of doctors who performed euthanasia when each of the following conditions is fulfilled:

7 the patient's suffering is unbearable with no prospect of improvement 7 the patient's request for euthanasia must be voluntary and persist over time (the request cannot be granted when under the influence of others, psychological illness, or drugs) 7 the patient must be fully aware of his/her condition, prospects and options 7 there must be consultation with at least one other independent doctor who needs to confirm the conditions mentioned above 7 the death must be carried out in a medically appropriate fashion by the doctor or patient, in which case the doctor must be present 7 the patient is at least 12 years old (patients between 12 and 16 years of age require the consent of their parents) The doctor must also report the cause of death to the municipal coroner in accordance with the relevant provisions of the Burial and Cremation Act. A regional review committee assesses whether a case of termination of life on request or assisted suicide complies with the due care criteria. Depending on its findings, the case will either be closed or, if the conditions are not met, brought to the attention of the Public Prosecutor. Finally, the legislation offers an explicit recognition of the validity of a written declaration of the will of the patient regarding euthanasia (a "euthanasia directive"). Such declarations can be used when a patient is in a coma or otherwise unable to state if they wish to be euthanized.

Euthanasia remains a criminal offense in cases not meeting the law's specific conditions, with the exception of several situations that are not subject to the restrictions of the law at all, because they are considered normal medical practice. These are : 7 stopping or not starting a medically useless (futile) treatment 7 stopping or not starting a treatment at the patient's request 7 speeding up death as a side-effect of treatment necessary for alleviating serious suffering Euthanasia of children under the age of 12 remains technically illegal; however, Dr. Eduard Verhagen has documented several cases and, together with colleagues and prosecutors, has developed a protocol to be followed in those cases. Prosecutors will refrain from pressing charges if this Groningen Protocol is followed. Switzerland:

Switzerland has an unusual position on assisted suicide: it is legally permitted and can be performed by non-physicians. However, euthanasia is illegal, the difference between assisted suicide and euthanasia being that while in the former the patient administers the lethal injection himself, in the latter a doctor or some other person administers it.

Article 115 of the Swiss penal code, which came into effect in 1942 (having been approved in 1937), considers assisting suicide a crime if, and only if, the motive is selfish. The code does not give physicians a special status in assisting suicide; although, they are most likely to have access to suitable drugs. Ethical guidelines have cautioned physicians against prescribing deadly drugs. Switzerland seems to be the only country in which the law limits the circumstances in which assisted suicide is a crime, thereby decriminalising it in other cases, without requiring the involvement of a physician. Consequently, non-physicians have participated in assisted suicide. However, legally, active euthanasia e.g. administering a lethal injection by a doctor or some other person to a patient is illegal in Switzerland (unlike in Holland where it is legal under certain conditions).

The Swiss law is unique because (1) the recipient need not be a Swiss national, and (2) a physician need not be involved. Many persons from other countries, especially Germany, go to Switzerland to undergo euthanasia.

Belgium:

Belgium became the second country in Europe after Netherlands to legalize the practice of euthanasia in September 2002. The Belgian law sets out conditions under which suicide can be practised without giving doctors a licence to kill. Patients wishing to end their own lives must be conscious when the demand is made and repeat their request for euthanasia. They have to be under "constant and unbearable physical or psychological pain" resulting from an accident or incurable illness. The law gives patients the right to receive ongoing treatment with painkillers -- the authorities have to pay to ensure that poor or isolated patients do not ask to die because they do not have money for such treatment.

Unlike the Dutch legislation, minors cannot seek assistance to die. In the case of someone who is not in the terminal stages of illness, a third medical opinion must be sought.

Every mercy killing case will have to be filed at a special commission to decide if the doctors in charge are following the regulations. U.K., Spain, Austria, Italy, Germany, France, etc. In none of these countries is euthanasia or physician assisted death legal. In January 2011 the French Senate defeated by a 170-142 vote a bill seeking to legalize euthanasia. In England, in May 2006 a bill allowing physician assisted suicide, was blocked, and never became law.

United States of America:

Active Euthanasia is illegal in all states in U.S.A., but physician assisted dying is legal in the states of Oregon, Washington and Montana. As already pointed out above, the difference between euthanasia and physician assisted suicide lies in who administers the lethal medication. In the former, the physician or someone else administers it, while in the latter the patient himself does so, though on the advice of the doctor.

Oregon:

Oregon was the first state in U.S.A. to legalize physician assisted death.

The Oregon legislature enacted the Oregon Death with Dignity Act, in 1997. Under the Death With Dignity Act, a person who sought physician-assisted suicide would have to meet certain criteria: 7 He must be an Oregon resident, at least 18 years old, and must have decision making capacity.

7 The person must be terminally ill, having six months or less to live. 7 The person must make one written and two oral requests for medication to end his/her life, the written one substantially in the form provided in the Act, signed, dated, witnessed by two persons in the presence of the patient who attest that the person is capable, acting voluntarily and not being coerced to sign the request. There are stringent qualifications as to who may act as a witness. 7 The patient's decision must be an `informed' one, and the attending physician is obligated to provide the patient with information about the diagnosis, prognosis, potential risks, and probable consequences of taking the prescribed medication, and alternatives, including, but not limited to comfort care, hospice care and pain control. Another physician must confirm the diagnosis, the patient's decision making capacity, and voluntariness of the patient's decisions. 7 Counselling has to be provided if the patient is suffering from depression or a mental disorder which may impact his judgment. 7 There has to be a waiting period of 15 days, next of kin have to be notified, and State authorities have to be informed. 7 The patient can rescind his decision at any time In response to concerns that patients with depression may seek to end their lives, the 1999 amendment provides that the attending physician must determine that the patient does not have `depression causing impaired judgment' before prescribing the medication. Under the law, a person who met all requirements could receive a prescription of a barbiturate that would be sufficient to cause death. However, the lethal injection must be administered by the patient himself, and physicians are prohibited from administering it. The landmark case to declare that the practice of euthanasia by doctors to help their patients shall not be taken into cognizance was Gonzalez vs Oregon decided in 2006.

After the Oregon Law was enacted about 200 persons have had euthanasia in Oregon.

Washington:

Washington was the second state in U.S.A. which allowed the practice of physician assisted death in the year 2008 by passing the Washington Death with Dignity Act, 2008.

Montana:

Montana was the third state (after Oregon and Washington) in U.S.A. to legalize physician assisted deaths, but this was done by the State judiciary and not the legislature. On December 31, 2009, the Montana Supreme Court delivered its verdict in the case of Baxter v. Montana permitting physicians to prescribe lethal indication. The court held that there was "nothing in Montana Supreme Court precedent or Montana statutes indicating that physician aid in dying is against public policy."

Other States in U.S.A.:

In no other State in U.S.A. is euthanasia or physician assisted death legal. Michigan banned euthanasia and assisted suicide in 1993, after Dr. Kevorkian (who became known as `doctor death') began encouraging and assisting in suicides. He was convicted in 1999 for an assisted suicide displayed on television, his medical licence cancelled, and he spent 8 years in jail.

In 1999 the State of Texas enacted the Texas Futile Care Law which entitles Texas hospitals and doctors, in some situations, to withdraw life support measures, such as mechanical respiration, from terminally ill patient when such treatment is considered futile and inappropriate. However, Texas has not legalized euthanasia or physician assisted death. In California, though 75 of people support physician assisted death, the issue is highly controversial in the State legislature. Forty States in USA have enacted laws which explicitly make it a crime to provide another with the means of taking his or her life. In 1977 California legalized living wills, and other States soon followed suit. A living will (also known as advance directive or advance decision) is an instruction given by an individual while conscious specifying what action should be taken in the event he/she is unable to make a decision due to illness or incapacity, and appoints a person to take such decisions on his/her behalf. It may include a directive to withdraw life support on certain eventualities. Canada:

In Canada, physician assisted suicide is illegal vide Section 241(b) of the Criminal Code of Canada.

The leading decision of the Canadian Supreme Court in this connection is Sue Rodriguez v. British Columbia (Attorney General), (1993) 3 SCR 519. Rodriguez, a woman of 43, was diagnosed with Amyotrophic Lateral Sclerosis (ALS), and requested the Canadian Supreme Court to allow someone to aid her in ending her life. Her condition was deteriorating rapidly, and the doctors told her that she would soon lose the ability to swallow, speak, walk, and move her body without assistance. Thereafter she would lose her capacity to breathe without a respirator, to eat without a gastrotomy, and would eventually be confined to bed. Her life expectancy was 2 to 14 months.

The Canadian Supreme Court was deeply divided. By a 5 to 4 majority her plea was rejected. Justice Sopinka, speaking for the majority (which included Justices La Forest, Gonthier, Iacobucci and Major) observed :

"Sanctity of life has been understood historically as excluding freedom of choice in the self infliction of death, and certainly in the involvement of others in carrying out that choice. At the very least, no new consensus has emerged in society opposing the right of the State to regulate the involvement of others in exercising power over individuals ending their lives." The minority, consisting of Chief Justice Lamer and Justices L'Heureux-Dube, Cory and McLachlin, dissented.
PASSIVE EUTHANASIA

51. Passive euthanasia is usually defined as withdrawing medical treatment with a deliberate intention of causing the patient's death. For example, if a patient requires kidney dialysis to survive, not giving dialysis although the machine is available, is passive euthanasia. Similarly, if a patient is in coma or on a heart lung machine, withdrawing of the machine will ordinarily result in passive euthanasia. Similarly not giving life saving medicines like antibiotics in certain situations may result in passive euthanasia. Denying food to a person in coma or PVS may also amount to passive euthanasia.

52. As already stated above, euthanasia can be both voluntary or non voluntary. In voluntary passive euthanasia a person who is capable of deciding for himself decides that he would prefer to die (which may be for various reasons e.g., that he is in great pain or that the money being spent on his treatment should instead be given to his family who are in greater need, etc.), and for this purpose he consciously and of his own free will refuses to take life saving medicines. In India, if a person consciously and voluntarily refuses to take life saving medical treatment it is not a crime. Whether not taking food consciously and voluntarily with the aim of ending one's life is a crime under section 309 IPC (attempt to commit suicide) is a question which need not be decided in this case.

53. Non voluntary passive euthanasia implies that the person is not in a position to decide for himself e.g., if he is in coma or PVS. The present is a case where we have to consider non voluntary passive euthanasia i.e. whether to allow a person to die who is not in a position to give his/her consent.

54. There is a plethora of case law on the subject of the Courts all over the world relating to both active and passive euthanasia. It is not necessary to refer in detail to all the decisions of the Courts in the world on the subject of euthanasia or physically assisted dead (p.a.d.) but we think it appropriate to refer in detail to certain landmark decisions, which have laid down the law on the subject.

THE AIREDALE CASE : (Airedale NHS Trust v. Bland (1993) All E.R. 82) (H.L.)

55. In the Airedale case decided by the House of Lords in the U.K., the facts were that one Anthony Bland aged about 17 went to the Hillsborough Ground on 15th April 1989 to support the Liverpool Football Club. In the course of the disaster which occurred on that day, his lungs were crushed and punctured and the supply to his brain was interrupted. As a result, he suffered catastrophic and irreversible damage to the higher centres of the brain. For three years, he was in a condition known as `persistent vegetative state (PVS). This state arises from the destruction of the cerebral cortex on account of prolonged deprivation of oxygen, and the cerebral cortex of Anthony had resolved into a watery mass. The cortex is that part of the brain which is the seat of cognitive function and sensory capacity. Anthony Bland could not see, hear or feel anything. He could not communicate in any way. His consciousness, which is an essential feature of an individual personality, had departed forever. However, his brain-stem, which controls the reflective functions of the body, in particular the heart beat, breathing and digestion, continued to operate. He was in persistent vegetative state (PVS) which is a recognized medical condition quite distinct from other conditions sometimes known as "irreversible coma", "the Guillain-Barre syndrome", "the locked-in syndrome" and "brain death".

56. The distinguishing characteristic of PVS is that the brain stem remains alive and functioning while the cortex has lost its function and activity. Thus the PVS patient continues to breathe unaided and his digestion continues to function. But although his eyes are open, he cannot see. He cannot hear. Although capable of reflex movement, particularly in response to painful stimuli, the patient is uncapable of voluntary movement and can feel no pain. He cannot taste or smell. He cannot speak or communicate in any way. He has no cognitive function and thus can feel no emotion, whether pleasure or distress. The absence of cerebral function is not a matter of surmise; it can be scientifically demonstrated. The space which the brain should occupy is full of watery fluid.

57. In order to maintain Mr. Bland in his condition, feeding and hydration were achieved by artificial means of a nasogastric tube while the excretory functions were regulated by a catheter and enemas. According to eminent medical opinion, there was no prospect whatsoever that he would ever make a recovery from his condition, but there was every likelihood that he would maintain this state of existence for many years to come provided the artificial means of medical care was continued.

58. In this state of affairs the medical men in charge of Anthony Bland case took the view, which was supported by his parents, that no useful purpose would be served by continuing medical care, and that artificial feeding and other measures aimed at prolonging his existence should be stopped. Since however, there was a doubt as to whether this course might constitute a criminal offence, the hospital authorities sought a declaration from the British High Court to resolve these doubts.

59. The declaration was granted by the Family Division of the High Court on 19.11.1992 and that judgment was affirmed by the Court of Appeal on 9.12.1992. A further appeal was made to the House of Lords which then decided the case.

Aruna Ramchandra Shanbaug vs Union Of India & Ors
Bench: Markandey Katju, Gyan Sudha Misra - Supreme Court of India - CRIMINAL ORIGINAL JURISDICTION - WRIT PETITION (CRIMINAL) NO. 115 OF 2009 - date of Judgment: 7 March, 2011

Markandey Katju, J.

"Marte hain aarzoo mein marne ki Maut aati hai par nahin aati"
-- Mirza Ghalib
1. Heard Mr. Shekhar Naphade, learned senior counsel for the petitioner, learned Attorney General for India for the Union of India Mr. Vahanvati, Mr. T. R. Andhyarujina, learned Senior Counsel, whom we had appointed as amicus curiae, Mr. Pallav Sisodia, learned senior counsel for the Dean, KEM Hospital, Mumbai, and Mr. Chinmay Khaldkar, learned counsel for the State of Maharashtra.
2. Euthanasia is one of the most perplexing issues which the courts and legislatures all over the world are facing today. This Court, in this case, is facing the same issue, and we feel like a ship in an uncharted sea, seeking some guidance by the light thrown by the legislations and judicial pronouncements of foreign countries, as well as the submissions of learned counsels before us. The case before us is a writ petition under Article 32 of the Constitution, and has been filed on behalf of the petitioner Aruna Ramachandra Shanbaug by one Ms. Pinki Virani of Mumbai, claiming to be a next friend.

3. It is stated in the writ petition that the petitioner Aruna Ramachandra Shanbaug was a staff Nurse working in King Edward Memorial Hospital, Parel, Mumbai. On the evening of 27th November, 1973 she was attacked by a sweeper in the hospital who wrapped a dog chain around her neck and yanked her back with it. He tried to rape her but finding that she was menstruating, he sodomized her. To immobilize her during this act he twisted the chain around her neck. The next day on 28th November, 1973 at 7.45 a.m. a cleaner found her lying on the floor with blood all over in an unconscious condition. It is alleged that due to strangulation by the dog chain the supply of oxygen to the brain stopped and the brain got damaged. It is alleged that the Neurologist in the Hospital found that she had plantars' extensor, which indicates damage to the cortex or some other part of the brain. She also had brain stem contusion injury with associated cervical cord injury. It is alleged at page 11 of the petition that 36 years have expired since the incident and now Aruna Ramachandra Shanbaug is about 60 years of age. She is featherweight, and her brittle bones could break if her hand or leg are awkwardly caught, even accidentally, under her lighter body. She has stopped menstruating and her skin is now like papier mache' stretched over a skeleton. She is prone to bed sores. Her wrists are twisted inwards. Her teeth had decayed causing her immense pain. She can only be given mashed food, on which she survives. It is alleged that Aruna Ramachandra Shanbaug is in a persistent negetative state (p.v.s.) and virtually a dead person and has no state of awareness, and her brain is virtually dead. She can neither see, nor hear anything nor can she express herself or communicate, in any manner whatsoever. Mashed food is put in her mouth, she is not able to chew or taste any food. She is not even aware that food has been put in her mouth. She is not able to swallow any liquid food, which shows that the food goes down on its own and not because of any effort on her part. The process of digestion goes on in this way as the mashed food passes through her system. However, Aruna is virtually a skeleton. Her excreta and the urine is discharged on the bed itself. Once in a while she is cleaned up but in a short while again she goes back into the same sub-human condition. Judged by any parameter, Aruna cannot be said to be a living person and it is only on account of mashed food which is put into her mouth that there is a facade of life which is totally devoid of any human element. It is alleged that there is not the slightest possibility of any improvement in her condition and her body lies on the bed in the KEM Hospital, Mumbai like a dead animal, and this has been the position for the last 36 years. The prayer of the petitioner is that the respondents be directed to stop feeding Aruna, and let her die peacefully.

4. We could have dismissed this petition on the short ground that under Article 32 of the Constitution of India (unlike Article 226) the petitioner has to prove violation of a fundamental right, and it has been held by the Constitution Bench decision of this Court in Gian Kaur vs. State of Punjab, 1996(2) SCC 648 (vide paragraphs 22 and 23) that the right to life guaranteed by Article 21 of the Constitution does not include the right to die. Hence the petitioner has not shown violation of any of her fundamental rights. However, in view of the importance of the issues involved we decided to go deeper into the merits of the case.

5. Notice had been issued by this Court on 16.12.2009 to all the respondents in this petition. A counter affidavit was earlier filed on behalf of the respondent nos.3 and 4, the Mumbai Municipal Corporation and the Dean, KEM Hospital by Dr. Amar Ramaji Pazare, Professor and Head in the said hospital, stating in paragraph 6 that Aruna accepts the food in normal course and responds by facial expressions. She responds to commands intermittently by making sounds. She makes sounds when she has to pass stool and urine which the nursing staff identifies and attends to by leading her to the toilet. Thus, there was some variance between the allegations in the writ petition and the counter affidavit of Dr. Pazare.

6. Since there was some variance in the allegation in the writ petition and the counter affidavit of Dr. Pazare, we, by our order dated 24 January, 2011 appointed a team of three very distinguished doctors of Mumbai to examine Aruna Shanbaug thoroughly and submit a report about her physical and mental condition. These three doctors were :

(1) Dr. J. V. Divatia, Professor and Head, Department of Anesthesia, Critical Care and Pain at Tata Memorial Hospital, Mumbai;
(2) Dr. Roop Gursahani, Consultant Neurologist at P.D.
Hinduja, Mumbai; and (3) Dr. Nilesh Shah, Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation Medical College and General Hospital.
7. In pursuance of our order dated 24th January, 2011, the team of three doctors above mentioned examined Aruna Shanbuag in KEM Hospital and has submitted us the following report:

" Report of Examination of Ms. Aruna Ramachandra Shanbaug Jointly prepared and signed by
1. Dr. J.V. Divatia (Professor and Head, Department of Anesthesia, Critical Care and Pain, at Tata Memorial Hospital, Mumbai)
2. Dr. Roop Gursahani (Consultant Neurologist at P.D. Hinduja Hospital, Mumbai)
3. Dr. Nilesh Shah (Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation Medical College and General Hospital).
I. Background As per the request of Hon. Justice Katju and Hon. Justice Mishra of the Supreme Court of India, Ms. Aruna Ramachandra Shanbaug, a 60-year-old female patient was examined on 28th January 2011, morning and 3rd February 2011, in the side-room of ward-4, of the K. E. M. Hospital by the team of 3 doctors viz. Dr. J.V. Divatia (Professor and Head, Department of Anesthesia, Critical Care and Pain at Tata Memorial Hospital, Mumbai), Dr. Roop Gursahani (Consultant Neurologist at P.D. Hinduja Hospital, Mumbai) and Dr. Nilesh Shah (Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation Medical College and General Hospital).
This committee was set up because the Court found some variance between the allegations in the writ petition filed by Ms. Pinki Virani on behalf of Aruna Ramchandras Shanbaug and the counter affidavit of Dr. Pazare. This team of three doctors was appointed to examine Aruna Ramachandra Shanbaug thoroughly and give a report to the Court about her physical and mental condition It was felt by the team of doctors appointed by the Supreme Court that longitudinal case history and observations of last 37 years along with findings of examination will give a better, clear and comprehensive picture of the patient's condition.
This report is based on:
1. The longitudinal case history and observations obtained from the Dean and the medical and nursing staff of K. E. M. Hospital,
2. Case records (including nursing records) since January
3. Findings of the physical, neurological and mental status examinations performed by the panel.
4. Investigations performed during the course of this assessment (Blood tests, CT head, Electroencephalogram) II. Medical history Medical history of Ms. Aruna Ramachandra Shanbaug was obtained from the Dean, the Principal of the School of Nursing and the medical and nursing staff of ward-4 who has been looking after her.

It was learnt from the persons mentioned above that

1. Ms. Aruna Ramachandra Shanbaug was admitted in the hospital after she was assaulted and strangulated by a sweeper of the hospital on November 27, 1973.

2. Though she survived, she never fully recovered from the trauma and brain damage resulting from the assault and strangulation.

3. Since last so many years she is in the same bed in the side-room of ward-4.

4. The hospital staff has provided her an excellent nursing care since then which included feeding her by mouth, bathing her and taking care of her toilet needs. The care was of such an exceptional nature that she has not developed a single bed-sore or fracture in spite of her bed-ridden state since 1973.

5. According to the history from them, though she is not very much aware of herself and her surrounding, she somehow recognizes the presence of people around her and expresses her like or dislike by making certain types of vocal sounds and by waving her hands in certain manners. She appears to be happy and smiles when she receives her favorite food items like fish and chicken soup. She accepts feed which she likes but may spit out food which she doesn't like. She was able to take oral feeds till 16th September 2010, when she developed a febrile illness, probably malaria. After that, her oral intake reduced and a feeding tube (Ryle's tube) was passed into her stomach via her nose. Since then she receives her major feeds by the Ryle's tube, and is only occasionally able to accept the oral liquids. Malaria has taken a toll in her physical condition but she is gradually recuperating from it.

6. Occasionally, when there are many people in the room she makes vocal sounds indicating distress. She calms down when people move out of her room. She also seems to enjoy the devotional songs and music which is played in her room and it has calming effect on her.

7. In an annual ritual, each and every batch of nursing students is introduced to Ms. Aruna Ramachandra Shanbaug, and is told that "She was one of us"; "She was a very nice and efficient staff nurse but due to the mishap she is in this bed-ridden state".

8. The entire nursing staff member and other staff members have a very compassionate attitude towards Ms. Aruna Ramachandra Shanbaug and they all very happily and willingly take care of her. They all are very proud of their achievement of taking such a good care of their bed- ridden colleague and feel very strongly that they want to continue to take care of her in the same manner till she succumbs naturally. They do not feel that Ms. Aruna Ramachandra Shanbaug is living a painful and miserable life.

III. Examination IIIa. Physical examination She was conscious, unable to co-operate and appeared to be unaware of her surroundings.

Her body was lean and thin. She appeared neat and clean and lay curled up in the bed with movements of the left hand and made sounds, especially when many people were present in the room.

She was afebrile, pulse rate was 80/min, regular, and good volume. Her blood pressure recorded on the nursing charts was normal. Respiratory rate was 15/min, regular, with no signs of respiratory distress or breathlessness.

There was no pallor, cyanosis, clubbing or icterus. She was edentulous (no teeth).

Skin appeared to be generally in good condition, there were no bed sores, bruises or evidence of old healed bed sores. There were no skin signs suggestive of nutritional deficiency or dehydration.

Her wrists had developed severe contractures, and were fixed in acute flexion. Both knees had also developed contractures (right more than left).

A nasogastric feeding tube (Ryles tube) was in situ. She was wearing diapers.

Abdominal, respiratory and cardiovascular examination was unremarkable.

IIIb. Neurological Examination When examined she was conscious with eyes open wakefulness but without any apparent awareness (see Table 1 for detailed assessment of awareness). From the above examination, she has evidence of intact auditory, visual, somatic and motor primary neural pathways. However no definitive evidence for awareness of auditory, visual, somatic and motor stimuli was observed during our examinations.

There was no coherent response to verbal commands or to calling her name. She did not turn her head to the direction of sounds or voices. When roused she made non-specific unintelligible sounds ("uhhh, ahhh") loudly and continuously but was generally silent when undisturbed.

Menace reflex (blinking in response to hand movements in front of eyes) was present in both eyes and hemifields but brisker and more consistent on the left. Pupillary reaction was normal bilaterally. Fundi could not be seen since she closed her eyes tightly when this was attempted. At rest she seemed to maintain preferential gaze to the left but otherwise gaze was random and undirected (roving) though largely conjugate. Facial movements were symmetric. Gag reflex (movement of the palate in response to insertion of a tongue depressor in the throat) was present and she does not pool saliva. She could swallow both teaspoonfuls of water as well as a small quantity of mashed banana. She licked though not very completely sugar smeared on her lips, suggesting some tongue control.

