Report No. 54
1-O.1. Part 11 of the Code, sections 132 to 158, contains various miscellaneous provisions. Though entitled "Miscellaneous", some of these provisions are of practical interest, the most important being, of course, section 151, which deals with the inherent power of the Court.
1-O.2. Section 132(1) provides that women who, "according to the customs and manners of the country ought not to be compelled to appear in public shall be exempt from personal appearance in court". Sub-section (2) of the section saves provisions for arrest.
1-O.3. We are of the view that section 132 is an anachronism. The law should not, in such cases, encourage exemption from personal appearance in court. Even where the women do not appear in public according to the "customs and manner of the country" there should, in our opinion, be no exemption from attendance in court. No serious hardship is likely to be caused by the removal of the present exemption, as social conditions have considerably changed, and this practice is getting obsolete.
1-O.3A. Today,1 the seclusion of women is completely inconsistent with the social philosophy on which our Constitution is founded. Section 132 is not to be treated as a concession to some aristocratic families, but is a recognition of a universally observed custom. Hence, customs and manners of the country prevailing at the present time should be the criteria, and not the customs and manners which might have prevailed years ago.2
1. Cf. Basai v. Hasan Raza Khan, AIR 1963 All 340.
2. Cf. Kunlin Mohammad v. Umma Haji Umma, 1969 Ker LT 418 (421-423).
1-O.3B. Moreover, the paramount task of deciding cases1 on the oral evidence of an important party involves the personalised process of the Judge seeing the witness at first hand, "instead of pouring over the prolix pages of a Commissioner's record". The judge must have the advantage of observing the demeanour, or at least the manner of delivery, of the witness, if he is to assess her credibility justly.
1. Kunlin Mohammad v. Umma Haji Umma, 1969 Ker LT 418 (421).
Recommendation to delete section 132
1-O.4. For the reasons stated above, we recommend that section 132 should be deleted.
1-O.5. Under section 133, certain high dignitaries of State and persons holding exalted judicial offices are exempted from personal attendance in court. During our consideration of the Code, a point was raised whether such special privileges are consistent with equality before the law, and whether the list of persons so exempted should be curtailed. We have, therefore, considered this point at length.
Analysis of exemption
1-O.5A. Under the section, the persons enumerated in the section are entitled to exemption from personal appearance in court. The list of such persons, as given in the section is long consisting of 11 items, but, in order to facilitate discussion, the persons enumerated could be grouped into four groups, as follows:-
(i) The President and Governors; (The exemption here is obviously because of their position as the head of the State);
(ii) The Vice-President, the speaker of the House of People, the Speakers of State Legislative Assemblies and the Chairman of State Legislative Councils; (The exemption in this case is based on office held as the presiding officer of the Legislature);
(iii) Judges of the Supreme Court and High Courts;
1. Section 138(1)(xi), relating to Rulers of former Indian States, may be disregarded for the present purpose.
1-O.5B. The exemptions provided for in section 133 could be justified on one or other of the following principles, namely:-
(i) That enforcing the personal appearance of the persons exempt would be derogatory to their status; or
(ii) that forcing their personal appearance would hinder the efficient performance of important public business, whether legislative, executive or judicial.
In all the cases mentioned in section 133, one or other of these principles would apply. For example, Ministers have important duties to perform, and their being summoned in Court might interfere with the discharge of their important functions. In some cases, both the principles mentioned above may apply. For example, summoning the President of India in court, may be derogatory to his position as the head of the State, and may also cause hindrance to public business. Again, it may be derogatory to the position of a High Court Judge to be required to appear personally in a subordinate court over whose judgments he might have occasion to hear appeals. It could also interfere with his judicial business.
Rules of law as contrasted with public policy
1-O.5C. We are aware that in a democratic country, such exemptions should be confined to the minimum. The rule of law postulates that no individual enjoys, by virtue of his position or office, any special privilege in contrast with an ordinary citizen. But compelling considerations of public policy may justify qualifications to this abstract rule and it is on this assumption that the secti6n provides a departure from the abstract rule.
Position in England
1-O.5D. We may briefly deal with the position in England. In England, the sovereign in her private capacity is not subject to the jurisdiction of the courts. This position continues even after the passing of the legislation abolishing several of the immunities of the Crown1 from litigation. It has been held that a writ of execution cannot be executed within the precincts of any palace, which is used as a residence of the sovereign, without her permission. This was held not to apply to the Hampton Court Palace, on the ground that it was not a residence of the Sovereign.2
English law does not seem to provide for a general exemption from personal appearance in Courts as regards Ministers or Judges, or even as regards presiding officers of the Houses of Parliament. It should, of course, be added that there is immunity from liability in the case of judges, by reason of special rules of law. Any Parliamentary privilege may restrict the operation of the general power of the court to enforce the attendance of witnesses. But there is no general exemption from personal appearance as is conferred by section 133.
1. The Crown Proceeding Act, 1947.
2. A.G. v. Dakin, (1870) 18 WR 111 (CA), cited in Annual Practice, under Order 43, rule 3.
No change in law recommended
1-O.6. We have given thought to the matter since, at first sight, the privilege may not seem to accord with the spirit of the Constitution. We are reluctant to recommend any change in the law; but, at the same time, we do express the hope that those who have occasion to claim this privilege will, before asserting it, consider whether it is absolutely necessary to do so in the particular case. In this connection, we must refer to the salutary example, which was set recently by the President, who, when it became necessary for the Supreme Court to examine him as a witness, insisted on attending that court in person.
Section 133(1), item (xi)
1-O.7. In section 133(1), item (xi) relates to persons to whom section 87B applies. We may note that section 87B has been now confined to pre-Constitution causes of action.1
1. See discussion as to section 87B.
1-O.8. Section 135A, broadly speaking, confers exemption from arrest on Members of Parliament and of State Legislatures, for the period of the legislative session and for a further period of 14 days before and after each session.
1-O.9. In the earlier Report1 the following recommendation was made with reference to this section:-
"It is considered desirable to increase the period from 14 to 40 days, in conformity with the position obtaining in England in relation to Members of the House of Commons, see Article 105 of the Constitution also. It is also considered, that this amendment should apply to Members of State Legislatures also. The view that the subject-matter (so far as concerns such Members) falls within the competence of State Legislatures, under Article 194(3) of the Constitution, has not been accepted. It is felt, that the matter falls within entry 13, Concurrent List,-'Civil Procedure including all matters dealt with in the Code of Civil Procedure at the commencement of the Constitution'."
1. 