She had flexion contractures of all limbs and seemed to be incapable of turning in bed spontaneously. There was what appeared to be minimal voluntary movement with the left upper limb (touching her wrist to the eye for instance, perhaps as an attempt to rub it). When examined/disturbed, she seemed to curl up even further in her flexed foetal position. Sensory examination was not possible but she did seem to find passive movement painful in all four limbs and moaned continuously during the examination. Deep tendon reflexes were difficult to elicit elsewhere but were present at the ankles. Plantars were withdrawal/extensor.

Thus neurologically she appears to be in a state of intact consciousness without awareness of self/environment. No cognitive or communication abilities could be discerned. Visual function if present is severely limited. Motor function is grossly impaired with quadriparesis.

IIIc. Mental Status Examination

1. Consciousness, General Appearance, Attitude and Behavior :

Ms. Aruna Ramachandra Shanbaug was resting quietly in her bed, apparently listening to the devotional music, when we entered the room. Though, her body built is lean, she appeared to be well nourished and there were no signs of malnourishment. She appeared neat and clean. She has developed contractures at both the wrist joints and knee joints and so lied curled up in the bed with minimum restricted physical movements.
She was conscious but appeared to be unaware of herself and her surroundings. As soon as she realized the presence of some people in her room, she started making repetitive vocal sounds and moving her hands. This behavior subsided as we left the room. She did not have any involuntary movements. She did not demonstrate any catatonic, hostile or violent behavior.
Her eyes were wide open and from her behavior it appeared that she could see and hear us, as when one loudly called her name, she stopped making vocal sounds and hand movements for a while. She was unable to maintain sustained eye-to eye contact but when the hand was suddenly taken near her eyes, she was able to blink well.
When an attempt was made to feed her by mouth, she accepted a spoonful of water, some sugar and mashed banana. She also licked the sugar and banana paste sticking on her upper lips and swallowed it. Thus, at times she could cooperate when fed.
2. Mood and affect :

It was difficult to assess her mood as she was unable to communicate or express her feelings. She appeared to calm down when she was touched or caressed gently. She did not cry or laugh or expressed any other emotions verbally or non-verbally during the examination period. When not disturbed and observed quietly from a distance, she did not appear to be in severe pain or misery. Only when many people enter her room, she appears to get a bit disturbed about it.
3. Speech and thoughts :

She could make repeated vocal sounds but she could not utter or repeat any comprehensible words or follow and respond to any of the simple commands (such as "show me your tongue"). The only way she expressed herself was by making some sounds. She appeared to have minimal language comprehension or expression.
4. Perception :

She did not appear to be having any perceptual abnormality like hallucinations or illusions from her behavior.
5. Orientation, memory and intellectual capacity :

Formal assessment of orientation in time, place and person, memory of immediate, recent and remote events and her intellectual capacity could not be carried out.
6. Insight :

As she does not appear to be fully aware of herself and her surroundings, she is unlikely to have any insight into her illness.
IV. Reports of Investigations IVa. CT Scan Head (Plain) This is contaminated by movement artefacts. It shows generalized prominence of supratentorial sulci and ventricles suggestive of generalized cerebral atrophy. Brainstem and cerebellum seem normal. Ischemic foci are seen in left centrum semi-ovale and right external capsule. In addition a small left parieto-occipital cortical lesion is also seen and is probably ischemic.

IVb. EEG The dominant feature is a moderately rhythmic alpha frequency at 8-10 Hz and 20-70 microvolts which is widely distributed and is equally prominent both anteriorly and posteriorly. It is not responsive to eye- opening as seen on the video. Beta at 18-25 Hz is also seen diffusely but more prominently anteriorly. No focal or paroxysmal abnormalities were noted IVc. Blood Reports of the hemoglobin, white cell count, liver function tests, renal function tests, electrolytes, thyroid function, Vitamin B12 and 1,25 dihydroxy Vit D3 levels are unremarkable. (Detailed report from KEM hospital attached.) V. Diagnostic impression

1) From the longitudinal case history and examination it appears that Ms. Aruna Ramachandra Shanbaug has developed non-progressive but irreversible brain damage secondary to hypoxic-ischemic brain injury consistent with the known effects of strangulation. Most authorities consider a period exceeding 4 weeks in this condition, especially when due to hypoxic-ischemic injury as confirming irreversibility. In Ms. Aruna's case, this period has been as long as 37 years, making her perhaps the longest survivor in this situation.

2) She meets most of the criteria for being in a permanent vegetative state (PVS). PVS is defined as a clinical condition of unawareness (Table 1) of self and environment in which the patient breathes spontaneously, has a stable circulation and shows cycles of eye closure and opening which may simulate sleep and waking (Table 2). While she has evidence of intact auditory, visual, somatic and motor primary neural pathways, no definitive evidence for awareness of auditory, visual, somatic and motor stimuli was observed during our examinations.

VI. Prognosis Her dementia has not progressed and has remained stable for last many years and it is likely to remain same over next many years. At present there is no treatment available for the brain damage she has sustained. VII. Appendix VII a. Table 1. CLINICAL ASSESSMENT TO ESTABLISH UNAWARENESS (Wade DT, Johnston C. British Med STI MULUS RESPONSE Journal 1999; 319:841-844) DOMAIN OBSERVED AUDITORY AWARENESS Sudden loud noise (clap) Startle present, ceases other movements Meaningful noise (rattled steel tumbler and spoon, film songs Non-specific head and body movements of 1970s) Spoken commands ("close your eyes", "lift left hand ": in Unable to obey commands. No specific or reproducible English, Marathi and Konkani) response VISUAL AWARENESS Bright light to eyes Pupillary responses present Large moving object in front of eyes (bright red torch Tracking movements: present but inconsistent and poorly rattle) reproducible Visual threat (fingers suddenly moved toward eyes) Blinks, but more consistent on left than right Written command (English, Marathi: close your eyes) No response SOMATIC AWARENESS Painful stimuli to limbs (light prick with Wi thdrawal, maximal in left upper limb sharp end of tendon hammer) Painful stimuli to face Distress but no co-ordinated response to remove stimulus Routine sensory stimuli during care (changing position in bed Generalized non specific response presence but no coordinated and feeding) attempt to assist in process MOTOR OUTPUT Spontaneous Non-specific undirected activities. Goal directed - lifting left hand to left side of face, apparently to rub her left eye.

Responsive Non-specific undirected without any goal directed activities. Conclusion:

From the above examination, she has evidence of intact auditory, visual, somatic and motor primary neural pathways. However no definitive evidence for awareness of auditory, visual, somatic and motor stimuli was observed during our examinations.

VIIb. Table 2. Application of Criteria for Vegetative State (Bernat JL. Neurology clinical Practice 2010; 75 (suppl. 1):

Exa mination findings : whether she meets Criteria S33-S38) Criteria (Yes /No / Probably) Unaware of self and environment Yes, Unaware No interaction with others Yes, no interaction No sustained, reproducible or purposeful voluntary Yes , no sustained, reproducible or purposeful behavioural response to visual, auditory, tactile or b ehavioural response, but :

noxious stimuli 1. Resisted examination of fundus

2. Licked sugar off lips No language comprehension or expression Yes, no comprehension No blink to visual threat Blinks, but more consistent on left than right Present sleep wake cycles Yes (according to nurses) Preserved autonomic and hypothalamic function Yes Preserved cranial nerve reflexes Yes Bowel and bladder incontinence Yes VIII. References

1. Multi-Society Task Force on PVS. Medical aspects of the persistent vegetative state. N Engl J Med 1994; 330: 1499-508

2. Wade DT, Johnston C. The permanent vegetative state: practical guidance on diagnosis and management. Brit Med J 1999; 319:841-4

3. Giacino JT, Ashwal S, Childs N, et al. The minimally conscious state : Definition and diagnostic criteria. Neurology 2002;58:349-353

4. Bernat JL. Current controversies in states of chronic unconsciousness. Neurology 2010;75;S33"

8. On 18th February, 2011, we then passed the following order :

"In the above case Dr. J.V. Divatia on 17.02.2011 handed over the report of the team of three doctors whom we had appointed by our order dated 24th January, 2011. He has also handed over a CD in this connection. Let the report as well as the CD form part of the record.
On mentioning, the case has been adjourned to be listed on 2nd March, 2011 at the request of learned Attorney General of India, Mr. T.R. Andhyarujina, learned Senior Advocate, whom we have appointed as amicus curiae in the case as well as Mr. Shekhar Naphade, learned Senior Advocate for the petitioner.
We request the doctors whom we had appointed viz., Dr. J.V. Divatia, Dr. Roop Gurshani and Dr. Nilesh Shah to appear before us on 2nd March, 2011 at 10.30 A.M. in the Court, since it is quite possible that we may like to ask them questions about the report which they have submitted, and in general about their views in connection with euthanasia.

On perusal of the report of the committee of doctors to us we have noted that there are many technical terms which have been used therein which a non-medical man would find it difficult to understand. We, therefore, request the doctors to submit a supplementary report by the next date of hearing (by e-mailing copy of the same two days before the next date of hearing) in which the meaning of these technical terms in the report is also explained.

The Central Government is directed to arrange for the air travel expenses of all the three doctors as well as their stay in a suitable accommodation at Delhi and also to provide them necessary conveyance and other facilities they require, so that they can appear before us on 02.03.2011.

An honorarium may also be given to the doctors, if they so desire, which may be arranged mutually with the learned Attorney General.

The Dean of King Edward Memorial Hospital as well as Ms. Pinky Virani (who claims to be the next friend of the petitioner) are directed to intimate the brother(s)/sister(s) or other close relatives of the petitioner that the case will be listed on 2nd March, 2011 in the Supreme Court and they can put forward their views before the Court, if they so desire. Learned counsel for the petitioner and the Registry of this Court shall communicate a copy of this Order forthwith to the Dean, KEM Hospital. The Dean, KEM Hospital is requested to file an affidavit stating his views regarding the prayer in this writ petition, and also the condition of the petitioner.

Copy of this Order shall be given forthwith to learned Attorney General of India, Mr. Shekhar Naphade and Mr. Andhyarujina, learned Senior Advocates.

Let the matter be listed as the first item on 2nd March, 2011".

9. On 2.3.2011, the matter was listed again before us and we first saw the screening of the CD submitted by the team of doctors along with their report. We had arranged for the screening of the CD in the Courtroom, so that all present in Court could see the condition of Aruna Shanbaug. For doing so, we have relied on the precedent of the Nuremburg trials in which a screening was done in the Courtroom of some of the Nazi atrocities during the Second World War. We have heard learned counsel for the parties in great detail. The three doctors nominated by us are also present in Court. As requested by us, the doctors team submitted a supplementary report before us which states :

Supplement To The Report Of The Medical Examination Of Aruna Ramchandra Shanbaug Jointly prepared and signed by

1. Dr. J.V. Divatia (Professor and Head, Department of Anesthesia, Critical Care and Pain, at Tata Memorial Hospital, Mumbai)

2. Dr. Roop Gursahani (Consultant Neurologist at P.D. Hinduja Hospital, Mumbai)

3. Dr. Nilesh Shah (Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation Medical College and General Hospital).

Mumbai February 26, 2011 INDEX Introduction 3 Terminology 4 Glossary of Technical terms 7 Opinion 11 3 Introduction This document is a supplement to the Report of Examination of Ms. Aruna Ramachandra Shanbaug, dated February 14, 2011.

On perusal of the report, the Hon. Court observed that there were many technical terms which a non-medical man would find it difficult to understand, and requested us to submit a supplementary report in which the meaning of these technical terms in the report is also explained.

We have therefore prepared this Supplement to include a glossary of technical terms used in the earlier Report, and also to clarify some of the terminology related to brain damage. Finally, we have given our opinion in the case of Aruna Shanbaug. Terminology The words coma, brain death and vegetative state are often used in common language to describe severe brain damage. However, in medical terminology, these terms have specific meaning and significance.

Brain death A state of prolonged irreversible cessation of all brain activity, including lower brain stem function with the complete absence of voluntary movements, responses to stimuli, brain stem reflexes, and spontaneous respirations.

Explanation: This is the most severe form of brain damage. The patient is unconscious, completely unresponsive, has no reflex activity from centres in the brain, and has no breathing efforts on his own. However the heart is beating. This patient can only be maintained alive by advanced life support (breathing machine or ventilator, drugs to maintain blood pressure, etc). These patients can be legally declared dead (`brain dead') to allow their organs to be taken for donation.

Aruna Shanbaug is clearly not brain dead.

Coma Patients in coma have complete failure of the arousal system with no spontaneous eye opening and are unable to be awakened by application of vigorous sensory stimulation. Explanation: These patients are unconscious. They cannot be awakened even by application of a painful stimulus. They have normal heart beat and breathing, and do not require advanced life support to preserve life.

Aruna Shanbaug is clearly not in Coma.

The consent form dated 10.5.1995 signed by the appellant states that appellant has been informed that the treatment to be undertaken is "diagnostic and operative laparoscopy. Laparotomy may be needed." The case summary dictated by respondent and written by Dr. Lata Rangan also clearly says "admitted for Hysteroscopy, diagnostic laparoscopy and operative laparoscopy on 10.5.1995." (Note : Hysteroscopy is inspection of uterus by special endoscope and laproscopy is abdominal exploration by special endoscope.)

39.    In this context, we may also refer to a notice dated 5.6.1995 issued by respondent to the appellant through counsel, demanding payment of Rs.39,325/- towards the bill amount. Paras 1, 3, and 4 are relevant which are extracted below :

"1.    You were admitted to our clinic Dr. Manchanda, No.7, Ring Road, Lajpat Nagar, New Delhi for diagnostic and operative laparoscopy and Endometrial biopsy on 10.5.1995." ..

"3.    The findings of laparoscopy were : a very extensive lesion of the endometriosis with pools of blood, extensive adherence involving the tubes of the uterus and ovaries, a chocolate cyst in the right ovary and areas of endometriosis on the surface of the left ovary but no cyst."

"4.    The findings were duly conveyed to Ms. Somi Kohli who was also shown a video recording of the lesion. You and Mrs. Somi Kohli were informed that conservative surgery would be futile and removal of the uterus and more extensive surgery, considering your age and extensive lesion and destruction of the functions of the tubes, was preferable."

This also makes it clear that the appellant was not admitted for conducting hysterectomy or bilateral salpingo-oopherectomy, but only for diagnostic purposes. We may, however, refer to a wrong statement of fact made in the said notice. It states that on 10.5.1995 after conducting a laparoscopic examination, the video-recording of the lesion was shown to appellant's mother, and the respondent informed the appellant and her mother that conservative surgery would be futile and removal of uterus and more extensive surgery was preferable having regard to the more extensive lesion and destruction of the function of the tubes. But this statement cannot be true. The extensive nature of lesion and destruction of the functions obviously became evident only after diagnostic laparoscopy. But after diagnostic laparoscopy and the video recording of the Lesion, there was no occasion for respondent to inform anything to appellant. When the laparoscopy and video recording was made, the appellant was already unconscious. Before she regained consciousness, AH-BSO was performed removing her uterus and ovaries. Therefore, the appellant could not have been informed on 10.5.1995 that conservative surgery would be futile and removal of uterus and extensive surgery was preferable in view of the extensive lesion and destruction of the function of the tubes did not arise.

40.    The admission card makes it clear that the appellant was admitted only for diagnostic and operative laparoscopy. It does not refer to laparotomy. The consent form shows that the appellant gave consent only for diagnostic operative laparoscopy, and laparotomy if needed. Laparotomy is a surgical procedure to open up the abdomen or an abdominal operation. It refers to the operation performed to examine the abdominal organs and aid diagnosis. Many a time, after the diagnosis is made and the problem is identified it may be fixed during the laparotomy itself. In other cases, a subsequent surgery may be required. Laparotomy can no doubt be either a diagnostic or therapeutic. In the former, more often referred to as the exploratory laparotomy, an exercise is undertaken to identify the nature of the disease. In the latter, a therapeutic laparatomy is conducted after the cause has been identified. When a specific operation say hysterectomy or salpingo-oopherectomy is planned, laparotomy is merely the first step of the procedure, followed by the actual specific operation, namely hysterectomy or salpingo- oopherectomy. Depending upon the incision placement, laparotomy gives access to any abdominal organ or space and is the first step in any major diagnostic or therapeutic surgical procedure involving a) the lower port of the digestive tract, b) liver, pancreas and spine, c) bladder, d) female reproductive organs and e) retroperitonium. On the other hand, hysterectomy and slapingo-oopherectomy follow laparotomy and are not themselves referred to as laparotomy. Therefore, when the consent form refers to diagnostic and operative laparoscopy and "laparotomy if needed", it refers to a consent for a definite laparoscopy with a contingent laparotomy if needed. It does not amount to consent for OH-BSO surgery removing the uterus and ovaries/fallopian tubes. If the appellant had consented for a OH-BSO then the consent form would have given consent for "diagnostic and operative laparoscopy. Laparotomy, hysterectomy and bilateral salpingo-oopherectomy, if needed."

41.    On the documentary evidence and the histopathology report the appellant also raised an issue as to whether appellant was suffering from endometriosis at all. She points out that ultra-sound did not disclose endometriosis and the histopathology report does not confirm endometriosis. The respective experts examined on either side have expressed divergent views as to whether appellant was suffering from endometriosis. It may not be necessary to give a definite finding on this aspect, as the real question for consideration is whether appellant gave consent for hysterectomy and bilateral salpingo-oopherectomy and not whether appellant was suffering from endometriosis. Similarly there is divergence of expert opinion as to whether removal of uterus and ovaries was the standard or recognized remedy even if there was endometriosis and whether conservative treatment was an alternative. Here again it is not necessary to record any finding as to which is the proper remedy. It is sufficient to note that there are different modes of treatment favoured by different schools of thought among Gynaecologists.

42.    Respondent contended that the term 'laparotomy' is used in the consent form (by her assistant Dr. Lata Rangan) is equal to or same as hysterectomy. The respondent's contention that 'Laparotomy' refers to and includes hystectomy and bilateral salpingo-oopherectomy cannot be accepted. The following clear evidence of appellant's expert witness -- Dr. Puneet Bedi (CW 1) is not challenged in cross examination : "Laparotomy is opening up of the abdomen which is quite different from hysterectomy. Hysterectomy is a procedure which involves surgical removal of uterus. The two procedures are totally different and consent for each procedure has to be obtained separately."

On the other hand, the evidence of respondent's expert witness (Dr. Sudha Salhan) on this question is evasive and clearly implies laparotomy is not the same as hysterectomy. The relevant portion of her evidence is extracted below :

"Q. As per which medical authority, laparotomy is equal to hysterectomy?

Ans. Consent for laparotomy permits undertaking for such surgical procedure necessary to treat medical conditions including hysterectomy.

Q. I put it to you that the medical practice is to take specific consent for hysterectomy.

Ans.    Whenever we do hysterectomy only, specific consent is obtained."

43.    Medical texts and authorities clearly spell out that Laparotomy is at best the initial step that is necessary for performing hysterectomy or salpingo-oopherectomy. Laparotomy by itself is not hysterectomy or salpingo-oopherectomy. Nor does 'hysterectomy' include salpingo- oopherectomy, in the case of woman who has not attained menopause. Laparotomy does not refer to surgical removal of any vital or reproductive organs. Laparotomy is usually exploratory and once the internal organs are exposed and examined and the disease or ailment is diagnosed, the problem may be addressed and fixed during the course of such laparotomy (as for example, removal of cysts and fulguration of endometric area as stated by respondent herself as a conservative form of treatment). But Laparotomy is never understood as referring to removal of any organ. In medical circles, it is well recognized that a catch all clause giving the surgeon permission to do anything necessary does not give roving authority to remove whatever he fancies may be for the good of the patient. For example, a surgeon cannot construe a consent to termination of pregnancy as a consent to sterilize the patient.

44.    When the oral and documentary evidence is considered in the light of the legal position discussed above while answering questions (i) and

(ii), it is clear that there was no consent by the appellant for conducting hysterectomy and bilateral salpingo-oopherectomy.

45.    The Respondent next contended that the consent given by the appellant's mother for performing hysterectomy should be considered as valid consent for performing hysterectomy and salpingo-oopherectomy. The appellant was neither a minor, nor mentally challenged, nor incapacitated. When a patient is a competent adult, there is no question of someone else giving consent on her behalf. There was no medical emergency during surgery. The appellant was only temporarily unconscious, undergoing only a diagnostic procedure by way of laparoscopy. The respondent ought to have waited till the appellant regained consciousness, discussed the result of the laparoscopic examination and then taken her consent for the removal of her uterus and ovaries. In the absence of an emergency and as the matter was still at the stage of diagnosis, the question of taking her mother's consent for radical surgery did not arise. Therefore, such consent by mother cannot be treated as valid or real consent. Further a consent for hysterectomy, is not a consent for bilateral salpingo - ooperectomy.

46.    There is another facet of the consent given by the appellant's mother which requires to be noticed. The respondent's specific case is that the appellant had agreed for the surgical removal of uterus and ovaries depending upon the extent of the lesion. It is also her specific case that the consent by signing the consent form on 10.5.1995 wherein the treatment is mentioned as "diagnostic and operative laparoscopy. Laparotomy may be needed." includes the AH-BSO surgery for removal of uterus and ovaries. If the term 'laparotomy' is to include hysterectomy and salpingo-oopherectomy as contended by the respondent and there was a specific consent by the appellant in the consent form signed by her on 10.5.1995, there was absolutely no need for the respondent to send word through her assistant Dr. Lata Rangan to get the consent of appellant's mother for performing hysterectomy under general anesthesia. The very fact that such consent was sought from appellant's mother for conducting hysterectomy is a clear indication that there was no prior consent for hysterectomy by the appellant.

47.    We may, therefore, summarize the factual position thus :

(i) On 9.5.1995 there was no confirmed diagnosis of endometriosis. The OPD slip does not refer to a provisional diagnosis of endometriosis on the basis of personal examination. Though there is a detailed reference to the findings of ultrasound in the entry relating to 9.5.1995 in the OPD slip, there is no reference to endometriosis which shows that ultrasound report did not show endometriosis. In fact, ultra-sound may disclose fibroids, chocolate cyst or other abnormality which may indicate endometriosis, but cannot by itself lead to a diagnosis of endometriosis. This is evident from the evidence of CW1, RW1 and RW2 and recognized text books. In fact respondent's expert Dr. Sudha Salhan admits in her cross examination that endometriosis can only be suspected but not diagnosed by ultrasound and it can be confirmed only by laparoscopy. Even according to respondent, endometriosis was confirmed only by laparoscopy. [Books on "Gynaecology' clearly state : "The best means to diagnose endometriosis is by direct visualization at laparoscopy or laparotomy, with histological confirmation where uncertainty persists."] Therefore the claim of respondent that she had discussed in detail about endometriosis and the treatment on 9.5.1995 on the basis of her personal examination and ultra-sound report appears to be doubtful.

(ii)    The appellant was admitted only for diagnostic laparoscopy (and at best for limited surgical treatment that could be made by laproscopy). She was not admitted for hysterectomy or bilateral salpingo-oopherectomy.

(iii)    There was no consent by appellant for hysterectomy or bilateral salpingo-oopherectomy. The words "Laparotomy may be needed" in the consent form dated 10.5.1995 can only refer to therapeutic procedures which are conservative in nature (as for example removal of chocolate cyst and fulguration of endometric areas, as stated by respondent herself as a choice of treatment), and not radical surgery involving removal of important organs.

48.    We find that the Commission has, without any legal basis, concluded that "the informed choice has to be left to the operating surgeon depending on his/her discretion, after assessing the damage to the internal organs, but subject to his/her exercising care and caution". It also erred in construing the words "such medical treatment as is considered necessary for me for." in the consent form as including surgical treatment by way of removal or uterus and ovaries. The Commission has also observed : "whether the uterus should have been removed or not or some other surgical procedure should have been followed are matters to be left to the discretion of the performing surgeon, as long as the surgeon does the work with adequate care and caution". This proceeds on the erroneous assumption that where the surgeon has shown adequate care and caution in performing the surgery, the consent of the patient for removal of an organ is unnecessary. The Commission failed to notice that the question was not about the correctness of the decision to remove the uterus and ovaries, but the failure to obtain the consent for removal of those important organs. There was a also faint attempt on the part of the respondent's counsel to contend that what were removed were not 'vital' organs and having regard to the advanced age of the appellant, as procreation was not possible, uterus and ovaries were virtually redundant organs. The appellant's counsel seriously disputes the position and contends that procreation was possible even at the age of 44 years. Suffice it to say that for a woman who has not married and not yet reached menopause, the reproductive organs are certainly important organs. There is also no dispute that removal of ovaries leads to abrupt menopause causing hormonal imbalance and consequential adverse effects.

Re : Question Nos.(iv) and (v) :

49.    The case of the appellant is that she was not suffering from endometriosis and therefore, there was no need to remove the uterus and ovaries. In this behalf, she examined Dr. Puneet Bedi (Obstetrician and Gynaecologist) who gave hormone therapy to appellant for about two years prior to his examination in 2002. He stated that the best method to diagnose endometriosis is diagnostic laparoscopy; that the presence of endometrial tissue anywhere outside the uterus is called Endometriosis; that the Histopathology report did not confirm endometriosis in the case of appellant; and that the mode of treatment for endometriosis would depend on the existing extent of the disease. He also stated that removal of uterus results in abrupt menopause. In natural menopause, which is a slow process, the body gets time to acclimatize to the low level of hormones gradually. On the other hand when the ovaries are removed, there is an abrupt stoppage of natural hormones and therefore Hormone Replacement Therapy is necessary to make up the loss of natural hormones. Hormone Replacement Therapy is also given even when there is a natural menopause. But hormone replacement therapy has side effects and complications. He also stated that on the basis of materials available on the file, he was of the view that Hysterectomy was not called for immediately. But if endometriosis had been proven from history and following diagnostic laparoscopy, hysterectomy could be considered as a last resort if all other medical methods failed. What is relevant from the evidence of Dr. Puneet Bedi, is that he does not say that hysterectomy is not the remedy for endometriosis, but only that it is a procedure that has to be considered as a last resort.

50.    On the other hand, the respondent who is herself a experienced Obstetrician and Gynaecologist has given detailed evidence, giving the reasons for diagnosing the problem of appellant as endometriosis and has referred to in detail, the need for the surgery. She stated that having regard to the medical condition of complainant, her decision to perform hysterectomy was medically correct. The complainant wanted a cure for her problem and the AH-BSO surgery provided her such cure, apart from protecting her against any future damage to intestines, bladder and ureter. She explained that if the uterus and ovaries had not been removed there was a likelihood of lesion extending to the intestines causing bleedings, fibrosis and narrowing of the gut; the lesion could also go to the surface of the bladder penetrating the wall and causing haematuria and the ureter could be damaged due to fibrosis leading to damage of the kidney; there was also a chance of development of cancer also. She also pointed out that the complainant being 44 years of age, was in the pre-menopausal period and had menorrhagia which prevented regular ovulation which was necessary for pregnancy; that endometriosis also prevented fertilization and produced reaction in the pelvis which increased lymphocytes and macrophages which destroy the ova and sperm; and that the state of bodily health did not depend upon the existence of uterus and ovaries.

51.    The respondent also examined Dr. Sudha Salhan, Professor and Head of Department (Obstetrics and Gynaecology) and President of the Association of Obstetricians and Gynaecologists of Delhi. Having seen the records relating to appellant including the record pertaining to clinical and ultra-sound examinations, she was of the view that the treatment given to appellant was correct and appropriate to appellant's medical condition. She stated that the treatment is determined by severity of the disease and hysterectomy was not an unreasonable option as there was no scope left for fecundability in a woman aged 44 years suffering from endometriosis. She also stated that the histopathology report dated 15.5.1995 confirmed the diagnosis of endometriosis made by respondent. She also stated that she saw video-tape of the laparoscopic examination and concurred that the opinion of respondent that the lesion being extensive conservation surgery was not possible and the problem could effectively be addressed only by more extensive surgery that is removal of the uterus and ovaries. She also stated that the presence of chocolate cyst was indicative of endometriosis. She also stated that medication merely suppresses endometriosis and the definitive treatment was surgical removal of the uterus and both the ovaries. She also stated that hysterectomy is done when uterus comes out from a prolapse and the woman is elderly, or when there is a cancer of the uterus, or when there are massive fibroids or when a severe grade of endometriosis along with ovaries or in cases of malignancy or the cancer of the ovaries.

52.    The evidence therefore demonstrates that on laparoscopic examination, respondent was satisfied that appellant was suffering from endometriosis. The evidence also demonstrates that there is more than one way of treating endometriosis. While one view favours conservative treatment with hysterectomy as a last resort, the other favours hysterectomy as a complete and immediate cure. The age of the patient, the stage of endometriosis among others will be determining factors for choosing the method of treatment. The very suggestion made by appellant's counsel to the expert witness Dr. Sudha Salhan that worldwide studies show that most hysterectomies are conducted unnecessarily by Gynecologists demonstrates that it is considered as a favoured treatment procedure among medical fraternity, offering a permanent cure. Therefore respondent cannot be held to be negligent, merely because she chose to perform radical surgery in preference to conservative treatment. This finding however has no bearing on the issue of consent which has been held against the respondent. The correctness or appropriateness of the treatment procedure, does not make the treatment legal, in the absence of consent for the treatment.

53.    It is true that the appellant has disputed the respondent's finding that she was suffering from endometriosis. The histopathology report also does not diagnose any endometriosis. The expert witness examined on behalf of the appellant has also stated that there was no evidence that the appellant was suffering from endometriosis. On the other hand the respondent has relied on some observations of the histopathology report and on her own observations which has been recorded in the case summary to conclude that the appellant was suffering from endometriosis. The evidence shows that the respondent having found evidence of endometriosis, proceeded on the basis that removal of uterus and ovaries was beneficial to the health of the appellant having regard to the age of the appellant and condition of the appellant to provide a permanent cure to her ailment, though not authorized to do so. On a overall consideration of the evidence, we are not prepared to accept the claim of appellant that the respondent falsely invented a case that the appellant was suffering from endometriosis to cover up some negligence on her part in conducting the diagnostic/operative laparoscopy or to explain the unauthorized and unwarranted removal of uterus and ovaries.

Re : Question No.(vi) :

54.    In view of our finding that there was no consent by the appellant for performing hysterectomy and salpingo-oopherectomy, performance of such surgery was an unauthorized invasion and interference with appellant's body which amounted to a tortious act of assault and battery and therefore a deficiency in service. But as noticed above, there are several mitigating circumstances. The respondent did it in the interest of the appellant. As the appellant was already 44 years old and was having serious menstrual problems, the respondent thought that by surgical removal of uterus and ovaries she was providing permanent relief. It is also possible that the respondent thought that the appellant may approve the additional surgical procedure when she regained consciousness and the consent by appellant's mother gave her authority. This is a case of respondent acting in excess of consent but in good faith and for the benefit of the appellant. Though the appellant has alleged that she had to undergo Hormone Therapy, no other serious repercussions is made out as a result of the removal. The appellant was already fast approaching the age of menopause and in all probability required such Hormone Therapy. Even assuming that AH-BSO surgery was not immediately required, there was a reasonable certainty that she would have ultimately required the said treatment for a complete cure. On the facts and circumstances, we consider that interests of justice would be served if the respondent is denied the entire fee charged for the surgery and in addition, directed to pay Rs.25,000 as compensation for the unauthorized AH-BSO surgery to the appellant.

55.    We accordingly allow this appeal and set aside the order of the Commission and allow the appellant's claim in part. If the respondent has already received the bill amount or any part thereof from the appellant (either by executing the decree said to have been obtained by her or otherwise), the respondent shall refund the same to the appellant with interest at the rate of 10% per annum from the date of payment till the date of re-payment. The Respondent shall pay to the appellant a sum of Rs.25,000/- as compensation with interest thereon at the rate of 10% per annum from 19.11.2003 (the date of the order of Commission) till date of payment. The appellant will also be entitled to costs of Rs.5,000 from the respondent.

21.    Canterbury (supra) explored the rationale of a Doctor's duty to reasonably inform a patient as to the treatment alternatives available and the risk incidental to them, as also the scope of the disclosure requirement and the physician's privileges not to disclose. It laid down the 'reasonably prudent patient test' which required the doctor to disclose all material risks to a patient, to show an 'informed consent'. It was held : "True consent to what happens to one's self is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each. The average patient has little or no understanding of the medical arts, and ordinarily has only his physician to whom he can look for enlightenment with which to reach an intelligent decision. From these almost axiomatic considerations springs the need, and in turn the requirement, of a reasonable divulgence by physician to patient to make such a decision possible.

Just as plainly, due care normally demands that the physician warn the patient of any risks to his well being which contemplated therapy may involve.

The context in which the duty of risk-disclosure arises is invariably the occasion for decision as to whether a particular treatment procedure is to be undertaken. To the physician, whose training enables a self- satisfying evaluation, the answer may seem clear, but it is the prerogative of the patient, not the physician, to determine for himself the direction in which his interests seem to lie. To enable the patient to chart his course understandably, some familiarity with the therapeutic alternatives and their hazards becomes essential A reasonable revelation in these respects is not only a necessity but, as we see it, is as much a matter of the physician's duty. It is a duty to warn of the dangers lurking in the proposed treatment, and that is surely a facet of due care. It is, too, a duty to impart information which the patient has every right to expect. The patient's reliance upon the physician is a trust of the kind which traditionally has exacted obligations beyond those associated with arms length transactions. His dependence upon the physician for information affecting his well- being, in terms of contemplated treatment, is well-nigh abject. we ourselves have found "in the fiducial qualities of (the physician- patient) relationship the physician's duty to reveal to the patient that which in his best interests it is important that he should know." We now find, as a part of the physician's overall obligation to the patient, a similar duty of reasonable disclosure of the choices with respect to proposed therapy and the dangers inherently and potentially involve.

In our view, the patient's right of self-decision shapes the boundaries of the duty to reveal. That right can be effectively exercised only if the patient possesses enough information to enable an intelligent choice. The scope of the physician's communications to the patient, then, must be measured by the patient's need, and that need is the information material to the decision. Thus the test for determining whether a particular peril must be divulged is its materially to the patient's decision : all risks potentially affecting the decision must be unmasked. "

It was further held that a risk is material 'when a reasonable person, in what the physician knows or should know to be the patient's position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy'. The doctor, therefore, is required to communicate all inherent and potential hazards of the proposed treatment, the alternatives to that treatment, if any, and the likely effect if the patient remained untreated. This stringent standard of disclosure was subjected to only two exceptions : (i) where there was a genuine emergency, e.g. the patient was unconscious; and (ii) where the information would be harmful to the patient, e.g. where it might cause psychological damage, or where the patient would become so emotionally distraught as to prevent a rational decision. It, however, appears that several States in USA have chosen to avoid the decision in Canterbury by enacting legislation which severely curtails operation of the doctrine of informed consent.

22.    The stringent standards regarding disclosure laid down in Canterbury, as necessary to secure an informed consent of the patient, was not accepted in the English courts. In England, standard applicable is popularly known as the Bolam Test, first laid down in Bolam v. Friern Hospital Management Committee - [1957] 2 All.E.R. 118. McNair J., in a trial relating to negligence of a medical practitioner, while instructing the Jury, stated thus :

"(i) A doctor is not negligent, if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.  Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion.

(ii)    When a doctor dealing with a sick man strongly believed that the only hope of cure was submission to a particular therapy, he could not be criticized if, believing the danger involved in the treatment to be minimal, did not stress them to the patient.

(iii)    In order to recover damages for failure to give warning the plaintiff must show not only that the failure was negligent but also that if he had been warned he would not have consented to the treatment.

23.    Hunter v. Hanley (1955 SC 200), a Scottish case is also worth noticing. In that decision, Lord President Clyde held : "In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care."

He also laid down the following requirements to be established by a patient to fasten liability on the ground of want of care or negligence on the part of the doctor :

"To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care."

24.    In Sidaway v. Bethlem Royal Hospital Governors & Ors. [1985] 1 All ER 643, the House of Lords, per majority, adopted the Bolam test, as the measure of doctor's duty to disclose information about the potential consequences and risks of proposed medical treatment. In that case the defendant, a surgeon, warned the plaintiff of the possibility of disturbing a nerve root while advising an operation on the spinal column to relieve shoulder and neck pain. He did not however mention the possibility of damage to the spinal cord. Though the operation was performed without negligence, the plaintiff sustained damage to spinal cord resulting in partial paralysis. The plaintiff alleged that defendant was negligent in failing to inform her about the said risk and that had she known the true position, she would not have accepted the treatment. The trial Judge and Court of Appeal applied the Bolam test and concluded that the defendant had acted in accordance with a practice accepted as proper by a responsible body of medical opinion, in not informing the plaintiff of the risk of damage to spinal cord. Consequently, the claim for damages was rejected. The House of Lords upheld the decision of the Court of Appeal that the doctrine of informed consent based on full disclosure of all the facts to the patient, was not the appropriate test of liability for negligence, under English law. The majority were of the view that the test of liability in respect of a doctor's duty to warn his patient of risks inherent in treatment recommended by him was the same as the test applicable to diagnosis and treatment, namely, that the doctor was required to act in accordance with the practice accepted at the time as proper by a responsible body of medical opinion. Lord Diplock stated: "In English jurisprudence the doctor's relationship with his patient which gives rise to the normal duty of care to exercise his skill and judgment to improve the patient's health in any particular respect in which the patient has sought his aid has hitherto been treated as a single comprehensive duty covering all the ways in which a doctor is called on to exercise his skill and judgment in the improvement of the physical or mental condition of the patient for which his services either as a general practitioner or as a specialist have been engaged. This general duty is not subject to dissection into a number of component parts to which different criteria of what satisfy the duty of care apply, such as diagnosis, treatment and advice (including warning of any risks of something going wrong however skillfully the treatment advised is carried out). The Bolam case itself embraced failure to advise the patient of the risk involved in the electric shock treatment as one of the allegations of negligence against the surgeon as well as negligence in the actual carrying out of treatment in which that risk did result in injury to the patient. The same criteria were applied to both these aspects of the surgeon's duty of care. In modern medicine and surgery such dissection of the various things a doctor has to do in the exercise of his whole duty of care owed to his patient is neither legally meaningful nor medically practicable. To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor's comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way. The Bolam test should be applied."

Lord Bridge stated :

"I recognize the logical force of the Canterbury doctrine, proceeding from the premise that the patient's right to make his own decision must at all costs be safeguarded against the kind of medical paternalism which assumes that 'doctor knows best'. But, with all respect, I regard the doctrine as quite impractical in application for three principal reasons. First, it gives insufficient weight to the realities of the doctor/patient relationship. A very wide variety of factors must enter into a doctor's clinical judgment not only as to what treatment is appropriate for a particular patient, but also as to how best to communicate to the patient the significant factors necessary to enable the patient to make an informed decision whether to undergo the treatment. The doctor cannot set out to educate the patient to his own standard of medical knowledge of all the relevant factors involved. He may take the view, certainly with some patients, that the very fact of his volunteering, without being asked, information of some remote risk involved in the treatment proposed, even though he described it as remote, may lead to that risk assuming an undue significance in the patient's calculations. Second, it would seem to me quite unrealistic in any medical negligence action to confine the expert medical evidence to an explanation of the primary medical factors involved and to deny the court the benefit of evidence of medical opinion and practice on the particular issue of disclosure which is under consideration. Third, the objective test which Canterbury propounds seems to me to be so imprecise as to be almost meaningless. If it is to be left to individual judges to decide for themselves what "a reasonable person in the patient's position' would consider a risk of sufficient significance that he should be told about it, the outcome of litigation in this field is likely to be quite unpredictable."

Lord Bridge however made it clear that when questioned specifically by the patient about the risks involved in a particular treatment proposed, the doctor's duty is to answer truthfully and as fully as the questioner requires. He further held that remote risk of damage (referred to as risk at 1 or 2%) need not be disclosed but if the risk of damage is substantial (referred to as 10% risk), it may have to be disclosed. Lord Scarman, in minority, was inclined to adopt the more stringent test laid down in Canterbury.

25.    In India, Bolam test has broadly been accepted as the general rule. We may refer three cases of this Court. In Achutrao Haribhau Khodwa vs. State of Maharastra - 1996 (2) SCC 634, this Court held : "The skill of medical practitioners differs from doctor to doctor. The nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence..In cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable."

In Vinitha Ashok vs. Lakshmi Hospital - 2001 (8) SCC 731, this Court after referring to Bolam, Sidaway and Achutrao, clarified: "A doctor will be liable for negligence in respect of diagnosis and treatment in spite of a body of professional opinion approving his conduct where it has not been established to the court's satisfaction that such opinion relied on is reasonable or responsible. If it can be demonstrated that the professional opinion is not capable of withstanding the logical analysis, the court would be entitled to hold that the body of opinion is not reasonable or responsible.

In Indian Medical Association vs. V. P. Shantha - 1995 (6) SCC 651, this Court held :

"The approach of the courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services".

Neither Achutrao nor Vinitha Ashok referred to the American view expressed in Canterbury.

26.    In India, majority of citizens requiring medical care and treatment fall below the poverty line. Most of them are illiterate or semi-literate. They cannot comprehend medical terms, concepts, and treatment procedures. They cannot understand the functions of various organs or the effect of removal of such organs. They do not have access to effective but costly diagnostic procedures. Poor patients lying in the corridors of hospitals after admission for want of beds or patients waiting for days on the roadside for an admission or a mere examination, is a common sight. For them, any treatment with reference to rough and ready diagnosis based on their outward symptoms and doctor's experience or intuition is acceptable and welcome so long as it is free or cheap; and whatever the doctor decides as being in their interest, is usually unquestioningly accepted. They are a passive, ignorant and uninvolved in treatment procedures. The poor and needy face a hostile medical environment - inadequacy in the number of hospitals and beds, non-availability of adequate treatment facilities, utter lack of qualitative treatment, corruption, callousness and apathy. Many poor patients with serious ailments (eg. heart patients and cancer patients) have to wait for months for their turn even for diagnosis, and due to limited treatment facilities, many die even before their turn comes for treatment. What choice do these poor patients have? Any treatment of whatever degree, is a boon or a favour, for them. The stark reality is that for a vast majority in the country, the concepts of informed consent or any form of consent, and choice in treatment, have no meaning or relevance.

The position of doctors in Government and charitable hospitals, who treat them, is also unenviable. They are overworked, understaffed, with little or no diagnostic or surgical facilities and limited choice of medicines and treatment procedures. They have to improvise with virtual non-existent facilities and limited dubious medicines. They are required to be committed, service oriented and non-commercial in outlook. What choice of treatment can these doctors give to the poor patients? What informed consent they can take from them?

27.    On the other hand, we have the Doctors, hospitals, nursing homes and clinics in the private commercial sector. There is a general perception among the middle class public that these private hospitals and doctors prescribe avoidable costly diagnostic procedures and medicines, and subject them to unwanted surgical procedures, for financial gain. The public feel that many doctors who have spent a crore or more for becoming a specialist, or nursing homes which have invested several crores on diagnostic and infrastructure facilities, would necessarily operate with a purely commercial and not service motive; that such doctors and hospitals would advise extensive costly treatment procedures and surgeries, where conservative or simple treatment may meet the need; and that what used to be a noble service oriented profession is slowly but steadily converting into a purely business.

28.    But unfortunately not all doctors in government hospitals are paragons of service, nor fortunately, all private hospitals/doctors are commercial minded. There are many a doctor in government hospitals who do not care about patients and unscrupulously insist upon 'unofficial' payment for free treatment or insist upon private consultations. On the other hand, many private hospitals and Doctors give the best of treatment without exploitation, at a reasonable cost, charging a fee, which is resonable recompense for the service rendered. Of course, some doctors, both in private practice or in government service, look at patients not as persons who should be relieved from pain and suffering by prompt and proper treatment at an affordable cost, but as potential income-providers/ customers who can be exploited by prolonged or radical diagnostic and treatment procedures. It is this minority who bring a bad name to the entire profession.

29.    Health care (like education) can thrive in the hands of charitable institutions. It also requires more serious attention from the State. In a developing country like ours where teeming millions of poor, downtrodden and illiterate cry out for health-care, there is a desperate need for making health-care easily accessible and affordable. Remarkable developments in the field of medicine might have revolutionalized health care. But they cannot be afforded by the common man. The woes of non-affording patients have in no way decreased. Gone are the days when any patient could go to a neighbourhood general practitioner or a family doctor and get affordable treatment at a very reasonable cost, with affection, care and concern. Their noble tribe is dwindling. Every Doctor wants to be a specialist. The proliferation of specialists and super specialists, have exhausted many a patient both financially and physically, by having to move from doctor to doctor, in search of the appropriate specialist who can identify the problem and provide treatment. What used to be competent treatment by one General Practitioner has now become multi-pronged treatment by several specialists. Law stepping in to provide remedy for negligence or deficiency in service by medical practioners, has its own twin adverse effects. More and more private doctors and hospitals have, of necessity, started playing it safe, by subjecting or requiring the patients to undergo various costly diagnostic procedures and tests to avoid any allegations of negligence, even though they might have already identified the ailment with reference to the symptoms and medical history with 90% certainly, by their knowledge and experience. Secondly more and more doctors particularly surgeons in private practice are forced to cover themselves by taking out insurance, the cost of which is also ultimately passed on to the patient, by way of a higher fee. As a consequence, it is now common that a comparatively simple ailment, which earlier used to be treated at the cost of a few rupees by consulting a single doctor, requires an expense of several hundred or thousands on account of four factors : (i) commercialization of medical treatment; (ii) increase in specialists as contrasted from general practitioners and the need for consulting more than one doctor; (iii) varied diagnostic and treatment procedures at high cost; and (iv) need for doctors to have insurance cover. The obvious, may be naove, answer to unwarranted diagnostic procedures and treatment and prohibitive cost of treatment, is an increase in the participation of health care by the state and charitable institutions. An enlightened and committed medical profession can also provide a better alternative. Be that as it may. We are not trying to intrude on matters of policy, nor are we against proper diagnosis or specialisation. We are only worried about the enormous hardship and expense to which the common man is subjected, and are merely voicing the concern of those who are not able to fend for themselves. We will be too happy if what we have observed is an overstatement, but our intuition tells us that it is an understatement.

30.    What we are considering in this case, is not the duties or obligations of doctors in government charitable hospitals where treatment is free or on actual cost basis. We are concerned with doctors in private practice and hospitals and nursing homes run commercially, where the relationship of doctors and patients are contractual in origin, the service is in consideration of a fee paid by the patient, where the contract implies that the professional men possessing a minimum degree of competence would exercise reasonable care in the discharge of their duties while giving advice or treatment.

31.    There is a need to keep the cost of treatment within affordable limits. Bringing in the American concepts and standards of treatment procedures and disclosure of risks, consequences and choices will inevitably bring in higher cost-structure of American medical care. Patients in India cannot afford them. People in India still have great regard and respect for Doctors. The Members of medical profession have also, by and large, shown care and concern for the patients. There is an atmosphere of trust and implicit faith in the advice given by the Doctor. The India psyche rarely questions or challenges the medical advice. Having regard to the conditions obtaining in India, as also the settled and recognized practices of medical fraternity in India, we are of the view that to nurture the doctor-patient relationship on the basis of trust, the extent and nature of information required to be given by doctors should continue to be governed by the Bolam test rather than the 'reasonably prudential patient' test evolved in Canterbury. It is for the doctor to decide, with reference to the condition of the patient, nature of illness, and the prevailing established practices, how much information regarding risks and consequences should be given to the patients, and how they should be couched, having the best interests of the patient. A doctor cannot be held negligent either in regard to diagnosis or treatment or in disclosing the risks involved in a particular surgical procedure or treatment, if the doctor has acted with normal care, in accordance with a recognised practices accepted as proper by a responsible body of medical men skilled in that particular field, even though there may be a body of opinion that takes a contrary view. Where there are more than one recognized school of established medical practice, it is not negligence for a doctor to follow any one of those practices, in preference to the others.

32.    We may now summarize principles relating to consent as follows :

(i)    A doctor has to seek and secure the consent of the patient before commencing a 'treatment' (the term 'treatment' includes surgery also). The consent so obtained should be real and valid, which means that : the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.

(ii)    The 'adequate information' to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment as to whether he should submit himself to the particular treatment or not. This means that the Doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.

(iii)    Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery. The only exception to this rule is where the additional procedure though unauthorized, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorized procedure until patient regains consciousness and takes a decision.

(iv)    There can be a common consent for diagnostic and operative procedures where they are contemplated. There can also be a common consent for a particular surgical procedure and an additional or further procedure that may become necessary during the course of surgery.

(v)    The nature and extent of information to be furnished by the doctor to the patient to secure the consent need not be of the stringent and high degree mentioned in Canterbury but should be of the extent which is accepted as normal and proper by a body of medical men skilled and experienced in the particular field. It will depend upon the physical and mental condition of the patient, the nature of treatment, and the risk and consequences attached to the treatment.

33.    We may note here that courts in Canada and Australia have moved towards Canterbury standard of disclosure and informed consent - vide Reibl v. Hughes (1980) 114 DLR (3d.) 1 decided by the Canadian Supreme Court and Rogers v. Whittaker - 1992 (109) ALR 625 decided by the High Court of Australia. Even in England there is a tendency to make the doctor's duty to inform more stringent than Bolam's test adopted in Sidaway. Lord Scarman's minority view in Sidaway favouring Canterbury, in course of time, may ultimately become the law in England. A beginning has been made in Bolitho v. City and Hackney HA

- 1998 1 AC 232 and Pearce v. United Bristol Healthcare NHS Trust 1998 (48) BMLR 118. We have however, consciously preferred the 'real consent' concept evolved in Bolam and Sidaway in preference to the 'reasonably prudent patient test' in Canterbury, having regard to the ground realities in medical and health-care in India. But if medical practitioners and private hospitals become more and more commercialized, and if there is a corresponding increase in the awareness of patient's rights among the public, inevitably, a day may come when we may have to move towards Canterbury. But not for the present.

Re : Question No.(iii)

34.    'Gynaecology' (second edition) edited by Robert W. Shah, describes 'real consent' with reference to Gynaecologists (page 867 et seq) as follows :

"An increasingly important risk area for all doctors is the question of consent. No-one may lay hands on another against their will without running the risk of criminal prosecution for assault and, if injury results, a civil action for damages for trespass or negligence. In the case of a doctor, consent to any physical interference will readily be implied; a woman must be assumed to consent to a normal physical examination if she consults a gynaecologist, in the absence of clear evidence of her refusal or restriction of such examination. The problems arise when the gynaecologist's intervention results in unfortunate side effects or permanent interference with a function, whether or not any part of the body is removed. For example, if the gynaecologist agrees with the patient to perform a hysterectomy and removes the ovaries without her specific consent, that will be a trespass and an act of negligence. The only available defence will be that it was necessary for the life of the patient to proceed at once to remove the ovaries because of some perceived pathology in them.

What is meant by consent? The term 'informed consent' is often used, but there is no such concept in English law. The consent must be real : that is to say, the patient must have been given sufficient information for her to understand the nature of the operation, its likely effects, and any complications which may arise and which the surgeon in the exercise of his duty to the patient considers she should be made aware of; only then can she reach a proper decision. But the surgeon need not warn the patient of remote risks, any more than an anaesthetist need warn the patient that a certain small number of those anaesthetized will suffer cardiac arrest or never recover consciousness. Only where there is a recognized risk, rather than a rare complication, is the surgeon under an obligation to warn the patient of that risk. He is not under a duty to warn the patient of the possible results of hypothetical negligent surgery. ..

In advising an operation, therefore, the doctor must do so in the way in which a competent gynaecologist exercising reasonable skill and care in similar circumstances would have done. In doing this he will take into account the personality of the patient and the importance of the operation to her future well being. It may be good practice not to warn a very nervous patient of any possible complications if she requires immediate surgery for, say, a malignant condition. The doctor must decide how much to say to her taking into account his assessment of her personality, the questions she asks and his view of how much she understands. If the patient asks a direct question, she must be given a truthful answer.  To take the example of hysterectomy : although the surgeon will tell the patient that it is proposed to remove her uterus and perhaps her ovaries, and describe what that will mean for her future well being (sterility, premature menopause), she will not be warned of the possibility of damage to the ureter, vesicovaginal fistula, fatal haemorrhage or anaesthetic death."

35.    The specific case of the appellant was that she got herself admitted on 10.5.1995 only for a diagnostic laparoscopy; that she was not informed either on 9th or 10th that she was suffering from endometriosis or that her reproductive organs had to be removed to cure her from the said disease; that her consent was not obtained for the removal of her reproductive organs; and that when she was under general anaesthesia for diagnostic laparoscopy, respondent came out of the operation theatre and informed her aged mother that the patient was bleeding profusely which might endanger her life and hysterectomy was the only option to save her life, and took her consent.

36.    The respondent on the other hand contends that on the basis of clinical and ultra sound examination on 9.5.1995, she had made a provisional diagnosis of endometriosis; that on same day, she informed the complainant and her mother separately, that she would do a diagnostic laparoscopy on the next day and if the endometric lesion was found to be mild or moderate, she will adopt a conservative treatment by operative laparoscopy, but if the lesion was extensive then considering her age and extent of lesion and likelihood of destruction of the functions of the tube, a laparotomy would be done; that the appellant was admitted to the hospital for diagnostic and operative laparoscopy and laparotomy and appellant's consent was obtained for such procedures; that the decision to operate and remove the uterus and ovaries was not sudden, nor on account of any emergent situation developing during laproscopy; and that the radical surgery was authorized, as it was preceded by a valid consent. She also contends that as the appellant wanted a permanent cure, the decision to conduct a hysterectomy was medically correct and the surgical procedure in fact cured the appellant and saved her intestines, bladder and ureter being damaged due to extension of the lesion. She had also tried to justify the surgical removal of the uterus and ovaries, with reference to the age and medical condition of the complainant.

37.    The summery of the surgical procedure (dictated by respondent and handwritten by her assistant Dr. Lata Rangan) furnished to the appellant also confirms that no emergency or life threatening situation developed during laparoscopy. This is reiterated in the evidence of respondent and Dr. Lata Rangan. In her affidavit dated 16.2.2002 filed by way of examination-in-chief, the respondent stated :

"15.    The laproscopic examination revealed a frozen pelvis and considering the extent of the lesion it was decided that conservative surgery was not advisable and the nature of the problem required for its cure hysterectomy.

16.    When the Deponent decided to perform hysterectomy she told Dr. Lata to intimate the mother of Ms. Samira Kohli of the fact that hysterectomy was going to be performed on her. No complications had arisen in the operation theatre and the procedure being performed was in terms of the consent given by Ms. Samira Kohli herself."

In her affidavit dated 16.2.2002 filed by way of examination-in-chief, Dr. Lata Rangan stated:

"14.    I was in the Operation Theatre alongwith Dr. Prabha Manchanda. The laproscopic examination revealed a frozen pelvis and considering the extent of the lesion it was decided that conservative surgery was not possible and that the nature of the problem required performance of hysterectomy.

15.    When it was decided to perform hysterectomy the deponent was told by Dr. Prabha Manchanda to intimate the mother of Ms. Samira Kohli of the fact that hysterectomy was now going to be performed on her. No complications had arisen in the Operation Theatre and the procedure conducted therein was in terms of the consent given by Ms. Samira Kohli herself. I got the mother to sign the Form too so that the factum of intimation was duly documented."

Thus, the respondent's definite case is that on 9.5.1995, the respondent had provisionally diagnosed endometriosis and informed the appellant; that appellant had agreed that hysterectomy may be performed if the lesion was extensive; and that in pursuance of such consent, reiterated in writing by the appellant in the consent form on 10.5.1995, she performed the AH-BSO removing the uterus and ovaries on finding extensive endometriosis. In other words, according to respondent, the abdominal hysterectomy and bilateral salpingo-oopherectomy (AH-BSO) was not necessitated on account of any emergency or life threatening situation developing or being discovered when laparoscopic test was conducted, but according to an agreed plan, consented by the appellant and her mother on 9.5.1995 itself, reiterated in writing on 10.5.1995. Therefore the defence of respondent is one based on specific consent. Let us therefore examine whether there was consent.

38.    The Admission and Discharge card maintained and produced by the respondent showed that the appellant was admitted "for diagnostic and (?)operative laparoscopy on 10.5.1995". The OPD card dated 9.5.1995 does not refer to endometriosis, which is also admitted by the respondent in her cross-examination. If fact, the respondent also admitted that the confirmation of diagnosis is possible only after laparoscopy test : "On clinical and ultrasound examination a diagnosis can be made to some extent. But precise diagnosis will have to be on laparoscopy."

Samira Kohli vs Dr. Prabha Manchanda & Anr
CASE NO.: Appeal (civil)  1949 of 2004 - Supreme Court of India - BENCH: B. N. Agarwal, P. P. Naolekar & R. V. Raveendran - DATE OF JUDGMENT: 16/01/2008


J U D G M E N T RAVEENDRAN, J.

This appeal is filed against the order dated 19.11.2003 passed by the National Consumer Disputes Redressal Commission (for short 'Commission') rejecting the appellants complaint (O.P. No.12/1996) under Section 21 of the Consumer Protection Act, 1986 (Act for short).

Undisputed facts

2.    On 9.5.1995, the appellant, an unmarried woman aged 44 years, visited the clinic of the first respondent (for short the respondent) complaining of prolonged menstrual bleeding for nine days. The respondent examined and advised her to undergo an ultrasound test on the same day. After examining the report, the respondent had a discussion with appellant and advised her to come on the next day (10.5.1995) for a laparoscopy test under general anesthesia, for making an affirmative diagnosis.

3.    Accordingly, on 10.5.1995, the appellant went to the respondent's clinic with her mother. On admission, the appellant's signatures were taken on (i) admission and discharge card; (ii) consent form for hospital admission and medical treatment; and (iii) consent form for surgery. The Admission Card showed that admission was for diagnostic and operative laparoscopy on 10.5.1995". The consent form for surgery filled by Dr. Lata Rangan (respondent's assistant) described the procedure to be undergone by the appellant as "diagnostic and operative laparoscopy. Laparotomy may be needed". Thereafter, appellant was put under general anesthesia and subjected to a laparoscopic examination. When the appellant was still unconscious, Dr. Lata Rengen, who was assisting the respondent, came out of the Operation Theatre and took the consent of appellants mother, who was waiting outside, for performing hysterectomy under general anesthesia. Thereafter, the Respondent performed a abdominal hystecrectomy (removal of uterus) and bilateral salpingo-oopherectomy (removal of ovaries and fallopian tubes). The appellant left the respondents clinic on 15.5.1995 without settling the bill.

4.    On 23.5.1995, the respondent lodged a complaint with the Police alleging that on 15.5.1995, the Appellant's friend (Commander Zutshi) had abused and threatened her (respondent) and that against medical advice, he got the appellant discharged without clearing the bill. The appellant also lodged a complaint against the respondent on 31.5.1995, alleging negligence and unauthorized removal of her reproductive organs. The first respondent issued a legal notice dated 5.6.1995 demanding Rs.39,325/- for professional services. The appellant sent a reply dated 12.7.1995. There was a rejoinder dated 18.7.1995 from the respondent and a further reply dated 11.9.1995 from the appellant. On 19.1.1996 the appellant filed a complaint before the Commission claiming a compensation of Rs.25 lakhs from the Respondent. The appellant alleged that respondent was negligent in treating her; that the radical surgery by which her uterus, ovaries and fallopian tubes were removed without her consent, when she was under general anesthesia for a Laparascopic test, was unlawful, unauthorized and unwarranted; that on account of the removal of her reproductive organs, she had suffered premature menopause necessitating a prolonged medical treatment and a Harmone Replacement Therapy (HRT) course, apart from making her vulnerable to health problems by way of side effects. The compensation claimed was for the loss of reproductive organs and consequential loss of opportunity to become a mother, for diminished matrimonial prospects, for physical injury resulting in the loss of vital body organs and irreversible permanent damage, for pain, suffering emotional stress and trauma, and for decline in the health and increasing vulnerability to health hazards.

5.    During the pendency of the complaint, at the instance of the respondent, her insurer - New India Assurance Co. Ltd, was impleaded as the second respondent. Parties led evidence - both oral and documentary, Appellant examined an expert witness (Dr. Puneet Bedi, Obstetrician & Gynaecologist), her mother (Sumi Kohli) and herself. The respondent examined herself, an expert witness (Dr. Sudha Salhan, Professor of Obstetrics & Gynaecology and President of Association of Obstetricians and Gynaecologists of Delhi), Dr. Latha Rangan (Doctor who assisted the Respondent) and Dr. Shiela Mehra (Anaesthetist for the surgery). The medical records and notices exchanged were produced as evidence. After hearing arguments, the Commission dismissed the complaint by order dated 19.11.2003. The Commission held : (a) the appellant voluntarily visited the respondents clinic for treatment and consented for diagnostic procedures and operative surgery; (ii) the hysterectomy and other surgical procedures were done with adequate care and caution; and (iii) the surgical removal of uterus, ovaries etc. was necessitated as the appellant was found to be suffering from endometriosis (Grade IV), and if they had not been removed, there was likelihood of the lesion extending to the intestines and bladder and damaging them. Feeling aggrieved, the appellant has filed this appeal.

The appellants version :

6.    The appellant consulted respondent on 9.5.1995. Respondent wanted an ultra-sound test to be done on the same day. In the evening, after seeing the ultrasound report, the respondent informed her that she was suffering from fibroids and that to make a firm diagnosis, she had to undergo a laparoscopic test the next day. The respondent informed her that the test was a minor procedure involving a small puncture for examination under general anesthesia. The respondent informed her that the costs of laparoscopic test, hospitalization, and anesthetists charges would be around Rs.8000 to 9,000. Respondent spent hardly 4 to 5 minutes with her and there was no discussion about the nature of treatment. Respondent merely told her that she will discuss the line of treatment, after the laparoscopic test. On 10.5.1995, she went to the clinic only for a diagnostic laparoscopy. Her signature was taken on some blank printed forms without giving her an opportunity to read the contents. As only a diagnostic procedure by way of a laparoscopic test was to be conducted, there was no discussion, even on 10.5.1995, with regard to any proposed treatment. As she was intending to marry within a month and start a family, she would have refused consent for removal of her reproductive organs and would have opted for conservative treatment, had she been informed about any proposed surgery for removal of her reproductive organs.

7.    When the appellant was under general anaesthesia, respondent rushed out of the operation theatre and told appellant's mother that she had started bleeding profusely and gave an impression that the only way to save her life was by performing an extensive surgery. Appellant's aged mother was made to believe that there was a life threatening situation, and her signature was taken to some paper. Respondent did not choose to wait till appellant regained consciousness, to discuss about the findings of the laparoscopic test and take her consent for treatment. The appellant was kept in the dark about the radical surgery performed on her. She came to know about it, only on 14.5.1995 when respondents son casually informed her about the removal of her reproductive organs. When she asked the respondent as to why there should be profuse bleeding during a Laparoscopic test (as informed to appellant's mother) and why her reproductive organs were removed in such haste without informing her, without her consent, and without affording her an opportunity to consider other options or seek other opinion, the respondent answered rudely that due to her age, conception was not possible, and therefore, the removal of her reproductive organs did not make any difference.

8.    As she was admitted only for a diagnostic procedure, namely a laparoscopy test, and as she had given consent only for a laparoscopy test and as her mothers consent for conducting hysterectomy had been obtained by misrepresentation, there was no valid consent for the radical surgery. The respondent also tried to cover up her unwarranted/negligent act by falsely alleging that the appellant was suffering from endometriosis. The respondent was guilty of two distinct acts of negligence: the first was the failure to take her consent, much less an informed consent, for the radical surgery involving removal of reproductive organs; and the second was the failure to exhaust conservative treatment before resorting to radical surgery, particularly when such drastic irreversible surgical procedure was not warranted in her case. The respondent did not inform the appellant, of the possible risks, side effects and complications associated with such surgery, before undertaking the surgical procedure. Such surgery without her consent was also in violation of medical Rules and ethics. Removal of her reproductive organs also resulted in a severe physical impairment, and necessitated prolonged further treatment. The respondent was also not qualified to claim to be a specialist in Obstetrics and Gynaecology and therefore could not have performed the surgery which only a qualified Gynaecologist could perform.

The respondents version

9.    The appellant had an emergency consultation with the respondent on 9.5.1995, complaining that she had heavy vaginal bleeding from 30.4.1995, that her periods were irregular, and that she was suffering from excessive, irregular and painful menstruation (menorrhagia and dysmenorrhea) for a few months. On a clinical examination, the respondent found a huge mass in the pelvic region and tenderness in the whole area. In view of the severe condition, Respondent advised an ultrasound examination on the same evening. Such examination showed fibroids in the uterus, a large chocolate cyst (also known as endometrical cyst) on the right side and small cysts on the left side. On the basis of clinical and ultra sound examination, she made a provisional diagnosis of endometriosis and informed the appellant about the nature of the ailment, the anticipated extent of severity, and the modality of treatment. She further informed the appellant that a laparoscopic examination was needed to confirm the diagnosis; that if on such examination, she found that the condition was manageable with conservative surgery, she would only remove the chocolate cyst and fulgurate the endometric areas and follow it by medical therapy; and that if the lesion was extensive, then considering her age and likelihood of destruction of the function of the tubes, she will perform hysterectomy. She also explained the surgical procedure involved, and answered appellant's queries. The appellant stated that she was in acute discomfort and wanted a permanent cure and, therefore whatever was considered necessary, including a hysterectomy may be performed. When appellants mother called on her on the same evening, the respondent explained to her also about the nature of disease and the proposed treatment, and appellant's mother stated that she may do whatever was best for her daughter. According to the accepted medical practice, if endometriosis is widespread in the pelvis causing adhesions, and if the woman is over 40 years of age, the best and safest form of cure was to remove the uterus and the ovaries. As there is a decline in fecundity for most women in the fourth decade and a further decline in women in their forties, hysterectomy is always considered as a reasonable and favoured option. Further, endometriosis itself affected fertility adversely. All these were made known to the appellant before she authorised the removal of uterus and ovaries, if found necessary on laparoscopic examination.

10.    On 10.5.1995, the appellants consent was formally recorded in the consent form by Dr. Lata Rangan - respondent's assistant. Dr. Lata Rangan informed the appellant about the consequences of such consent and explained the procedure that was proposed. The appellant signed the consent forms only after she read the duly filled up forms and understood their contents. All the requisite tests to be conducted mandatorily before the surgery were performed including Blood Grouping, HIV, Hemoglobin, PCV, BT, CT and ECG. The laparoscopic examination of the uterus surface confirmed the provisional diagnosis of endometriosis. The right ovary was enlarged and showed a chocolate cyst stuck to the bowel. Right tube was also involved in the lesion. The left ovary and tube were also stuck to the bowel near the cervix. A few small cysts were seen on the left ovary. The pelvic organs were thick and difficult to mobilize. Having regard to the extent of the lesion and the condition of appellant's uterus and ovaries, she decided that conservative surgery would not be sufficient and the appellants problem required removal of uterus and ovaries. The respondent sent her assistant, Dr. Lata Rangan to explain to appellants mother that the lesion would not respond to conservative surgery and a hysterectomy had to be performed and took her consent. The surgery was extremely difficult due to adhesions and vascularity of surface. A sub-total hysterectomy was done followed by the removal of rest of the stump of cervix. As the right ovary was completely stuck down to bowel, pouch of douglas, post surface and tube, it had to be removed piecemeal. When appellant regained consciousness, she was informed about the surgery. The appellant felt assured that heavy bleeding and pain would not recur. There was no protest either from the appellant or her mother, in regard to the removal of the ovaries and uterus.

11.    However, on 15.5.1995, Commander Zutshi to whom appellant was said to have been engaged, created a scene and got her discharged. At the time of discharge, the summary of procedure and prescription of medicines were given to her. As the bill was not paid, the respondent filed Suit No.469/1995 for recovery of the bill amount and the said suit was decreed in due course.

12.    Respondent performed the proper surgical procedure in pursuance of the consent given by the appellant and there was no negligence, illegality, impropriety or professional misconduct. There was real and informed consent by the appellant for the removal of her reproductive organs. The surgery (removal of uterus and ovaries), not only cured the appellant of her disease but also saved her intestines, bladder and ureter from possible damage. But for the surgical removal, there was likelihood of the intestines being damaged due to extension of lesion thereby causing bleeding, fibrosis and narrowing of the gut; there was also likelihood of the lesion going to the surface of the bladder penetrating the wall and causing haematuria and the ureter being damaged due to fibrosis and leading to damage of the kidney, with a reasonable real chance of developing cancer. As the complainant was already on the wrong side of 40 years which is a peri-menopausal age and as the appellant had menorrhagia which prevented her from ovulating regularly and giving her regular cycle necessary for pregnancy and as endometriosis prevented fertilization and also produced reaction in the pelvis which increased the lymphocytes and macrophages which destroyed the ova and sperm, there was no chance of appellant conceiving, even if the surgery had not been performed. The removal of her uterus and ovaries was proper and necessary and there was no negligence on the part of the respondent in performing the surgery. A Doctor who has acted in accordance with a practice accepted as proper by medical fraternity cannot be said to have acted negligently. In the realm of diagnosis and treatment there is ample scope for genuine differences of opinion and no Doctor can be said to have acted negligently merely because his or her opinion differs from that of other Doctors or because he or she has displayed lesser skill or knowledge when compared to others. There was thus no negligence on her part.

Questions for consideration :

13.    On the contentions raised, the following questions arise for our consideration :

(i)    Whether informed consent of a patient is necessary for surgical procedure involving removal of reproductive organs? If so what is the nature of such consent ?

(ii)    When a patient consults a medical practitioner, whether consent given for diagnostic surgery, can be construed as consent for performing additional or further surgical procedure -- either as conservative treatment or as radical treatment -- without the specific consent for such additional or further surgery.

(iii)    Whether there was consent by the appellant, for the abdominal hysterectomy and Bilateral Salpingo-oopherectomy (for short AH- BSO) performed by the respondent?

(iv)    Whether the respondent had falsely invented a case that appellant was suffering from endometriosis to explain the unauthorized and unwarranted removal of uterus and ovaries, and whether such radical surgery was either to cover-up negligence in conducting diagnostic laparoscopy or to claim a higher fee ?

(v)    Even if appellant was suffering from endometriosis, the respondent ought to have resorted to conservative treatment/surgery instead of performing radical surgery ?

(vi)    Whether the Respondent is guilty of the tortious act of negligence/battery amounting to deficiency in service, and consequently liable to pay damages to the appellant.

Re : Question No.(i) and (ii)

14.    Consent in the context of a doctor-patient relationship, means the grant of permission by the patient for an act to be carried out by the doctor, such as a diagnostic, surgical or therapeutic procedure. Consent can be implied in some circumstances from the action of the patient. For example, when a patient enters a Dentist's clinic and sits in the Dental chair, his consent is implied for examination, diagnosis and consultation. Except where consent can be clearly and obviously implied, there should be express consent. There is, however, a significant difference in the nature of express consent of the patient, known as 'real consent' in UK and as 'informed consent' in America. In UK, the elements of consent are defined with reference to the patient and a consent is considered to be valid and 'real' when (i) the patient gives it voluntarily without any coercion; (ii) the patient has the capacity and competence to give consent; and (iii) the patient has the minimum of adequate level of information about the nature of the procedure to which he is consenting to. On the other hand, the concept of 'informed consent' developed by American courts, while retaining the basic requirements consent, shifts the emphasis to the doctor's duty to disclose the necessary information to the patient to secure his consent. 'Informed consent' is defined in Taber's Cyclopedic Medical Dictionary thus :

"Consent that is given by a person after receipt of the following information : the nature and purpose of the proposed procedure or treatment; the expected outcome and the likelihood of success; the risks; the alternatives to the procedure and supporting information regarding those alternatives; and the effect of no treatment or procedure, including the effect on the prognosis and the material risks associated with no treatment. Also included are instructions concerning what should be done if the procedure turns out to be harmful or unsuccessful."

In Canterbury v. Spence - 1972 [464] Federal Reporter 2d. 772, the United States Courts of appeals, District of Columbia Circuit, emphasized the element of Doctor's duty in 'informed consent' thus: "It is well established that the physician must seek and secure his patient's consent before commencing an operation or other course of treatment. It is also clear that the consent, to be efficacious, must be free from imposition upon the patient. It is the settled rule that therapy not authorized by the patient may amount to a tort - a common law battery - by the physician. And it is evident that it is normally impossible to obtain a consent worthy of the name unless the physician first elucidates the options and the perils for the patient's edification. Thus the physician has long borne a duty, on pain of liability for unauthorized treatment, to make adequate disclosure to the patient."

[Emphasis supplied]

15.    The basic principle in regard to patient's consent may be traced to the following classic statement by Justice Cardozo in Schoendorff vs. Society of New York Hospital - (1914) 211 NY 125 :

'Every human being of adult years and sound mind has a right to determine what should be done with his body; and a surgeon who performs the operation without his patient's consent, commits an assault for which he is liable in damages."

This principle has been accepted by English court also. In Re : F. 1989(2) All ER 545, the House of Lords while dealing with a case of sterilization of a mental patient reiterated the fundamental principle that every person's body is inviolate and performance of a medical operation on a person without his or her consent is unlawful. The English law on this aspect is summarised thus in Principles of Medical Law (published by Oxford University Press -- Second Edition, edited by Andrew Grubb, Para 3.04, Page 133) :

"Any intentional touching of a person is unlawful and amounts to the tort of battery unless it is justified by consent or other lawful authority. In medical law, this means that a doctor may only carry out a medical treatment or procedure which involves contact with a patient if there exists a valid consent by the patient (or another person authorized by law to consent on his behalf) or if the touching is permitted notwithstanding the absence of consent."

16.    The next question is whether in an action for negligence/battery for performance of an unauthorized surgical procedure, the Doctor can put forth as defence the consent given for a particular operative procedure, as consent for any additional or further operative procedures performed in the interests of the patient. In Murray vs. McMurchy - 1949 (2) DLR 442, the Supreme Court of BC, Canada, was considering a claim for battery by a patient who underwent a caesarian section. During the course of caesarian section, the doctor found fibroid tumors in the patient's uterus. Being of the view that such tumours would be a danger in case of future pregnancy, he performed a sterilization operation. The court upheld the claim for damages for battery. It held that sterilization could not be justified under the principle of necessity, as there was no immediate threat or danger to the patient's health or life and it would not have been unreasonable to postpone the operation to secure the patient's consent. The fact that the doctor found it convenient to perform the sterilization operation without consent as the patient was already under general anaesthetic, was held to be not a valid defence. A somewhat similar view was expressed by Courts of Appeal in England in Re : F. (supra). It was held that the additional or further treatment which can be given (outside the consented procedure) should be confined to only such treatment as is necessary to meet the emergency, and as such needs to be carried out at once and before the patient is likely to be in a position to make a decision for himself. Lord Goff observed :

"Where, for example, a surgeon performs an operation without his consent on a patient temporarily rendered unconscious in an accident, he should do no more than is reasonably required, in the best interests of the patient, before he recovers consciousness. I can see no practical difficulty arising from this requirement, which derives from the fact that the patient is expected before long to regain consciousness and can then be consulted about longer term measures."

The decision in Marshell vs. Curry - 1933 (3) DLR 260 decided by the Supreme Court of NS, Canada, illustrates the exception to the rule, that an unauthorized procedure may be justified if the patient's medical condition brooks no delay and warrants immediate action without waiting for the patient to regain consciousness and take a decision for himself. In that case the doctor discovered a grossly diseased testicle while performing a hernia operation. As the doctor considered it to be gangrenous, posing a threat to patient's life and health, the doctor removed it without consent, as a part of the hernia operation. An action for battery was brought on the ground that the consent was for a hernia operation and removal of testicle was not consent. The claim was dismissed. The court was of the view that the doctor can act without the consent of the patient where it is necessary to save the life or preserve the health of the patient. Thus, the principle of necessity by which the doctor is permitted to perform further or additional procedure (unauthorized) is restricted to cases where the patient is temporarily incompetent (being unconscious), to permit the procedure delaying of which would be unreasonable because of the imminent danger to the life or health of the patient.

17.    It is quite possible that if the patient been conscious, and informed about the need for the additional procedure, the patient might have agreed to it. It may be that the additional procedure is beneficial and in the interests of the patient. It may be that postponement of the additional procedure (say removal of an organ) may require another surgery, whereas removal of the affected organ during the initial diagnostic or exploratory surgery, would save the patient from the pain and cost of a second operation. Howsoever practical or convenient the reasons may be, they are not relevant. What is relevant and of importance is the inviolable nature of the patient's right in regard to his body and his right to decide whether he should undergo the particular treatment or surgery or not. Therefore at the risk of repetition, we may add that unless the unauthorized additional or further procedure is necessary in order to save the life or preserve the health of the patient and it would be unreasonable (as contrasted from being merely inconvenient) to delay the further procedure until the patient regains consciousness and takes a decision, a doctor cannot perform such procedure without the consent of the patient.

18.    We may also refer to the code of medical ethics laid down by the Medical Council of India (approved by the Central Government under section 33 of Indian Medical Council Act, 1956). It contains a chapter relating to disciplinary action which enumerates a list of responsibilities, violation of which will be professional misconduct. Clause 13 of the said chapter places the following responsibility on a doctor :

"13. Before performing an operation the physician should obtain in writing the consent from the husband or wife, parent or guardian in the case of a minor, or the patient himself as the case may be. In an operation which may result in sterility the consent of both husband and wife is needed."

We may also refer to the following guidelines to doctors, issued by the General Medical Council of U.K. in seeking consent of the patient for investigation and treatment :

"Patients have a right to information about their condition and the treatment options available to them. The amount of information you give each patient will vary, according to factors such as the nature of the condition, the complexity of the treatment, the risks associated with the treatment or procedure, and the patient's own wishes. For example, patients may need more information to make an informed decision about the procedure which carries a high risk of failure or adverse side effects; or about an investigation for a condition which, if present, could have serious implications for the patient's employment, social or personal life.

x x x x x You should raise with patients the possibility of additional problems coming to light during a procedure when the patient is unconscious or otherwise unable to make a decision. You should seek consent to treat any problems which you think may arise and ascertain whether there are any procedures to which the patient would object, or prefer to give further thought before you proceed."

The Consent form for Hospital admission and medical treatment, to which appellant's signature was obtained by the respondent on 10.5.1995, which can safely be presumed to constitute the contract between the parties, specifically states :

"(A) It is customary, except in emergency or extraordinary circumstances, that no substantial procedures are performed upon a patient unless and until he or she has had an opportunity to discuss them with the physician or other health professional to the patient's satisfaction.

(B)    Each patient has right to consent, or to refuse consent, to any proposed procedure of therapeutic course."

19.    We therefore hold that in Medical Law, where a surgeon is consulted by a patient, and consent of the patient is taken for diagnostic procedure/surgery, such consent cannot be considered as authorisation or permission to perform therapeutic surgery either conservative or radical (except in life threatening or emergent situations). Similarly where the consent by the patient is for a particular operative surgery, it cannot be treated as consent for an unauthorized additional procedure involving removal of an organ, only on the ground that such removal is beneficial to the patient or is likely to prevent some danger developing in future, where there is no imminent danger to the life or health of the patient.

20.    We may next consider the nature of information that is required to be furnished by a Doctor to secure a valid or real consent. In Bowater v. Rowley Regis Corporation - [1944] 1 KB 476, Scott L.J. observed : "A man cannot be said to be truly 'willing' unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge of the circumstances on which the exercise of choice is conditioned, so that he may be able to choose wisely, but the absence from his mind of any feeling of constraint so that nothing shall interfere with the freedom of his will."

In Salgo vs. Leland Stanford [154 Cal. App. 2d.560 (1957)], it was held that a physician violates his duty to his patient and subjects himself to liability if he withholds any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment.

R.P. Sharma vs State Of Rajasthan And Anr.
Equivalent citations: 2003 ACJ 2093, AIR 2002 Raj 104, 2002 (2) WLC 345, 2002 (4) WLN 361 - Rajasthan High Court - Bench: S Keshote - date of Judgment: 5 October, 2001

JUDGMENT Keshote, J.

1. This petition is directed by the petitioner under Article 226 of the Constitution and prayed for the following reliefs:-

i) to direct the respondents to compensate the sudden and unnatural death of petitioner's wife Shrimati Kamla Sharma by a sum of Rs.3,04,000/-.

ii) to direct the respondents that as a logical consequence of enquiry conducted under the orders of respondent No. 2, the functionaries responsible for utter negligence causing death of petitioner's wife be booked for appropriate action.

2. During the course of the arguments learned counsel for the petitioner gives up the prayer No. 2 aforestated and confined the writ petition only to the extent of prayer No. 1.

3. The facts of the case are that the petitioner's wife late Smt. Kamla Sharma was admitted in SMS Hospital, Jaipur on 23.2.88 for the operation of the removal of gall stone. She was admitted in 3 AB ward under the supervision of Dr.P.C. Kala. The petitioner's wife was shifted to 6, South Cubical Unit on 27.2.88. She was operated upon for removal of gall stone on 7.3.88. The medical staff working under the operating surgeon was advised for giving blood transfusion of blood group O + ive. to the wife of the petitioner.

4. One bottle blood of blood group 0 + ive was obtained from the blood bank of the hospital and it was transfused to her body. The petitioner's wife need more blood, another bottle was obtained from the blood bank of the hospital personally by Dr. Indu from Dr. Madhu who handed over the bottle of blood group. This bottle of blood was obtained at 9.00 P.M. on 7.3.88. This bottle of blood was obtained by Dr.lndu was transfused to the body of late Smt. Kamla Sharma by a nurse at 11.00 P.M. After 10 minutes of transfusion of blood from the second bottle obtained from the Blood Bank, the condition of the petitioner's wife deteriorated and became serious. The matter was reported to Dr. Indu by the petitioner's daughter Smt.Sashi but no serious attention was paid to the report of Smt. Sashi and the matter was dealt with utter negligence.

5. After about 25 minutes of transfusion of blood to the body of petitioner's wife Dr. Indu received a telephonic call from the Blood Bank that the transfusion of the blood to the body of patient be immediately stopped by removing the bottle from hook. The daughter of the petitioner asked the nurse on duty as to why the transfusion of blood is stopped but no reply was forthcoming. Afterwards the daughter of the petitioner came to know the cause of stopping blood transfusion. She learnt that the bottle of the blood supplied for transfusion was of blood group B + ive.

6. On 8.3.88 the condition of the petitioner's wife became serious and in the morning the patient was put to oxygen and the treatment continued.

7. On 8.3.88 itself at about 10.30 P.M. the petitioner's wife lost her eye sight. She breathed her last at about 4.00 P.M. on 9.3.88.

8. The cause of her death as shown in the death certificate issued on is 'Cardio respiratory arrest'.

9. It is submitted that as per the medical jurisprudence one of the cause of the death due to Cardio respiratory arrest is transfusion of blood of wrong blood group. This matter of utter negligence on the part of the Doctors was highlighted in Hindi Daily Newspaper Rasthradot in its edition on 12.3.68.

10. The hospital administration held an enquiry in to the incident @f the death of the petitioner's wife.

11. On 16.3.88 there was demand of action against the negligent doctors in the Rajasthan Legislative Assembly. Preliminary enquiry was conducted by Dr. P.K Wan-choo and Dr. F.S.K. Barar. The committee held Dr. Madhu and Dr. Indu responsible for the death of the petitioner's wife. This what is reported in Hindi Daily Newspaper Rasthradot on 17.3.88. The petitioner was called twice to attend the aforesaid enquiry in the chamber of Dr. F.S.K. Barar. He attended the enquiry alongwith his daughter Smt. Sashi. They both stated the fact before the enquiry committee about the transfusion of second bottle of blood, deterioration of the condition of the patient after about 10 minutes of transfusion, negligent behavior of the doctors on duty and then abrupt discontinuation of blood transfusion after about 25 minutes and there was telephonic call from the blood Bank.

12. The petitioner wrote a letter on 12.4.88 to respondent No. 2 asking for the information about blood group of petitioner's wife, dates and time, bottle number and blood group supplied for the patient from the blood bank. IN response to the aforesaid letter the petitioner was supplied the required information by the respondent No. 2 vide letter dated 19.4.88.

13. It is submitted that the respondent No. 2 admitted that the one blood bottle for the patient was wrongly supplied. In the final report of the enquiry submitted to the respondent No. 2 it has been established beyond doubt that the death of the petitioner's wife occurred due to transfusion wrong group of blood to the patient.

14. It is stated that the petitioner's wife was only 45 years of age with excellent condition of general health. The hereditary span of life of the members of the family is 70 years as her father expired at the age of 70 years. It is submitted she had to discharge the liability of her younger daughters' marriage who is of 19 years. She belongs to the status of medium class well to do family. The petitioner being the husband has to suffer mental agony all along in her memory as he feels himself helpless and isolated at the age of 56 years when the company of wife is all the more needed. The petitioner has to suffer mental agony, isolation and separation from wife for a period of 25 years of his life at the age when the company of wife is more needed. It is stated that loss of company of wife cannot be compensated by the amount less than Rs. 2 lacs. Lack of advise and, giving adequate co-operation in discharge of the liabilities of the marriage of the daughter cannot be compensated by an amount less than Rs. one lac and there were medical expenses of Rs. 4,000/- incurred in operation and treatment thus the petitioner claimed Rs. 3,04,000/- as compensation for the negligence on the part of the doctors in the case.

15. Before approaching to this Court the petitioner served a notice for demand of justice to the respondents but when nothing has been done he filed this petition.

16. The petition has been admitted. Reply to the petition has been filed by respondent Nos. 1 and 2 through the officer incharge Dr. F.S.K. Barar. The respondent Nos. 3 and 4 have not cared, bothered to file reply to the writ petition as well as to remain personally present or through the advocate to make the oral submissions.

17. Along with the reply to the petition, the respondent nos. 1 and 2 submitted copy of enquiry report into the death case of Smt. Kamla Sharma dated 13.5.88. In the reply it is admitted by the respondents that the wife of the petitioner expired in the hospital during post operative care due to transfusion of blood of a wrong group. It is stated that high power committee consisting of two senior doctors Dr.P.K. Wanchoo and Dr. F.S.K Barar were appointed to conduct the elaborate enquiry. The enquiry was conducted and the enquiry report was submitted to the Government for further action. It is stated in the reply that the enquiry committee came to the conclusion that the incharge of blood bank Or. Madhu Chaturvedi who supplied the bottle and in ward Dr. Indu Sharma who transfused the blood were responsible for her death because of the lapses on their part, it is stated that the enquiry report under consideration of the Government.

18. In para No. 24 of the reply the preliminary objection raised that the determination of the compensation and the damage is beyond the jurisdiction of this Court under Article 226 of the Constitution. The facts are disputed and can only be determined by regular enquiry or trial by a civil court. The writ is not a substitute for civil dispute. It is stated that the amount of compensation claimed is also without any basis and documents. It is submitted that no proof has been furnished in the form of expenses how the petitioner has made so heavy expenses.

19. Heard the learned counsel for the parties.

20. Learned counsel for the petitioner contended that the State of Rajasthan is liable for the negligence of its doctors. It is submitted that the death of the wife of the petitioner was caused due to the negligence of two doctors of the State of Rajasthan. There negligence has been accepted. It is also accepted by the respondent State of Rajasthan that cause of death of wife of petitioner is transfusion of wrong blood group. This transfusion of blood of wrong group as a result of negligence of respondent No. 3 and 4 (Doctors).

21. Learned counsel for the petitioner next contended that the State of Rajasthan has not acted fairly, reasonably and as a welfare state. Despite of the fact that it accepted it to be a case of death of the wife of the petitioner as a result of negligence of the doctors officers of the Government it voluntarily has not given any compensation to the petitioner. Not only this the petitioner has given a notice for demand of justice to the respondents before coming to this Court but they have not cared to acknowledge the same what to say to accept the claim of the petitioner.

22. Lastly it is contended that the loss of the wife to the petitioner at this stage cannot be compensated in terms of money but the petitioner has made a claim of a moderate amount. This amount should have been paid by the Slate of Rajasthan to the petitioner rather than to compel him to approach to this Court.

23. Mr. R.N. Mathur learned Additional Advocate General on the other hand very fairly submitted that the State of Rajasthan is vicariously liable for this negligence of its doctors as a result of which the petitioner has lost his wife. Mr. Mathur however submitted that it is the negligence of the doctors for which the State is vicariously liable but as they parties to this petition, this amount of the compensation claimed by the petitioner be ordered to be paid by them. Lastly it is contended that if ultimately the Court directs the State of Rajasthan to pay the amount of compensation to the petitioner for the loss of his wife as a result of negligence of the doctors, a reasonable sum may be awarded.

24. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties.

25. I do not find any substance, merits and reasonableness in this approach of the Additional Advocate General of the State that this Court to order for the payment of this amount of compensation claimed by the petitioner against those two doctors because of their negligence in discharge of their duties, the petitioner lost his wife. It is a vicarious liability of the State of Rajasthan and the Court on proof of the negligence of its officers which result in causing the loss of his wife to the petitioner certainly can direct the State of Rajasthan and award the compensation against it. For the negligence of its officers in performing their duties if any loss is suffered by a citizen certainly the court can award compensation in his favour and direct the State of Rajasthan to pay the same. Where the officers of the State discharge their duties negligently and carelessly which result in the loss of the wife to the petitioner, the State to bear the consequences. However, the State can recover the amount of compensation awarded and paid by it to the petitioner for the loss of his wife from those negligent and careless officers.

26. The respondent Nos. 1 & 2 have not disputed that the death of the wife of the petitioner was as a result of the negligence and carelessness in performance of their duties by the two doctors, the servant of the State of Rajasthan. In view of this undisputed fact the Court needs not to go on and considers this aspect of the matter. Otherwise also from the report of the Committee it is clear that the cause of the death of the wife of the petitioner was mismatched blood transfusion. The Committee has further reported that the onus of responsibility lies on Dr. Madhu Chaturvedi, resident blood Bank who allowed a wrong bottle of blood to leave the blood hank. tHE LAST share of the blame has also been reported to rest an Dr. Indu Sharma. The relevant portion of this report reads as under:-

1. The cause of death of Mrs. Kamla Sharma was clearly a mismatched blood transfusion.

2. The onus of responsibility lies on Dr. Madhu Chaturvedi, Resident, Blood Bank who allowed a wrong bottle of blood to leave the Blood Bank. The fact that Dr. Indu Sharma promised to carryout the verification before starting the transfusion, does not absolve Dr. Madhu Chaturvedi of her stipulated responsibility, as she was primarily responsible for supplying the correct bottle of blood.

3. A large number of the blame also rests on Dr. Indu Sharma, Resident, Surgical Unit HI because of the following reasons:-

(i) She hurriedly took the bottle of blood from the Blood Bank without allowing Dr. Madhu Chaturvedi to complete her verification.

(ii) Dr. Indu Sharma verified the patient's name and Registration No. and failed to verify the blood group mentioned on the bottle with the patient's blood group on the tag, as is explicitly mentioned at item No. 3 on the cyclostyled label on the bottle of blood.

(iii) Dr. Indu Sharma was not physically present in the Ward at the time of starting the blood transfusion, which was in fact started by the Nurse on duty.

(iv) When she (Dr. Indu Sharma) was summoned to the Ward, she failed to discharge the basic courtesy which is expected of a doctor when dealing with the attendance of a serious patient.

4. The behavior of the Nurse on duty with the patient's relative (daughter) was also far from proper.

27. So it is a clear case of the negligence of the servants of the State of Rajasthan in performance of their duties as a result of which the death of the wife of the petitioner occurred.

28. The respondent State of Rajasthan has not given out what action has been taken by it against these two doctors as well as the nursing staff against whom the Committee has reported that her behaviour with the patient's relative was far from proper. In a case of this nature it is expected from the State to take immediate action against the negligent and careless servants, for the reasons best known to it no such action appears to have been taken against those doctors and nursing staff. That may be the one of the reasons that among the Government servants the graph of the negligence and carelessness in discharge of their duties is increasing day by day.

29. Life of a person is precious and if it is lost because of the negligence and carelessness of the Government servant it is a very serious matter. For the loss of the life of a person his/her dear and near cannot be compensated in terms of money. It is true that the Additional Advocate General disputed the amount of the compensation claimed by the petitioner but he has not come up with any figure of amount to be awarded as compensation by the Court to the petitioner.

30. In fact after this report of the Doctors) Committee the State Government voluntarily should have paid the compensation to the petitioner. This has not been done. It is really a serious and shocking that the welfare State has instead of voluntarily giving the compensation to the petitioner for the loss of his wife as a result of negligence in discharge of the duties on the part of its servant, it is opposing this writ petition on the point of the quantum of the compensation. It should have been done at the stage when the petitioner has given notice for demand of justice. The State Government should have come up with the reasonable sum to be awarded as com-

pensation to the petitioner for the loss of his wife. That stage also nobody has taken care of the matter.

31. This writ petition is filed in the year 1988 but till day nobody has cared from for the State of Rajasthan to give a single pie towards the compensation to the petitioner.

32. In the matter of the award of compensation for the loss of the wife of the petitioner it is very difficult to reach to a definite sum of the money. The reason is very obvious. The wife for the husband is very precious and her value in money terms is very difficult to assess and fix.

33. Where the matter is considered and looked into from this aspect certainly the amount claimed by the petitioner of the compensation under three heads do not seem to be unreasonable, unfair and towards the upward side. The loss of the wife to the husband at this age is certainly a loss which cannot be compensated in terms of the money by the Court. But it is only a matter of conscience for suffering, agony and loss of company etc.

34. The petitioner has claimed Rs. two lacs under the head of loss of the company of wife. Rs. one lac has been claimed by the petitioner under the head for lack of advice and giving adequate cooperation in discharge of the liabilities of the marriage of the daughter and under the head of medical expenses he has claimed Rs. 4,000/-.

35. In the reply to the petition the respondents have stated that the petitioner has not given out any basis for this amount claimed as compensation. How any base can be there for this loss to which the petitioner is suffering till day. It is only a matter of rough-estimate for conscience and not the claim for the real loss.

36. It is to be stated at the cost of repetition that real loss to which the petitioner is subjected and suffered cannot be compensated in terms of the money. When the respondents have not given out any figure of the sum which is to be awarded to the petitioner as compensation for the loss of his wife the claim made by the petitioner is to be accepted.

37. In the result this petition succeeds and the same is allowed. The respondent State of Rajasthan is directed to pay Rs. 3,04,000/- to the petitioner as compensation for the loss of his wife due to the negligence in performance of duties by its servants.

38. The respondent State of Rajasthan is further directed to pay the interest on this amount to the petitioner at the rate of 12% per annum from the date of the filing of this petition i.e. 4.10.1988 till the date of the payment thereof.

39. The respondent State of Rajasthan is further directed to pay Rs.2,000/- as cost of this petition to the petitioner.

40. The State of Rajasthan is directed to calculate the amount of interest payable to the petitioner on this amount of the compensation within a period of one month from the date of receipt of the certified copy of this order. The amount of compensation, the amount of interest calculated thereon and the amount of cost is to be paid to the petitioner by the respondent State of Rajasthan within one month next.

41. The State of Rajasthan is free to recover this amount from those doctors because of their negligence the petitioner has lost his wife. The compliance of this order is to be reported to the Court.

State of Haryana & Ors vs Smt. Santra
Bench: S.S.Ahmad, D.P.Wadhwa - Supreme Court of India - DATE OF JUDGMENT: 24/04/2000

JUDGMENT:
S. SAGHIR AHMAD, J.    Leave    granted. Medical Negligence plays its game in strange ways. Sometimes it plays with life; sometimes it gifts an "Unwanted Child" as in the    instant case where the respondent, a poor labourer woman,    who already had many children and had opted    for sterilisation, developed pregnancy and ultimately gave birth to a female child in spite of sterilisation operation which, obviously, had    failed. Smt.    Santra, the victim of    the medical negligence, filed a suit for recovery of Rs.2 lakhs as damages for medical negligence, which was decreed for a sum of Rs.54,000/- with interest at the rate of 12 per cent per annum from the date of institution of the suit till the payment    of the decretal amount. Two appeals    were filed against this decree in the court of District Judge, Gurgaon, which were disposed of by Addl.    District Judge, Gurgaon, by a common judgment dated 10.5.1999. Both the appeals -    one filed by the State of Haryana and the other by Smt. Santra were dismissed. The second appeal filed by the State of Haryana was summarily dismissed by the Punjab & Haryana High Court on 3.8.1999. It is in these circumstances that    the present Special Leave Petition has been filed in this court. "Sterilisation    Scheme", admittedly, was launched by    the Haryana    Govt.    and taking advantage of that scheme,    Smt. Santra    approached the Chief Medical Officer, Gurgaon,    for her sterilisation in 1988. The sterilisation operation was performed on her and a certificate to that effect was    also issued    to her    on 4.2.1988 under the    signatures of    the Medical    Officer, General Hospital, Gurgaon. Smt. Santra was assured that full, complete and successful sterilisation operation had    been performed upon her and she would    not conceive a child in future. But despite the operation, she conceived. When she contacted the Chief Medical Officer and other Doctors    of the General Hospital, Gurgaon, she    was informed that she was not pregnant. Two months later    when the pregnancy    became apparent, she again approached those Doctors    who then told her that her sterilisation operation was not successful.    Dr. Sushil Kumar Goyal, who    was examined as DW-2, stated that the operation related only to the right Fallopian Tube and the left Fallopian Tube was not touched, which indicates that `complete sterlisation' operation was not done. She requested for an abortion, but was advised not to go in for abortion as the same would be dangerous to her life.    She ultimtely gave birth to a female child.    Smt.    Santra    already had seven children and    the birth of a new child put her to unnecessary burden of rearing    up the child as also all the expenses involved in the maintenance of that child, including the expenses towards    her clothes and education.    It was in these circumstances that the suit was filed by Smt.    Santra which was contested    by the State, who, besides taking up    the technical pleas relating to non-maintainability of the suit on various grounds, denied in the written statement    that there was any negligence on the part of the Medical Officer of the General Hospital, Gurgaon. It was contended by    the defendants that the sterlisation operation performed    upon Smt. Santra on 4.2.1988 was done carefully and successfully and there was no negligence on the part of the Doctor    who performed that operation. It was further pleaded that Smt. Santra    had herself put her thumb impression    on a paper containing a recital    that in case the operation was    not successful, she would not claim any damages. It was pleaded that she was estopped from raising the plea of negligence or from claiming    damages    for an    unsuccessful sterilisation operation from the State which, it was further pleaded, was not liable even vicariously for any lapse on the part of the Doctor    who performed that operation.    The trial court as also the lower appellate court both    recorded concurrent findings of fact that the sterlisation operation performed upon Smt. Santra was not `complete' as in that operation only the right Fallopian Tube was operated upon while    the left Tube was    left untouched. The courts were of    the opinion    that this exhibited negligence on the part of    the Medical    Officer who performed the operation. Smt. Santra, in spite of the unsuccessful operation, was informed    that sterlisation operation was successful and that she would not conceive any child in future.    The plea of estoppel raised by the    defendants was also rejected.    The trial court    has recorded the    following findings on    the question    of negligence:- "The birth of the female child by plaintiff Smt. Santra after operation    for sterilization is    not disputed and the case of the defts is that there was no negligence and carelessness on the part of the deft. but on going through    the documents placed on the file as well as testimony of PWs that the medical officer who conducted the operation has    threw the care and caution to the winds    and focussed attention to    perform as many as operations as possible to build record and earn publicity. It is in such settling that a poor lady obsessed to plan his family,    was negligently operated upon and treated and left in the larch to suffer agony and burden which he was made to believe was avoidable. Therefore, the act of the DW 2 Dr.    Sushil Kumar shows that he did not perform his duty to the best of    his ability    and with due care and caution and due to the above said act, the plaintiff has to suffer mental pain and agony and burden of    financial liability." The findings of    the Lower Appellate Court on this question are as under:-    "In the instant case, admittedly, plaintiff Santra was operated for right tube and not for left tube.    Dr. Sushil Kumar Goel while appearing as DW2 has categorically stated so. He has specifically stated that Santra,    plaintiff was    not traceable. I am of the considered opinion that if Santra, plaintiff was not operated for left side in that event    the doctor    should not have issued certificate of sterilization to her. The doctors who operated plaintiff Santra should have advised her to come for second time for her operation of left side. The plaintiff has placed family sterilization case card Ex.P2 on the file. The defendant State    has admitted in its written statement that she was successfully operated on 4.2.88 in General Hospital, Gurgaon.    When admittedly Santra, plaintiff was not operated, as discussed above,    for her left    tube in that    event issuance    of certificate to    her of her sterilization amounts gross negligence." The High Court, as pointed out above, summarily dismissed the second appeal. Learned counsel appearing on behalf    of the    State    of Haryana has    contended that    the negligence of    the Medical    Officer    in performing    the unsuccessful sterlisation operation upon Smt.    Santra would not bind the State Govt. and the State Govt.    would not be liable    vicariously for any damages to Smt. Santra. It was also claimed that the expenses awarded for rearing up    the child and for her maintenance could not have been legally decreed as there was no element of "tort" involved in it nor had Smt. Santra suffered any loss which could    be compensated in    terms    of money. Negligence is a `tort'. Every Doctor who enters into the medical profession has a duty to act with a reasonable degree of care    and skill. This is what is known as `implied undertaking' by a member of the    medical profession that he    would use a fair, reasonable and    competent degree of skill. In Bolam    vs. Friern    Hospital Management Committee (1957) 2 All ER    118, McNair,    J. summed up the law as under : "The test is    the standard of the ordinary skilled    man exercising    and professing to    have that special skill. A man need    not possess    the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. In the    case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper    standards, and    if he conforms with one of these proper    standards, then he is not negligent." This decision has since been approved by the House of Lords in Whitehouse vs. Jordon (1981) 1 All ER 267 (HL);    Maynard vs.    West Midlands Regional Health Authority (1985) 1 All ER 635 (HL); and Sidway vs.    Bathlem Royal Hospital (1985) 1 All ER    643 (HL).    In two decisions rendered by this Court, namely, Dr. Laxman    Balakrishna Joshi vs.    Dr. Trimbak Bapu Godbole & Anr. AIR 1969 SC 128 and A.S. Mittal vs. State of    U.P. AIR 1989 SC 1570, it was laid down that when a Doctor is consulted by a patient, the former, namely, the Doctor owes to his patient certain duties which are (a) a duty of    care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of that treatment.    A breach of any of    the above duties may give a cause of action    for negligence and the patient may on that basis recover damages from his Doctor. In a recent decision in Poonam Verma    vs. Ashwin    Patel & Ors. (1996) 4 SCC 332 = AIR 1996 SC    2111 where the question of medical negligence was considered in the context of treatment of a patient, it was observed as under : "40.    Negligence has many manifestations - it    may be active negligence, collateral negligence,    comparative negligence, concurrent    negligence, continued    negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or Negligence    per se, which is defined in    Black's    Law Dictionary as under : Negligence per se: Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or    proof    as to    the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because    it is so palpably opposed to the dictates of common prudence that    it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general    rule,    the violation of a public duty, enjoined by law for the    protection of    person    or property,    so constitutes." It was also observed that where a person is guilty of Negligence per se, no further proof is needed. In M/s Spring Meadows Hospital & Anr. vs. Harjol Ahluwalia through    K.S.    Ahluwalia & Anr.JT 1998(2) SC 620, it    was observed as under : "In the case in hand we    are dealing with a problem which centres round the medical ethics and as such it may    be appropriate to    notice    the broad responsibilities of such organisations who in the garb of doing service    to the humanity have continued commercial activities and have been mercilessly extracting money    from helpless patients and their family members and yet do    not provide    the necessary services. The influence exerted by a doctor    is unique. The relationship between the doctor    and the patient is not always equally balanced. The attitude of a patient is poised between trust in the learning of another and the general distress of one who is in    a state of uncertainty and such ambivalence naturally leads to a sense of inferiority and it is, therefore, the function of medical ethics    to ensure that the superiority of the doctor is not abused    in any manner.    It is a great mistake to think    that doctors    and hospitals are easy targets for the dissatisfied patient. It is indeed very difficult to raise an action of negligence. Not only there are practical difficulties in linking    the injury sustained with the medical treatment but also it is still more difficult to establish the standard of care in medical negligence of which a complaint can be made. All these factors together with the sheer    expense of bringing a legal action and the denial of legal aid to    all but the poorest operate to limit medical litigation in this country." It was further observed as under :    "In recent days there has been    increasing pressure on hospital facilities, falling standard of professional competence and in addition to all,    the ever increasing complexity of therapeutic and diagnostic methods and all this together are responsible for the medical negligence. That apart there has been a growing awareness in the public mind to bring the negligence of    such professional doctors to light.    Very often in a claim for compensation arising out    of medical negligence a plea is taken that it is a case of bona    fide mistake    which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In    the former case a court can    accept    that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of    the reasonable skill of a competent doctor." In this judgment, reliance was placed on the decision of the House of Lords in Whitehouse vs.    Jordan & Anr.    (1981) 1 ALL ER 267.    Lord Fraser,    while    reversing the    judgment of Lord Denning (sitting in the Court of Appeal), observed as under :    "The true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one    that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself out as having,    and acting with ordinary    care, then it    is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligence." The principles stated above have to be kept in view    while deciding the issues involved in    the present    case.    The facts which are not disputed are    that Smt. Santra,    respondent, had undergone a Sterilisation Operation at the General Hospital, Gurgaon, as she already had seven children and wanted to take advantage of    the scheme    of Sterilisation launched by the State Govt.    of Haryana. She underwent the Sterlisation Operation and    she was issued a certificate that her operation was successful. She was assured that she would not conceive    a child in future.    But, as the luck would have it, she conceived    and ultimately gave birth to a female child. The    explanation offered    by the officers of the appellant-State who    were defendants in    the suit, was that at the time    of Sterilisation Operation, only the right Fallopian Tube    was operated upon    and the left    Fallopian Tube was    left untouched. This explanation    was rejected by    the courts below and they were of the opinion, and rightly so,    that Smt. Santra had gone to the Hospital for complete and total Sterlisation and not for partial operation. The certificate issued    to her, admittedly, was also in respect of total Sterlisation Operation. Family Planning is    a National Programme. It    is being implemented through the agency of various    Govt. Hospitals and Health Centres and at    some places    through the agency of Red Cross. In order that the National Programme may be successfully completed and    the purpose    sought    may bear fruit, every body involved in    the implementation    of the Programme has to perform his duty in all earnestness and dedication.    The Govt. at the Centre as also at the State level is aware that India is the second most-populous country    in the world and in order that it enters    into an era of prosperity, progress and complete self-dependence, it is necessary that the growth of    the population is    arrested. It is with this end in view    that family    planning programme has been launched by    the Government which has not only endeavoured to bring about an awakening about the utility of family planning among    the masses    but has also attempted to motivate people to    take recourse to family planning through any of the known devices or sterilisation operation. The Programme is being implemented through its own agency by adopting various measures, including the popularisation of contraceptives and operation for    sterilising the male or female. The implementation    of the    Programme is thus directly in    the hands of the Govt. officers, including Medical Officers involved in the family planning programmes.    The Medical Officers entrusted with the implementation of    the Family Planning Programme cannot, by their negligent acts in    not performing the complete sterlisation operation, sabotage the scheme    of national importance. The people of the country who cooperate    by offering themselves voluntarily    for sterilisation reasonably expect that after undergoing    the operation they would be able to avoid further pregnancy and consequent birth of additional child.    If Smt.    Santra, in these circumstances, had offered herself for complete Sterilisation,    both the Fallopian Tubes should have    been operated upon.    The Doctor who performed the opeation acted in a most negligent manner as the possibility of conception by Smt. Santra was not completely ruled out as her    left Fallopian Tube was not touched. Smt.    Santra did conceive and gave birth to an unwanted child. Who has to bear    the expenses in bringing    up the    "unwanted child", is    the question which    is to be decided by us in this    case.    The amount    of Rs.54,000/- which has been decreed by the courts below represents the amount of expenses which Smt. Santra would have to incur at the rate of Rs.3,000/- per annum in bringing up the child upto the age of puberty.    The domestic legal scenario on this question appears to be silent, except one or    two stray decisions of the High Courts, to which a reference shall be made presently. Before coming to those cases,    let us have a look around the Globe. In Halsbury's Laws of England, Fourth Edition (Re- issue) Vol. 12(1), while considering the question of "failed sterilisation", it is stated in para 896 as under : "Failed sterilisation. Where    the defendant's negligent    performance of a sterilisation operation results in the birth of a healthy child,    public    policy    does not prevent the parents    from recovering damages for the unwanted birth, even though    the child may in    fact be wanted by the time of    its birth. Damages    are recoverable for personal injuries    during    the period    leading up to the delivery of the child, and for the economic loss    involved in the expense of    losing    paid occupation and    the obligation of having to pay for    the upkeep    and care of an unwanted child.    Damages may include loss of earnings for the mother, maintaining the child (taking    into account child benefit), and pain and suffering to the    mother." In Udale v. Bloomsbury    Area Health Authority [1983] 2 All ER 522, a woman who had approached Hospital Authorities for sterilisation was awarded damages not only for    pain and suffering on account of pregnancy which she developed as a result of failed sterilisation, but also damages for the disturbance of the family finances, including the    cost of layette and increased accommodation for the family. The Court, however, did not allow damages for future cost of the child's upbringing upto the age of 16 years,    on a consideration of public policy. The Court held that the public policy required that the child should    not learn that the Court had declared its life to be a mistake. The Court further held that the joy of having a child and the pleasure derived in rearing up that child have to be set off against the cost in upbringing the child.    The doctrine of public policy, however, was not followed    in Emeh v. Kensington and Chelsea and Westminster Area Health Authority [1984]    3 All ER 1044 = [1985] QB 1012 and it was held    that there was no rule of public policy which precluded recovery of damages for pain and suffering for maintaining the child. So also, in Thake v. Maurice [1984] 2 All ER 513 = [1986] QB 644, in which a vasectomy was performed on the husband who was also    told, subsequent to the operation,    that contraceptive precautions were not necessary. Still, a child was born to him and damages for the child's upkeep upto the seventeenth birthday were awarded, though for an agreed    sum. The Court of Appeal in    its judgment since reported in [1986] 1 All ER 497 = [1986] QB 644, held    that the joy of having a child could be set off    against    the trouble    and care in the upbringing of the child, but    not against    pre-natal pain and distress, for which damages    had to be awarded. In Benarr v.    Kettering Health Authority (1988) 138 NLJ 179, which related to a negligently performed vasectomy operation, damages were awarded for    the future private education of the child. In Allen v.    Bloomsbury Health    Authority [1993] 1 All ER 651, damages were awarded in the    case of negligence in the    termination of    the pregnancy and    it was held that these damages will include general    damages for pain and discomfort associated with the pregnancy and birth as also damages for economic loss being the financial    expenses for the unwanted child in order to feed, clothe and care for and possibility to    educate    the child till he becomes an adult. On these considerations, a general    and    special    damages including the cost    of maintaining the child until the age of 18 were allowed.    The judgment was followed in two other cases, namely, Crouchman v. Burke (1997) 40 BMLR 163 and Robinson v. Salford Health Authority [1992] 3 Med LR 270. In a    case in Scotland, namely,    Allan v. Greater Glasgow Health Board (1993)    1998 SLT 580, public policy considerations were rejected and cost of rearing the child was also awarded. In three cases in the United States of America, namely, Szekeres v. Robinson (1986)    715 P 2d 1076;    Johnson v. University Hospitals of Cleveland (1989) 540 NE 2d 1370 (Ohio) and Public Health Trust v. Brown (1980) 388 So 2d 1084, damages were    not allowed for rearing up the child. In the first of these three cases, the Supreme Court of Nevada refused to award damages    for the birth of an unwanted child even though    the birth was partially attributable to the negligent conduct of the doctor attempting to prevent the child birth. In    the second case, it was held that the parents could recover only the damages for the cost of the pregnancy, but not the expense    of rearing an unwanted child. The basis of    the judgment appears to be the public policy that the birth of a normal,    healthy child cannot be treated to be an injury to the parents. In the third case in which the claim    was preferred by a woman    alleging that the sterilisation operation performed upon her was negligently    done which resulted in pregnancy for a child which she never wanted, the Supreme Court of Florida was of the opinion that "it was a matter of universally-shared emotion and sentiment    that the tangible but all-important, incalculable but invaluable `benefits' of    parenthood far    outweigh any of the    mere monetary burdens involved." However, in another case arising in the    United States, the Supreme Court of New Mexico in Lovelace Medical Center v. Mendez (1991) 805 P 2d    603 allowed    damages in the form of reasonable expenses to raise the child to    majority as it was of the opinion that    the prime motivation for sterilisation was to conserve family resources and    since it was a failed    sterilisation case, attributable to the negligent failure of Lovelace Medical Center,    the petitioner was entitled to damages. In a South African case in Administrator, Natal v.    Edouard 1990 (3) SA 581, damages were awarded for the cost of maintaining    the child in a case where sterilisation of the wife did not succeed. It was found in that case that the wife    had submitted for sterilisation for socio-economic reasons    and in that situation the father of the child was held entitled to recover the cost likely to be incurred for    maintaining the child. In a Newzealand case in L v. M [1979] 2 NZLR 519, the court of appeal refused to allow cost of rearing a child.    In a    case from Australia, namely, CES    v. Superclinics (Australia) Pty. Ltd. (1995) 38 NSWLR 47, the expenses involved in rearing the child were not allowed. In this case, a woman who was pregnant, claimed    damages for loss of the opportunity to terminate the pregnancy which Doctors    had failed to diagnose. The claim was dismissed by the trial judge on the ground that abortion would have been unlawful. Meagher JA discounted the claim altogether on the ground of public policy, but the other Judge, Kirby A-CJ was of the opinion that the woman was entitled to damages    both for the pain    and suffering which she had to    undergo on account    of pregnancy as also for the birth and the cost of rearing    the child. But he thought that it would be better to offset against the claim of damages, the value of    the benefits which would be derived from the birth and rearing of the    child.    He was of the opinion that the matter of setting    off of nett    benefits against the    nett injury incurred would depend upon the facts of each case. In    the result,    therefore, he agreed with Priestley JA, that    the ordinary expenses of rearing the child should be excluded. Priestley JA was of the view that, "The point in the present case is that the plaintiff chose to keep her    child.    The anguish    of having to make the choice is part of the damage caused    by the    negligent breach of duty, but the    fact remains, however, compelling the psychological pressure on the plaintiff    may have been    to keep the    child,    the opportunity of choice was in my opinion real and the choice made was voluntary. It was this choice which was the cause, in my opinion, of the subsequent cost of rearing the child." From the above, it would be seen that the courts in    the different countries are not unanimous in allowing the claim for damages for rearing up the unwanted child born out of a failed    sterilisation operation. In some cases, the courts refused    to allow this claim on the ground of public policy, while in many    other,    the claim was    offset    against    the benefits derived from having a child and the pleasure in rearing    up that child. In    many other cases, if    the sterlisation was undergone on account of social and economic reasons, particularly in a situation where the claimant had already    had many children, the court allowed the claim    for rearing    up the child. In State of    M.P. & Ors.    vs. Asharam, 1997    Accident Claim Journal 1224, the High Court allowed    the damges on account of medical negligence in    the performance of    a family planning operation on    account of which a daughter was born after fifteen months of the    date of operation.    No other decision of any High Court has come to our    notice    where damages were awarded on    account of failed sterilisation operation. Ours is a developing country    where majority of the people live below the poverty line.    On account of the ever-increasing population,    the country    is almost at the saturation point so far as    its resources are    concerned. The principles on the basis of which damages    have not been allowed on account of failed sterilisation operation in other countries either on account of public policy or on account of pleasure in having a child being offset against    the claim for damages cannot be strictly applied to the Indian conditions so far as    poor families are concerned. The public policy here professed by the Government is to control the population and that is why various    programmes have been launched to implement    the state-sponsored    family    planning programmes and policies. Damages for the birth of an unwanted child may not be of any value for those who    are already living in affluent conditions but those who live below the poverty line or who belong    to the    labour class who earn their livelihood on daily basis by taking up the job of an ordinary labour, cannot be denied the claim for damages on account of medical negligence. It is, no doubt, true that the    parents    are under an obligation to maintain their minor children.    This is a moral, apart from a statutory, liability in view of the provisions contained in Section 125 of the Code of Criminal Procedure. It is also a statutory liability on account of Section    20 of the Hindu Adoptions and Maintenance Act which provides as under:- "20. (1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate children and his or    her aged or infirm parents. (2) A legitimate or    illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor. (3) The obligation of a person    to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried    daughter, as the case may be, is unable to maintain himself or herself out of his or her own earning or property. Explanation.- In this section "parent" includes a childless step-mother." "Maintenance" would obviously include provision for food, clothing, residence, education of the    children and medical attendance or treatment.    The obligation to maintain besides being statutory in nature is also personal    in the sense that it arises from the    very existence of the relationship between parent and the child. The obligation is absolute in terms and does not depend on the means of the father or the mother. Section 22 of    the Act sets out    the principles for computing the amount of maintenance. Sub-section (2) of Section 23 provides that in determining the amount of maintenance, to be    awarded to children, wife    or aged or infirm parents, regard shall be had to    the position    and status of    the parties;    the reasonable wants of the claimant; if the claimant    was living    separately, whether the claimant was justified in doing so; the value of the claimant's property and    any income    derived from such property, or from the claimant's own earnings or from any other source and the number of persons    entitled to maintenance under the Act.    But we    are not concerned    with these factors in the instant case. A reference to Section    23 of    the Hindu Adoptions    and Maintenance Act has been made only to indicate that a Hindu father    or a Hindu mother is under a statutory obligation to provide    maintenace to their children.    Similarly, under the Mohammedan Law, a father is bound to maintain his sons until they have attained the age of puberty.    He is also bound to maintain his daughters until    they are married. [See: Mulla's    Principles of Mohammedan Law (19th Edn.) Page 300]. But the statutory liability to maintain the children would not operate as a bar in claiming damages on account of tort of medical negligence in not carrying out the sterilisation operation with    due care and responsibility. The    two situations are    based    on two different principles.    The statutory as well as personal liability of the parents to maintain their children arises on account of the principles that if a person has begotten a child, he is bound to maintain that child. Claim for damages, on the contrary, is based on the principle that if a person has committed civil wrong,    he must pay compensation by way of damages to    the person    wronged. Under every system of law governing    the patriarchal society, father being a natural guardian of the child,    is under moral liability to look after and maintain the child till he attains adulthood. Having regard to    the above discussion, we are positively of the view that in a country    where    the population is increasing by the tick of every second on the clock and the Government had taken up the family planning as an important    programme for    the implementation    of which it had created mass awakening    for the use of various    devices including sterilisation operation, the    doctor as also the State must be    held responsible in    damages if the sterilisation operation performed by him is a failure on account of his negligence, which is directly responsible for another birth in the family,    creating additional economic burden on the person who had chosen to be operated upon for sterilisation.    The contention as    to the vicarious liability of the State    for the negligence of its officers in performing    the sterilisation operation cannot be accepted in view of    the law settled by this Court in N. Nagendra Rao & Co.    vs. State of A.P., AIR 1994 SC 2663 = (1994) 6 SCC 205; Common Cause, A Regd.    Society vs. Union of India & Ors. (1999) 6 SCC 667 = AIR 1999 SC 2979 and Achutrao Haribhau Khodwa & Ors. vs. State of Maharashtra & Ors.    1996 ACJ 505.    The last case, which related to the fallout of a sterilisation operation, deals, like the two previous cases, with    the question of vicarious liability of the State on account of medical    negligence of a doctor in a Govt. hospital.    The theory of sovereign immunity was rejected. Smt. Santra, as already    stated above, was a poor lady who already had seven children. She    was already under considerable monetary burden.    The unwanted child (girl) born to her has created additional burden for her on account of the negligence of the doctor who performed sterilisation operation upon    her and, therefore, she is clearly entitled to    claim    full damages    from the State Govt. to enable her to bring up the child at least till she attains puberty. Having regard to the above facts, we find no merit in this appeal which is dismissed but without any order as to costs.

Jasbir Kaur And Another vs State Of Punjab And Others
Equivalent citations: 1995 ACJ 1048, AIR 1995 P H 278, (1995) 110 PLR 343
Bench: R Sethi, S Sudhalkar - Punjab-Haryana High Court - Date of Judgment: 8 March, 1995

ORDER R.P. Sethi, J.

1. The tragic facts of the case and barbaric attitude of the respondent-authorities reminds one of the premitive mediaeval age when man was treated like an animal and deprived of the virtues of a civilised society. At this stage of the winding up of the twentieth century and when we are at the door steps of the twenty-first century, the heads of civilised society would bow in shame to know about the facts of the case and the treatment meted out to a newly born child who is alleged to have been taken away by a cat in a Government owned and managed hospital. The woeful story has been narrated by the parents of the unfortunate child who have in desparation prayed for an inquiry through the Central Bureau of Investigation and in frustration have prayed for the grant of compensation tor rehabilitation and upbringing of the said child. It is unfortunate that despite admitting the facts narrated in the petition, the respondents have chosen to resist this petition on frivolous grounds and false pretexts.

2. The petitioner Jasbir Kaur, mother of the unfortunate child is shown to have been admitted in Shri Guru Teg Bahadur Hospital, Amritsar, on 24th June, 1993, allegedly in a serious condition of leakage. She was subjected to Sonography and after caesarean operation on 25th June, 1993, a healthy normal male child is stated to have been born to her at 6.00 p.m. The operation is stated to have been conducted by Dr. Harinder Kaur. It is submitted that no arrangements are made for any cradle for separately keeping the children born through caesarean operation for the people belonging to lower strata, termed as poor. The parents of the child and the relations were told that the mother and child should not sleep together on one bed because of the fear of infection. Under these circumstances, the child was kept with the relative of the petitioners on the intervening night of 25th-26th June, 1993. The electric light is alleged to have gone off suddenly in the maternity ward and the attendant sleeping with the child found the child missing from her side. Hue and cry was raised and search was made in the hospital premises, resulting in the discovery of the child in a profusely bleeding condition, with one eye totally gouged out along with the eyeball. The child in such a condition was found near the wash basin of the bathroom. The matter was brought to the notice of the authorities for holding an inquiry as the parents genuinely and bonafidely believed that their child had been replaced with a damaged eye child. As no action was taken, Smt. Vimla Dang, M.L.A., from Amritsar, was approached who thereafter made inquiries and wrote letters to the authorities for taking action in the matter. Despite registration and investigation of the case, no action was taken by any of the authorities, of the respondent-State, forcing the petitioners to approach this Court for the grant of relief by handing over the case to the Central Bureau of Investigation, an independent agency, for investigating the case in which the child of the petitioners was allegedly replaced or exchanged with another child or to ascertain the circumstances in which the child is stated to have been lifted by a cat and his one eyeball was gouged out. It was further prayed that the hospital authorities be directed to make proper arrangements and ensure proper working in the hospital and not to play with the lives of the human children by exposing them to be wasted at the hands of the animals like cats. It was alternatively prayed that the petitioners be awarded a compensation to the extent of rupees ten lakhs for negligence, callousness and carelessness of the respondents.

3. In reply, it is submitted that a preliminary inquiry was conducted in which it is stated to have been established that incident had occurred due to the negligence of the family members of the newly born child. Even after recording of F.I.R. No. 112 dated 8th July, 1993, the matter was investigated and it was found that the allegations made were false and frivolous. It is submitted that the Inquiry Officers appointed in the case have totally ruled out the possibility of any of the circumstances in which the child of the petitioners was allegedly replaced or exchanged with another injured child by the doctor/staff of Shri Guru Teg Bahadur Hospital, Amritsar. The Inquiry Officers also ruled out the possibility of taking out the eye of the newly born child for transplantation.

The petitioners are stated to be not entitled to any compensation in view of the alleged admission made by them in their statements recorded on 26th June, 1993. The admission of the petitioner mother in the hospital and the birth of a normal healthy newly born child is admitted. It is submitted that at the time of his birth the child did not have any injury on any part of his body and no negligence or callousness can be attributed to the respondents in treating the patient in the way as alleged in the writ petition. It is submitted that the patients are admitted and treated in the hospital irrespective of their caste, creed and economic status. It is, however, admitted that the electricity went off suddenly during the night intervening 25th-26th June, 1993. It is, further, submitted that at that time the grandmother of the child went outside to fetch a hand fan from her husband leaving the child with the sister-in-law of Jasbir Kaur, petitioner. At that time, the staff nurse on duty heard the cries of a child from the adjacent bathroom where she and class IV employees on duty with the help of the relatives of petitioner No. 1 and other patients searched for the child with the help of a torch and found the child injured in the said bathroom. It is contended that no fundamental or legal right of the petitioners has been infringed as claimed in the writ petition and the same is liable to be dismissed.

4. We have heard the learned counsel for the parties and perused the records.

5. The learned counsel appearing for the petitioners pleaded before us the helplessness of the petitioners in pursuing the matter any further by getting an inquiry conducted through the Central Bureau of Investigation. The petitioners, on account of their poverty, argued the learned counsel, apprehend that further proceedings or inquiry in the case may not deprive them even of the child who is being brought up by them at present. It is further submitted that the handicapped child may ultimately grow with the impression of being a stranger child to the family if the patitioners fail to get any child in exchange. It is submitted that on account of their social status, poverty and the delay caused in the case, the petitioners may not be in a position to substantiate the allegations so far as the exchange or replacement of the child is concerned. Relief for banding over the case to the Centra] Bureau to Investigation for further investigation is, therefore, neither insisted nor ganted.

6. The admission of petitioner No. I in the Shri Teg Bahadur Hospital, Amritsar, and the delivery of a normal healthy male child is not disputed by the respondents. The child being injured by a cat in the hospital premises is also admitted. The only ground of resisting the prayer of the petitioner for compensation is that the injury caused to the infant child is attributable to the negligence and carelesness of the attendants of the patient and not to the employees of the respondents. Shri Guru Teg Bahadur Hospital, Amritsar, is admittedly a Government owned and managed hospital. The protection, safety and provision for treatment in the said hospital is the responsibility of the respondent State for which none else can be blamed. It is not disputed that none else than the respondents are responsible for the safety of the patient and the newly born child in the hospital. The prevalent system in the hopital and the law cast a duty upon the respondents to properly maintain and provide medical facilities to the mother and the infant child. The failure on the part of the respondents to properly maintain and provide medical facilities makes liable to compensate, if an injury not connecting with the treatment is caused either to the patient or to the newly born child. Such injury in the Government owned and managed hospital would, in law, be attributable to the negligence of the respondents and such a presumption could be rebutted by producing positive evidence that they had been maintaining the hospital and its services in accordance with the standards accepted and minimum safeguards provided. As and when it is proved that a citizen received such an injury in a Government owned and managed hospital, there is a presumption of fact that there had been negligence of proper care and caution on the part of the hospital entrusted with the job of providing medical facilities and ensuring safety to the lives of the patients. The maxim res ipsa loquitur is a principle which aids the Court is deciding as to the stage at which the onus shifts from one side to the other, where a particular state of affair is shown to be under the management of a department or their servants and the accident takes place which in the ordinary course of things would not happen, it affords reasonable evidence in the absence of explanation by the respondents that the accident arose for want of care. Winfield in his famous Treatise on Tort, has mentioned two requirement to attract the above principles. They are (i) that the 'thing' causing the damage be under the control of the defendant or his servants, and (ii) that the accident must be such as would not in the ordinary course of things have happened without negligence. This principle has been approved and recognised by the Supreme Court of India in Sayad Akbar v. State of Karnataka, 1980 Acc CJ 38 : (AIR 1979 SC 1848) (Para 19) wherein it was held:

"The rule of res ipsa loquitur in reality belongs to the law of Torts. Where negligence is in issue, the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambigous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. The event or accident must be of a kind which does not happen in the ordinary course of things, if those who have the management and control use due care. Further the event which caused the accident must be within the defendants' control. The reasons for this second requirement is that where the defendant had control of the thing which caused the injury, he is in a better position than the plaintiff to explain how the accident occurred."

7. Testing on the touchstone of the principle laid down by the renowned jurists of English Courts and the Supreme Court of India and on admitted facts it is established that the child was taken away by the cat and was recovered from the bathroom. The taking away of the child and the consequent injury is attributatble only to the negligence of the staff members of the hospital who were under a moral and legal obligation to provide security to the patient admitted therein and their newly born children.

8. Article 21 of the Constitution of India provides that no person shall be deprived of his life and property except according to the procedure established by law. The term "life" used in Article 21 is not only restricted to the mere nominal existence but extends to the inhibition against its deprivation to all those limits and faculties by which life is enjoyed. This Article is wide and of far reaching consequences. As and when life in any form or to any extent Is taken away or endangered by any functionary of the State, a duty is cast upon the State representing the will of the people to compensate the victim by granting adequate compensation. The monarchial rule has to be distinguished from democratic set up and the State cannot shirk its responsibility to protect the life, liberty and property of the citizens. The maintenance of law and order and providing adequate facilities in the Government Hospitals is the responsibility of the Government who cannot abdicate its functions and allow the life and liberty of citizens to be in jeopardy on technical pleas and false pretexts as projected in the reply of the respondents. We are, therefore, convinced that the respondent State is liable to compensate the petitioners for the damage done to their child on account of the negligence of the staff of the hospital owned and managed by the respondent State.

9. Even though the petitioners have claimed a sum of rupees ten lakhs as compensation, we are of the opinion that though the damage caused to the child is of a permanent nature, yet the interests of justice would be served if a reasonable amount is awarded as compensation for the up-bringing and education of the said child for his ultimately respectable settlement in the society. In our opinion, the award of rupees one lakh as damages would meet the ends of justice. We hold the child entitled to the payment of rupees one takh as compensation for the injury caused to his person. The aforesaid amount of compensation of rupees one lakh shall be paid by the respondents to the petitioners who would deposit the aforesaid amount in some nationalised bank in the form of a fixed deposit receipt payable to the child on his attaining the age of majority. The interest payable on the aforesaid amount shall periodically be paid to both the petitioners for the maintenance of the child, provided they live together. If the petitioners ever decide to dissolve their marriage, appropriate directions shall be obtained from the Court for the disbursement of the amount of interest in favour of the child. With the above directions, this petition is disposed of.

10. Order accordingly.

(16) From the evidence which has come on record it can be seen that the involvement of kidney ailment was not there initially when she was admitted on 1st July, 1978. She was found to be suffering from anemia, therefore, treated for anemia and after conducting the necessary tests for the kidney of anemia, blood transfusion was recommended besides giving iron supplements. It has also been explained that high blood pressure is not necessarily indicative of kidney involvement.

(17) In the testimony of defendant No. 1 it has been stated that a possible kidney problem was not ruled out on 1st July, 1978 and that is why all the tests were carried out to find out if there was any kidney ailment. Since that was ruled out after test reports hence the direction of the treatment was focussed on anemia. Treatment for that was accordingly given. This course of treatment has been approved and confirmed by Dr. N. S. Dixit and Dr. D. S. Rana. Specialists in their field.

(18) Plaintiff appearing as his on witness could not point out any discrepancy in the treatment given to the deceased. His only grievance had been that nephrology ought to have been consulted at the first instance on 1st July, 1978 itself. Non-consultation has been convincingly explained by the defendants. As discussed above, since the blood tests and urine and cretonne tests and blood pressure were -normal, therefore, involvement of kidney was ruled out. Defendant No. 1 explained that nephrology was not consulted at that stage because kidney involvement was not manifested by them. In this view of the matter, this act of the defendant No. 1 for not consulting a nephrology cannot constitute an act of negligence. Similarly, administering of blood transfusion has been justified. see no reason to disbelieve the explanation given by these doctors appearing as witnesses. Rather from the unrebutted and uncontroverted testimony of Dr. D. S. Rana, Dr. N. S. Dixit and that of Defendant No. 1 it stands established that in the circumstances in Which the patient was admitted this was the right course of treatment which any prudent doctor ought to have given and the same was provided by defendant No. 1. As regards dialysis the defendants cannot be held responsible for various reasons, namely, the plaintiff knew that there was no provision of dialysis at Sir Ganga Ram Hospital yet he choose to get his wife admitted there. Hospital record shows the plaintiff removed the patient from the said hospital against medical advise and finally it was a costly affair. Smt. Gayatri Devi was admitted as patient in free patient ward. For these reasons if dialysis was not done then defendant No. 1 cannot be blamed for the same. In fact except for finding possible alternative medical course of treatment, the plaintiff has not been found any palpable neglect in the course of treatment decided and given by the defendant No. 1 as confirmed by Dr. N. S Dixit and Dr. D. S. Rana.

(19) As regards bad nursing and unnecessary catheterization that has been admitted by the defendant No. 1 in his letter Ex. E1/1 dated 5th November, 1978. He, however, tried to explain it away by saying it was normal affair in the hospital. Though catheterisation may have been necessary as explained by the doctors because of patient having been given antibiotics and in that semi-conscious state she had been passing urine in the bed. But the nursing staff of the hospital had no right to be negligent and allow the urine to spread on the bed or allow the catheter to leak. The nurse and staff could not be careless in the discharge of their duties towards a patient. It has all along been the complaint of the plaintiff that his wife suffered on account of bad nursing and her life shorten because of the same. She developed bed sores which ultimately made her life not only uncomfortable but miserable. The fact that there was nursing and patient developed bed sores has been admitted by Dr. Pradeep Mathur in his letter Ex. D1/1 dated 5th November, 1978. Therein he stated that there was leakage of catheter and the patient developed bed sores because of bad nursing. He admitted vide Ex. D1/1 that good nursing could have postponed the development for a couple of days, but bed sores do invariably develop in a patient lying down for such a long time. Deterioration is a usual story with all chronic renal failures. Bad nursing may not have been the pause of the death of Smt. Gayatri Devi but bad nursing hastened the end. It cannot be ruled out in view of the admission, made by defendant No. .1 vide exhibit D.1/1. Because of bad nursing not only the patient suffered even the plaintiff who was attending upon her also suffered mental torture and agony. From the testimony of the plaintiff-coupled with the admission made by defendant No. 1 vide Ex. D1/1, negligence of defendant No. 2 is clearly established. But at the same time we cannot loose sight of the fact that bed sores. and bad cursing was not the cause of Gayatri Devi's death, it may have contributed in hastening her death. Therefore, to this extent defendant No. 2 is held responsible. issue No. 9, 10& 11 (20) Issues 9, 10 & 11 are taken up together because these are inter-connected and linked. These can be disposed of by one order. In the written statement the defendant No. 1 has raised a counter claim against plaintiff on the allegation that he had been defamed by the plaintiff's acts. The question whether the counter claim is barred by time has a direct bearing on the claim set up by the defendant No. 1. Defendant in. order to establish that he suffered loss of reputation adduced evidence of Sh. A. P. Mathur, D2WI, Administrative Officer of the defendant No. 2. He further proved that defendant No. I was declined the post of Hony. Consultant because of the controversy raised by the plaintiff. To the same effect is the evidence of Dr. N. S. Dixit. D2W2. He was the Member of the Selection Committee. According to Dr. N. S. Dixit, defendant No. I was not considered for the post of Consultant. To my mind, non-consideration of defendant for the post of Hony. Consultant on account of the allegations levelled by the plaintiff does not by itself mean that he had been defamed. Nor it proves that the hospital Administration or Sr. Consultant considered the defendant No. 1 less meritorious or that they started thinking of defendant No. 1 i anyway inferior professionally. Admittedly, plaintiff had raised the controversy regarding proper or non-providing of proper or non providing of proper treatment to the plaintiff's wife. Plaintiff had the bonafide belief that had the defendant No. 1 consulted the nephrology at the very initial stage perhaps his wile could have lived longer. It cannot be said that this presumption of the plaintiff was imaginary. Defendant No. 1st letter exhibit D.1/1 does indicate that defendant No. 1 after preliminary investigations was of the view that Smt. Gayatri Devi's kidney was involved. If a doctor could form such an impression then why the plaintiff could not think so and allege that for kidney treatment a Neurologist should have been consulted. Since the renal failure was not detected inspite of various tests, therefore, they did not consult the nephrology. But, the fact remains that defendant No. 1 in his letter Exhibited D1/1 admitted that after examining the deceased he formed an opinion that her basic problem was kidney disease. Therefore, the presumption of the plaintiff based on defendant No. 1's opinion cannot be called imaginary. To ex- press a grievance strongly against a. professional does not. amount to defamation by any stretch of imagination. Difference of opinion on the basis of which the plaintiff alleged negligence on the part of defamation by any stretch of imagination. Difference of opinion on layman after consulting other doctors found that blood transfusion ought not to have been given, which doubt he expressed to the defendant No. 1 when he wrote a letter on 14th October. 1978 i.e. Ex. D1. though clarified by defendant No. 1 vide his letter dated 5th November, 1978, Ex.D-1/1. Therefore, if the controversy was raised by the plaintiff regarding the treatment given to his wife that by itself will not amount to lowering the status of the defendant No. 1. So far as defendant No. 2 is concerned, the defendant No. I in his letter Ex. D-1/1 in no uncertain words admitted the negligence of nursing staff. He admitted that there was a bad nursing and leakage of cathetar. He also admitted that good nursing could have postponed the development of bedsores for couple of days. Therefore, being a husband he underwent mental torture and agony by seeing his wife suffering and not being properly looked after by the nursing staff of the hospital. There was leakage of cathetar. bedsores, then naturally plaintiff was bound to complaint. He complained to Medical Council of India or for that matter to different authorities. That by itself would not amount to lowering the status of the defendant No. 1. Filing of a case or raising a bonafide controversy regarding treatment given would not constitute defamation. If for raising this controversy, hospital authorities did not consider the candidature of defendant No. I for the post of Hony. Consultant. The plaintiff cannot be blamed for the same. In fact if he hospital authorities were satisfied that there was no negligence on the part of defendant No. I in discharging of his duties as a doctor and that he worked only as a Registrar under Dr. N. S. Dixit and was not responsible in any manner for the treatment, then the complaints filed by the plaintiff would not have come in the way of the defendant No. 1 for the post of Hony. Consultant. For these reasons I find no merit in the counter claim. Even otherwise the counter claim is barred by time. Article 75 of the Limitation Act prescribes a period of one year for raising a claim for defamation and libel. In this case complaint is dated 20th April, 1979. The incident leading to filing of FIR. took place in August. 1979. Therefore, cause of action arose to defendant No. I in August. 1979. Petition ought to have been filed within one year. Having not done so. the counter claim is barred by time. The contention of Mr. Jagdeep Kishore that cause of action arose on 17th August. 1981 when the plaintiff lodged a criminal complaint in the court on the basis of Fir lodged by the plaintiff, to my mind, has no force. The cause of action did not arise on the filing of complaint in Court, it arose as per his own showing when the Fir was lodged in 1979 and the police called him in the Police Station in the presence of his relations.. That was the time when cause of action arose in favor of defendant No. 1. He having filed the counter claim on 12th April, 1982 for damages beyond, one year hence the counter claims cannot be entertained being time barred. Issues decided accordingly. Issue NO. 11-A & 7 (21) Mr. Jagdeep Kishore at the outset had stated that the issue of limitation be treated as preliminary issue and be decided without deciding other issues on merits. It was made clear that since the issue of limitation is not a pure issue of law but based on mixed questions of tacts and law hence cannot be treated as preliminary issue.

(22) Rule 2 of Order 14 Civil Procedure Code lays down that notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. Sub-rule (2) of Rule 2 of Order 14 further provides that it is only issue of law which has to be tried first, particularly if that issue relates to the jurisdiction of the Court or creates a bar to the institution of a suit on accouant of any law for the time being in force. The question of limitation is a mixed question of law and facts hence has to be taken up Along with other issue on merits.

(23) Mr. Jagdeep Kishore then urged that since this can only be filed under the (The Indian) Fatal Accidents Act, 1855 (In. short the Act), therefore, provisions of Section 1A of that Act arc relevant for determining the question of liability to pay damages. The claim. of damages amounting to Rs. 1,25.000.00 admittedly does not give any break up. This lumpsum amount has been claimed under four heads as stated earlier. Mr. Jagdeep Kishore contended that in the absence of any break up the claim cannot be entertained The reason why claim be rejected, Mr. Jagdeep Kishore contended would depend upon the decision on issue No. 11A. Since this suit could be filed only under Fatal Accident Act, therefore, as per Article 85 of the Limitation Act, the suit having been filed after two years is barred by time. Moreover, under Section 1A of the Fatal Accident Act plaintiff being husband of the deceased cannot make any claim on account of suffering of the deceased.

(24) The maintainability of the claim for damages on account of the agony suffered by Smt. Gayatri Devi that cannot be claimed by the plaintiff in a representative capacity. As husband he can claim damages either under the Fatal Accident Act or under the Motor Vehicle Act. Mr. Narottam Vyas's contention that plaintiff could claim damages under general law of tort. to my mind. has no sub- stance. Even a case based on Tort has to be under one or the other provision of some Act. Admittedly, the plaintiff has claimed a lump- sum amount against all the four heads. The question for determination is whether the plaintiff can claim damages for the agony and suffering undergone by his wife ? The answer is in negative. Section 1A of the Act which is reproduced as under : Section 1A : Suit for compensation- to the family of a person for loss occasioned to it by his death by actionable wrong. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would' (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action' or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime. Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whoso death shall have been so caused, and shall be brought by and in the name of the executor, administrator of representative of the person deceased; And in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the Court by its judgment of decree shall direct.

(25) The provision of this Section clearly stipulate that being the husband of the deceased he can claim damages, for the death of Smt. Gayatri Devi due to negligence by the defendants. This Section deals with claims to be preferred on the death of a person caused by willful act neglect or default. The claim can be preferred for the benefit of the wife, husband, parents and child, if any, of the person whose death has been so caused. Death will include the suffering but a separate claim on account of suffering cannot be lodged. He can, however, claim for the loss of the company of his wife and connected with that any loss suffered by him in fact in the case shri Kishan Lal through LRs & Ors. Vs. Shri Mood. Din & Ors., this court awarded compensation to the legal heirs of the deceased for the Joss of the life of their dear one. To the same effect are the observations in the case of Regan Vs. Williamson, 1976 I Wlr 305(2) where the court held that husband is required to be compensated for the loss of company as well as for the death of his wife which amounts to pecuniary loss for domestic services rendered by her. Plaintiff is claiming damages on account of the negligence of the defendants. Such a claim as representative of the deceased he can make only under the Fatal Accident Act as held by this Court in the case of Smt. Shakuntala Devi Vs. M.C.D., 1985 Acj 205 .(3) Thus the claim of the plaintiff can only be scrutinised under the said Act.

(26) Section 2 of the said Act deals with the claim for loss to the estate of the deceased occasioned by such wrongful act, neglect or default, which sum when recovered shall be deemed part of the estate of the deceased. Claim under Section 2 of the said Act has lo be inserted in the suit filed under Section 1 A of the said Act. For raising the claim under Section 2 of the said Act, the period prescribed under Article 82 of the Limitation Act in two years from the date the cause of action accrued.

(27) Article 82 of the Limitation Act deaths with suits to be filed by the executor, administrator and legal representatives under Section , of the Act. Since under the Act only one suit can be brought, therefore, the period of limitation prescribed under Article 82 would apply to a claim under Section 1A as well as under Section 2 of the Act. In this regard he placed reliance on the decision of this Court in- the case of Smt. Shakuntala Devi V. Mcd 1985 Acj 255. The question of limitation arose in that case. The Court was confronted with a question whether the claim on the basis of negligence of Mcd could be brought with in six months under the D.M.C. Act or the claimant, would be entitled, to bring their claim under the general law. After considering various provisions of law the Court opined that since the death was caused by negligence on the part of the Mcd, hence the claim of the petitioner was covered under the Fatal Accident Act and the period of limitation would be two years. So relying on this judgment, Mr. Jagdeep Kishore contended that in this case also as the claim of the plaintiff is based on the allegation of negligence and carelessness on the part of defendants, therefore, at best his claim can be covered under the Act. The period of limitation would be two years which in this case expired in August. 1980. Whereas the suit has been filed in February, 1981, i.e. after the expiry of limitation hence the suit is barred by time. Mr. Jagdeep Kishore then contended that the provision of Motor Vehicles Act are not attracted in this case. la order to sfreng then his arguments that the claim based on negligeace. and pecuniary loss caused on the death of the person are covered by the Patal. Accidents Act, he placed reliance on the decision of Supreme Court in the case of Gobald Motor Services Vs. R.M.K. Veluswami & Ors. .(4) In that case the claim was based on the rash and negligent driving resulting in the death. The family claimed compensation. The Supreme Court instead of awarding compensation under the Motor Vehicle Act, which was in force, yet covered the actionable wrong under the Fatal Accidents Act. The Fatal Accidents Act provides for compensation to family members for the loss occasioned on the death of a person caused by an actionable wrong. The allegation of negligence. carelessness and rashness are actionable wrong and. therefore, case of the plaintiff has to he covered under the Act and not under any other provision of law. He further relied on the case of Dr. Laxman Balkrishnan Joshi Vs. Dr. Trimbak Bapu Godhole & anr.. .(5) The case to that claimant was considered under the provisions of Fatal. Accidents Act for the purpose of awarding the damages. Therefore, any claim based on actionable wrong by the family of the deceased has to be under this Act. The limitation. being two years from the date of death of the person. In. the present case death accrued on 21st August, 1978, hence limitation expired' on 20th August, 1980. The suit having been filed beyond that period is barred by time (28) Mr. Narottam. Vyas controverting the averments of Mr. Jagdeep Kishore placed reliance on the residuary A ruck 113 of the Limitation Act under which the limitation prescribed for a suit to be filed is three years from the date when the right to sue occurred. According to Mr. Vyas, the right to sue for damages arose for the first time on 1st July, 1978 when the plaintiff's wife was admitted in the Hospital and she was deprived of the assistance of a nephrology and Dialysis facility was also not provided to her. Ultimately when she died on 21st August, 1978, thereby, depriving the plaintiff her company leading to recurring financial loss. The plaintiff's claim is not merely based on account of the death of his wife but also on account of the mental and physical torture he underwent while attending his wife in the hospital. Thus, his case is nut merely based on account of the death of his wife but also on account of being deprived of her company and the mental, agony suffered by him during her life time on account of being neglected by nurses and non-proper treatment. Therefore, Mr. Vyas contended that. his case cannot be covered under the provisions of Article 82 of the Limitation Act. It is only the. residuary Article 113 of the Act which will attract to the facts of this case. The said Act prescribes three years us the period, of limitation. Mr. Vyas further contended that suit has been filed under the general law of damages, therefore the provisions of Fatal Accident Act are not attracted In this regard he has placed reliance on the decision in the case of averments Vs. Tedesco. 1926 (2) Kb page 227(6, Mr. Vyas further contended that the cases cited by the defedants a distinguishable because in all those cases family members of the deceased made the clai    m on account of loss or the death of the per son. But in this case the plaintiff beside claiming loss of company of the death of his wife has also claimed damages on account of th mental agony suffered by him due to the negligence and callous attitude of the defendants during the time she remained under the treatment of defendant No. 2 as well as of the defendant No. 1 from 1st July. 1978 to 21st August, 1978.

(29) Arguments advanced by both the parties appear to be very attractive at the first glance and these are mind boggling. Mr. Vyas admits that if it was :i case only of claiming compensation or damages on account of the death of plaintiff's wife then the case would be covered under the Fatal Accidents Act. But, since his claims are based on four different heads and one of the claim being damages for mental agony suffered by the plaintiff, therefore, his case would be covered under the general law and not by this Act. Even otherwise Section I A and Section 2 of the said Act are. distinct. different and independent. The cause of action under Sections 1A & 2 of the Act arc different The Act lays down two heads of damages under Section 1A i.e. right to ask for damages is dealt with while Section 2 gives right to claim damages of any pecuniary loss to the esta.te of the deceased. Therefore, to this extent the contention of Mr. Vyas appears to be Justified that his claim, is not purely based on the loss caused by the death of his wife but also because of the suffering he underwent on account of the bad nursing done by the defendant No. 2 and also according to him for the improper treatment given by the defendant No. 7. Therefore, his all claims cannot be squarely covered under Article 82 of the Limitation Act, Moreover Article 82 of the Limitation Act. deals only with claims covered under Section 2 of the Act. The cause of action under both the sections i.e. Sections 1 & 2 of the Act being different, therefore. Article 82 as such cannot apply to a case falling under Section 1 of the said Act. But so far as the loss on account of death of his wife is concerned that would apparently be barred because the case has been filed after more than two years.

(30) Now, so far is the question. of damages on account of mental agony is concerned, the plaintiff has not claimed any specific amount. He has claimed reasonable compensation on this account. As already observed while deciding Issues No. 6 and 8 that there was bad nursing by defendant No. 2. which fact has been admitted by the defendant No. 1 a doctor attending upon the. deceased. therefore, to that extent claim of the plaintiff based on mental torture suffered by him on seeing his wife being not properly nursed and that there, was a leakage of cathetar, he can be compensated was just compensation. Accordingly, I hold that a cum of Rs. 10,000 would be a just compensation on this account payable by defendant No. 2.

(31) In this case end of justice will be met if directions are given to the defendant No. 2 to pay a sum of Rs. 10,000 to the plaintiff towards compensation on account of the mental torture suffered by him because of bad nursing as pointed out above. Ordered accordingly. So far as claims against defendant No. 1 are concerned, these fail as plaintiff failed to establish the same against him. Similarly, counter claim of the defendant No. I also fail with no order as to costs. October 30, 1995.

M.L. Singhal vs Pradeep Mathur And Anr.

Delhi High Court - Equivalent citations: AIR 1996 Delhi 261, ILR 1996 Delhi 106 - Bench: U Mehra - date of Judgment: on 30 October, 1995

JUDGMENT Usha Mehra, J.

(1) It is most unfortunate that the life of plaintiff's wife, Smt. Gayatri Devi had been snatched by the cruel hands, but the question for determination is whose hands were those? Were those of a doctor, attending upon her or of the Supernatural power controlling this universe? If the answer is that those hands were of a doctor then we have to keep in mind that to err is human though all errors are not pardonable nor all errors are deliberate and intentional. ft is only when the error arose out of sheer negligence and carelessness or callous treatment of the patient by the doctor or because of the act of the hospital authority, the aggrieved party would be entitled to claim compensation/damage for having lost the near and dear one. It will thus be called causing death at the cruel hands of that human being the so called doctor.

(2) Smt. Gayatri Devi wife .of the plaintiff Sh. M. L. Singhal, died on 21st August, 1978. Plaintiff filed the suit c (3) To appreciate the grievances of the plaintiff the facts are' very relevant. Those are that Smt. Gayatri Devi started having general weakness in the last week of .Tune, 1978. On 1st. July. 1978. plaintiff on the recommendation of a common friend took her for treatment to Dr. Pradeep Mathur at defendant No. 2 hospital. It is further the case of the plaintiff that patient's previous history regarding Hood pressure and kidney involvement and the treatment taken by her at Safdarjung Hospital were explained to Dr. Pradeep Mathur. It was also made clear to Dr. Pradeep Mathur that by observing due precautions and care as prescribed earlier by Dr. Chug of Safdarjung Hospital this ailment had been kept under control. It was only due to general weakness and not passing urine that. he brought her to him. According to plaintiff Dr. Pradeep Mathur after examining his wife admitted her as an indoor patient on 1st July, 1978. She remained under Dr. Pradeep Mathur's treatment till 21st July, 1978. On 21st July, 1978 Dr. Pradeep Matur discharged her. He assured that he would be attending upon her at her residence. Hence after being discharged she still remained under the treatment of Dr. Pradeep Mathur at her residence. He attended upon her at her residence from 21st July, 1978 to 9th August, 1978. On the advise of Dr. Pradeep Mathur, she was again admitted in the hospital on 9th August, 1978 where she remained till 17th August, 1978. On which date doctor discharged her without plaintiff's consent. At the time of her first admission on 1st July, 1978 Dr. Mathur had been informed that Smt. Gayatri Devi was a patient of kidney disease. Even on examination Dr. Mathur assessed her to be a patient of kidney disease. After conducting the test on her it was found that she was not all that serious and her general condition would improve. However. Dr. Mathur inspite of being aware of her kidney ailment neglected in discharging his duties because during the entire period from 1st July, 1978 to 21st July, 1978, he neither consulted nor availed the services of a nephrology nor treated for her kidney ailment. He thus acted in a very negligent and callous manner. He did not care to have the blood, urine and creative tests performed at regular intervals to ensure proper management in carrying: out her treatment for full 38 days. Per plaintiff, Dr. Mathur was guilty of giving her blood transfusion which was not necessary in her case because she was a patient of kidney ailment. In the process of correcting her anemia she was given blood transfusion which beyond a certain level is harmful and undesirable. But Dr. Mathur never cared to look into the same. He gave her over dose of medicines without any valid clinical grounds. Moreover, she was not put on dialysis to preserve or prolong her life nor Dr. Mathur suggested the same. Instead of safeguarding her from infection she was unnecessarily catheterized while she was unconcious. Even the was not proper urine continued to leak as a result she developed bedsores and severe infection. Defendants were negligent in conducting the necessary test nor cared to consult nephrology at the appropriate time. Because of these gross acts of negligence and callousness on the part of Dr. Mathur and hospital authorities the life of Smt. Gayatri Devi has been lost. Had proper care and treatment been administered her life would have been saved for a fairly long time. She suffered agony at the hand of Dr. Mathur because of his rash and negligent manner of providing treatment and of bad nursing by defendant No. 2. Plaintiff being the husband besides suffering loss of company of his wife also underwent agonising moments seeing his wife undergoing physical and mental torture at the hands of defendants. This torture suffered by plaintiff cannot be compensated hence he restricted his claim only to a nominal amount in this suit.

(4) Defendant No. 1, Dr. Mathur, in his written statement beside raising preliminary objections namely; that for want of joinder of necessary party suit is not maintainable: plaint is vague not discloses material particulars; moreover the suit is barred by time, denied plaintiff's claim on merits. He has denied the claim on merits by explaining that he was not the physician consultant in the hospital. He was only one of the Registrars attached to the Cardiology unit of the said hospital which was under the charge of Dr. N. S. Dixit. The other Registrar being Dr. V. K. Tewari. He denied that Smt. Gayatri Devi was brought to the said hospital only to be shown to him or that she was got admitted in the said hospital at his instance. In fact she was admitted in the said hospital as emergency patient in the unit of Senior Cardiologist Dr. N. S. Dixit. Since be was working as Registrar in the said unit under the guidance and supervision of Dr. N. S. Dixit, hence he treated her. Dr. V. K. Aggarwal recorded the case history of the patient. After examining her. Dr. V. K. Aggarwal recorded his observations on the case history. Neither the plaintiff nor Smt. Gayatri Devi at any time disclosed to him or Dr. V. K. Aggarwal that she had suffered kidney ailment earlier nor any document pertaining to her previous treatment in Safdarjung hospital was produced. The fact that she had to had self restricted diet becaues of kidney ailment was also not disclosed. Only ailment mentioned at the time of admission was bypertension. For this she stated she was taking allopathic medicines untill three months before whereafter the started homeopathy treatment. Diagnosis recommendations or prescription of the previous treatment by Dr. Chug of Safdarjung Hospital was neither shown nor produced at any stage. In the absence of any such disclosure by plaintiff or his wife treatment for her was prescribed on the basis of the case history disclosed by plaintiff and his wife and .on the basis of the observations recorded by Dr. V. K. Aggarwal after examining her. He denied that he treated Smt. Gayatri Devi at her residence between 21st July. 1978 to 9th August, 1978. He, however, did visit piaintiff's residence twice to see his wife but that was at the insistence of Mr. B. S. Mathur the common friend. He denied that on 9th August. 1978, Smt Gayatri Devi was readmitted in the hospital on his advise or that on 17th August, 1978. the discharged her without plaintiff's consent. He denied that he continued to treat her up to 21st August. 1978, According to Dr. Mathur. due attention and care was given to the patient after she was admitted in the hospital. Regular tests were conducted. Even though she was admitted as a non-paying patient in the general ward still best of the treatment was given to her. In fact by concealing the factum of her previous history of kidney ailment and the treatment given by Dr. Chag, the plaintiff himself contributed to the death of his wife. The allegations of callousness in treating her have been denied. The specific instance of negligence levelled against him have been specifically denied by Dr. Mathur. Dr. Mathur besides denying the allegations in the plaint, has filed counter claim against the plaintiff. That is for loss of his reputation. on account of libillous, slanderous and defamatory statements made by the plaintiff in the plaint by writing to other authorities.

(5) Defendant No. 2, i.e. Sir Ganga Ram Hospital in its written statement has denied the charge of poor nursing and negligence in carrying out tests. It has been reiterated that the plaintiff's wife was admitted in hospital under the charge of and in the unit of Dr. N. S. Dixit. It has been denied that Smt. Gayatri Devi was admitted by Dr. Pradeep Mathur. Dr. Pradeep Mathur and Dr. V. K. Tewari were working as Registrars and Dr. V. K. Aggarwal as House Surgeon in the Icc Unit under the charge of Dr. N. S. Dixit. They used to work under the supervision and guidance of Dr. N. S. Dixit. It has been reiterated that Dr. V. K. Aggarwal recorded the case history of the patient at the time of her first admission. Based on the information furnished by the patient and her husband as well as on the basis of preliminary examination conducted by Dr. V. K. Aggarwal, the case history was recorded. Smt. Gayatri Devi was 66 years of age when she was admitted in the hospital on 1st July, 1978. She remained under the overall care of Dr. N. S. Dixit. It has been denied that she was admitted or discharged. from the hospital on the instruction and advise of Dr. Pradeep Mathur. The patient did not produce any medical record, previous prescriptions or information nor disclosed her previous history of kidney involvement ailment. Plaintiff and his wife withheld the material particulars of her previous ailment from the doctors as well as from hospital authorities. The allegations of rash and callous attitude of the defendants in treating or giving medical treatment have been denied. In fact by concealing the material facts and information of her previous kidney ailment, the plaintiff contributed to the death of his wife.

(6) In the replications to the written statements filed by defendants and in his written, statement to the counter claim filed by defendant No. 1 the plaintiff has denied the averments made therein. On the pleadings of the parties following issues were framed:- 1. Whether the suit is bad for non-Joinder of necessary parties? 2. Whether the plaint dues not disclose any cause of action against the defendant ? OPP-1. 3. Whether the suit as framed is not maintainable? OPD-1. 4. Whether plaint is liable to be rejected on the ground that it does not disclose material particulars OPD-1, 5. Whether Smt. Gayatri Devi, plaintiff's wife remained under the treatment of defendant No. 1 during the period 1-7-1978 to 21-8-1978? OPD. 6. Wether the defendant No. 1 acted in a callous and negligent manner in the discharge of his duty as a doctor while treating plaintiff's wife and as a result thereof plaintiff's wife died prematurely on 21-8-1978? OPD. 7. Whether the plaintiff is entitled to recover a sum of Rs. 1,25,000 from defendant No. 1 as damages? Opd 8. Whether the defendant No. 2 is also liable for the amount of damages because defendant No. 1 was in the employment of defendant No. 2? OPD. 9. Whether the plaintiff defamed defendant No. I and caused him mental agony? OPD-1. 10. If issue No. 9 is decided in favor of defendant No. 1, then to what amount of damages, if any, is the plaintiff liable to pay to defendant No. I? OPD-1. 11. Whether the counter claim is barred by time? OPD. 11-A. Whether the suit is barred by limitation. 12. Relief and against whom.

I have heard Mr. Narottam Vyas for the plaintiff, Mr. Jagdeep Kishore for defendant No. I and Mr. H. L. Raina for defendant No. 2. Issue No. 1 (7) For the determination of this issue, we have to keep in mind that the suit would not lie in the absence of a necessary and proper party, in whose absence the dispute in the suit cannot be properly adjudicated and determined. To find out whether plaintiff has failed to implead such a party in the absence of whom suit cannot be effectively and properly adjudicated, we have to scrutinise the claim as set up and the relief sought. Also to find out whether in the absence of team of doctors working in Icc Unit of defendant No. 2. the claims cannot be determined? According to defendants. Dr. Dixit was the head of the .Department. of Icc Unit of defendant No. 2. Dr. V. K. Aggarwal was Senior Kesident. and Dr. V. K. Tiwari Along with dependant No. 1 were working as Registrars. All these doctors at one or the other time attended the patient. Mr. Jagdeep Kishore contended that all these doctors ought to have been imploded failing which responsibility cannot be fasten defendant No. 1. Defendant No. 1 was one of the doctors working as Registrar under the supervision and guidance of Dr. N. S. Dixit who attended the patient. Dr. Dixit was the consultant and in charge of the Icc Unit. The question for determination is whether in the absence of in charge of the unit and co-doctors, relief as sought cannot be granted. To my mini, the answer will be in the negative. If in a given hospital a team of doctors are working manning a particular unit that by itself will not give cause to an aggrieved party to sue all the doctors. Plaintiff's case through out had been that he went to Sir Ganga Ram Hospital to consult defendant No. I in his personal capacity and on the recommendation of Mr. B. S. Mathur a common friend, it was the defendant No. 1 to whom he narrated the illness of his wife. It was at defendant No. 1's instance that he got his wife. admitted in the said hospital. After admission all formalities started. Plaintiff's grievance is only against defendant No. 1. It was he who had been attending upon the patient and monitoring the medical treatment and management. It has never been plaintiff's case that other team of doctors were also attending upon his wife regularly and at her residence also. In the absence of any allegations of neglect or callous manner attributed to other doctors of the team, plaintiff, to my mind. cannot be compelled to implead other team of doctors. Plaintiff has based his relief on the specific assertion made by him i.e. he had gone to defendant No. 2 hospital only to consult defendant. No. 1. He further stated if defendant No. I had not been working in defendant No. 2, he would not have taken his wife to the said hospital. She was. admitted in the hospital on 1st July, 1978 at the instance of defendant No..1. Initial treatment was also given to her by defending No. 1. Plaintiff was permitted to stay in the hospital Along with his wife in order to lookafter her by defendant No. 1. Therefore, , has personal knowledge regarding treatment prescribed and . medicines administered to his wife by defendant No. 1 and the nursing done by the staff of defendant No. 2 .hospital.. Defendant No. I not only attended his wife in the hospital but also .attended her medical needs by visiting at her residence .after she was discharged from the hospital. According to plaintiff it was defendant No. 1 who told him at the time of her discharge that in case of emergency he would visit her at her residence. During her stay in the hospital in case of any emergency he becalled. Dr. N. S. Dixit was only Consultant heading the Unit. The treatment was in fact suggested and given by defendant No. 1. Case of the plaintiff does not end here, according to him, the defendant No. 1 after discharging his wife from the hospital, visited her at her residence in order to monitor her treatment. He prescribed various medicines at different times. This part of Iris testimony remained unrebutted. Rathen when subjected to cross examination Dr. Mathur admitted he visited the house of the deceased on two occasions between 21st July, 1978 to 9th August, 1978 in older to check the condition of plaintiff's wife though he tried to explain it away by saying that he did so at the instance of their common friend i.e. Mr). B. S. Mathur. From this admission it is clear that Dr. Pradeep Mathur visited the patient at her house on two occasions between 21st July, 1978 to 8th August, 1978. The fact that Dr. Mathur -was attending Smt. Gayatri Devi is proved from this conduct of the defendant No. 1. The explanation given by defendant No. 1 that his visits were friendly and at the asking of his friend docs not alter the fact nor create any dent in the case as set up by the plaintiff nor would absolve the defendant No. 1 from his responsibility as doctor. From the facts which have come on record, it is clear that it was defendant No. 1 who had been treating the wife of the plaintiff. He not only looked after Smt. Gayatri Devi in the hospital as an indoor patient but also attended upon at her residence. Plaintiff's statement that first time his wife was discharged at the instance of Dr. Mathur has not been controverted nor rebutted. Moreover, plaintiff's categorical stand that he approached Dr. Mathur in his personal capacity and not as an employee of defendant No. 2 has not been dislodged. Even the defendant No. 1, appearing as his own witness admitted that he got admitted Mrs. Gayatri Devi. It was Dr. Mathur who got her admitted in Icc Unit under the chars of Dr. N. D. Dixit. Nothing turns on .the same because simply she was admitted under the unit of Dr. N. S. Dixit would not mean that she was the patient of Dr. Dixit. Since Dr. Dixit was in charge of the unit hence she was shown to have been admitted in that unit of Dr. Dixit. Dr. Mathur grudgingly admitted that he was told about patient's illness by her husband at the time plaintiff brought her to hospital. Based on that information Dr. Mathur started the initial treatment. However, the history of her ailment was pin down by Dr. V. K. Aggarwal. From the testimony of .the plaintiff it is clear that Smt. Gayatri Devi remained under the treatment of Dr. Mathur. In fact Dr. Dixit being consultant Head might have 'been consulted by defendant No. 1 to .find out whether the treatment prescribed by him was proper or not. But that by itself does not lead to the conclusion that in .the absence of Dr. N. S. Dixit, Dr. V. K. Tewari or for that matter Dr. V. K. Aggarwal the question of negligence attributed to Dr. Matter cannot be decided effectively and properly. Impleading of doctors of the Icc Unit was neither necessary nor proper not it can be said that in their absence the suit cannot be adjudicated properly. Accordingly this issue is decided against the defendants Issued No. 2, 3 & 4 (8) These three issues are common and touch the same legal aspect of the case, hence are taken up together and disposed by one older. Cause of action has not to be seen in isolations- It is based on bundle of facts. Perusal of the plaint shows that platitiff's case is based on specific allegations of negligence of Dr. Mathur and bad nursing by the Hospital staff leading to a hasty death of his wife. It is plaintiff's case that doctor was negligent which he described in the following words "highly rash, negligent and callous manner of treatment given to deceased Gayatri Devi, as a result of which she died". This averment itself discloses th cause for his action. The contention of the defendants that these words have been lifted by the plaintiff from other judgments without knowing the significance or meaning of the same The use of these words by itself would not establish negligence. To my mind, this argument has no merits. Plaintiff was not to plead evidence in the plaint. Suffice it was for him to mention the grounds on which he based. his. claim. It was not necessary for the plaintiff to incorporate evidence in the pleadings. Pleadings should be such from the reading of which the case as set up becomes dear to the other side so. that the defendant could take his appropriate defense. Pleadings should not be indefinite or vague. Allegations of negligence and callous manner of treatment and nursing performed by defendants to Smt. Gayatri Devi which according to plaintiff caused her death, are the foundation of his claim. This discloses cause of action. Hence the suit on this ground cannot fail.

(9) So far as issue No. 4 is concerned, reading of the plaint indicates that the plaintiff has claimed Rs. 1,25,000 towards damages on four counts, namely, (i) on account of the premature death of his wife at the age of sixty six years; (ii) the agony suffered by. her during the time she remained indoor patient; (iii) the agony suffered by the plaintiff while seeing her treatment at the. hands of the defendants and (iv) for the loss of company of his wife Admittedly, no breakup of this claim has been given But Mr. Vyas rightly contended that there is no standard to measure the damages for such a loss against each head- Hence the plaintiff claimed jump sum amount by way of damages suffered by him under four heads. Non furnishing of the specific amounts against each head in the plaint by itself is no. ground to throw away the suit. Hence, issues 2 to 4 are decided against the defendants, (10) Vide issue No. 1. it has been held that Smt. Gayatri. Devi. wife of the plaintiff, was under the treatment of defendant No. 1. It has also come on record by the testimony of Dr. N. S. Dixit that the treatment prescribed by Dr. Mathur was a proper treatment. Admittedly, Dri. Mathur was working as Registrar in Icc Unit under the supervision and guidance of Dr. Dixit. Initial treatment was prescribed and administered by Dr. Mathur which was subsequently confirmed by Dr. Dixit a Senior Consultant of defendant No. 2. From the evidence which has come on record, it can safely be concluded that the patient was prescribed the initial treatment by Dr. Mathur which was subsequently confirmed by the Head and in charge of the Unit. The issue is decided accordingly. Issue No. 6 & 8 (11) These Issues are inter-related and inter-connected hence taken up together. The burden of these issues was on the plaintiff, which the plaintiff has failed to discharge. He has not been able to established by convincing evidence or from medical record that there was negligence and callousness on the part of Dr. Mathur defendant No. 1 For arriving at this conclusion reference can be had to the testimonies of Dr. N. S. Dixit, Dr.D. S. Rana and of defendant No. 1 himself. Dp. Dixit appearing as D2W2 testified that the condition as revealed at the time of admission needed immediate treatment in order to enable her to pass urine. The case history Ex. P/Y was recorded by Dr. V. K. Aggarwal, a House Physician at the time of her admission. This shows the problem suffered by the patient namely slight loss of appetite, inability to pass urine since morning of 1st July. 1978, known hyper tensive for the last four years and progressive weakness for the last six months. Plaintiff had informed that the patient was having treatment three months prior to her admission in respondent No. 2. hospital. That treatment she stopped and thereafter started homeopathic treatment. Ex. P/Y also shows that Cholecystectomy was done 12 years back. There was no history of diabetic or chronic cough or vomiting. On examination anemia was found positive. Dr. Mathur after perusing the report advised the treatment namely administration of 5% glucose lasix. He advised blood tests and other tests on 1st July. 1978 itself. Test report is Ex.. P-l which is dated 3rd July 1978.. The teatment sheet is Exhibit P-2. Urine test done on 2nd July. 1978 shows normal results. Urine reports regarding albumin were found to be normal. Ex. D1W3/1 D1W3/16 are the intake and output charts or urine of Smt. Gayatri Devi taken in between 1st. July. 1978 to 21st July. 1978. From these charts it is apparent that the doctor, was monitoring and keeping track in order to ensure about the in juctioning of the kidney. Ex. DIW3/l7 to D1W/19 are charts with respect to patient's temperature, pulse and blood pressure taken at different hours between 1st July, 1978 to 21st July, 1978. These charts show that the blood pressure of Smt. Gayatri Devi was under control There was no sudden fluctuations of the temperature, The blood urea and cretonne were found within limits vide Ex. P-1 as such the involvement of kidney was ruled out. Moreover, the patient had passed urine after administering fluids. On 4th July, 1978 further blood tests were recommended namely for hemoglobin (Hb.) TLC. Dlc and Esr, which show very low percentage of Hb. and anaemic condition vide Ex. Public Witness 2/D1. The Tlc, Dlc reports were normal. This also in a way did not indicate any manifestation of kidney involvement. Various other tests carried out revealed Cyanosis negative, jaundice negative, clubbing negative, lymphadenopathy negative, edema negative and J.V.P. normal. In view of these tests, the liver disease and heart diseases were also ruled out.

(12) On further investigation it was found that the patient was loosing some blood through stool which was detected when stool test was carried out on 8th July, 1978. Gynecological check up was also done. Further blood tests were recommended for Hb" Tlc, DLC. Esr and reticulosive count to find out type of anemia in order to enable the doctor to determine whether the blood loss was due to iron deficiency or due to kidney failure or for any other reason. As per report Ex. Ex.2/D2 and Ex. Public Witness 2/D2A, the Hb. came down to 5.0gm%. It. therefore, became iMperative to give blood transfusion. If the blood loss had not been supplemented through transfusion the patient would have died. Doctor investigated the cause of anemia and treated accordingly. Blood transfusion was administered over a period of 10 days between 10th July. 1978 to 19th July, 1978 as a result of which the Hb. count increased to 8.5 gm% as per Ex. P-4 and Ex. P-5. Ex. P-3 shows the increase in Hb. counts from 5gm. to 7gm.% on 12th July. 1978. To find out the reason for loosing blood through stool patient was riven barium anima followed by an X-Ray to see whether there could be any intestinal bleeding or not, (13) Plaintiff in his testimony has reiterated the negligent and callous attitude of defendant No. 1 while discharging his duties as doctor on the following amongst other "rounds :__ (I)Dr. Pradeep Mathur did not care for. proper management of the patient. Regular tests were not carried out: (ii) Blood transfusion was given inspite of there being no necessity of the same. knowing fully well that the patient was suffering from kidney disease. Indiscriminate blood transfusion resulted in the development of drowsiness, restlessness, vomiting and swelling etc' (iii) Patient was. given overdose of medicines without any valid clinical ground; (iv) Patient was not put on dialysis to preserve or prolong her life, nor such an advise was given to the plaintiff; (v) Patient was unnecessarily catheterized while she was unconscious; (vi) nephrology was not consulted at the appropriate lime.

(14) He further stated that reno gram test was conducted at Safdarjang Hospital but admittedly he never produced or showed the same to defendant No. 1. It is his own case that after the treatment of the patient in Safdrajang Hospital in 1976 he did not get her treated in any other hospital except for getting her blood pressure checked from Cghs Dispensary occasionally. The hospital record produced by defendant No. 2 show that on 2nd July, 1978 and 9th July, 1978 salt level tests were also carried out. Smt. Gayatri Devi was found to be very low in salt level. Salt deficient diet could have made the patient unconscious and ultimately caused death. Dr. D. S. Rana, Specialist nephrology appearing as witness for defendant No. 1 confirmed with approval the treatment given by Dr. Ramesh Khanna, nephrology, who attended upon Smt. Gayatri Devi on 12th August, 1978. Dr. D. S. Rana after going through the photocopies of the hospital record stated that if a patient had been passing urine then there was no harm in giving whole blood especially under the cover of diuratics. Main indication for avoiding whole blood transfusion and giving packed cell in cases of anemia is presence of gross congestive cardiac failure- Perusal of the record of Mrs. Gayatri Devi during her stay in the hospital from 1st July, 1978 to 21st July, 1978 reveals that she never suffered from cardiac failure. On her readmission second time on 9th August. 1978 the treatment given by Dr. Khanna has been re-confirmed by Dr. D. S. Rana. The record shows that the treatment given by the defendant No. I and by Dr. Khaana was proper which was required to be administered to the patient in order to bring her out of the problem she was facing. Dr. Dixit also appearing as witness for defendant No. 1 testified that proper treatment was administered to her. There was no involvement of kidney when she was admitted on 1st July. 1978 which fact has been corroborated on the basis of various test reports and charts.

(15) The initial treatment though prescribed by defendant No. 1 but was approved by Dr. Dixit when visited the Icc Unit the next morning. He found the line of treatment prescribed by Dr. Pradeep MAthur in order. The blood test report Ex. P-1 dated 3rd July, 1978, shows the promptness with which the medical treatment, was given to the patient. She was admitted in the hospital on 1st July, 1978 at 4.30 p.m. Blood sample was taken, as per defendants, on the morning of 2nd July, 1978 and on 3rd July, 1978 report vide Ex. P-1 was received. At that point of time the blood urea was found to be 4 mg% and retaining 1.3 mg%. On the same day urine test was recommended for routine and microscopic examination. Report of the same is Ex. P-2. Since the patient passed urine after intravenous fluids it became obvious that the reason for not passing urine was pre-renal. Dr. Dixit testified that neither the patient nor his relation disclosed past ailment of renal failure- Had it been so, Dr. Aggarwal would have recorded the same in the case history. According to Dr. Dixit when the patient was admitted at the first instance on 1st July, 1978, there was no indication of kidney involvement. It was only on 9th August, 1978 when. she was re-admitted that sign of kidney involvement manifested. There was infact no overdose of medicines. The accusation of the plaintiff in this regard are vague. On the contrary it has come on record that after the initial tests and the treatment given to the patient there was improvement. It was only when she was re-admitted on 9th August, 1978 that the tests of cretonne and blood urea revealed renal involvement. for which nephrology was immediately consulted.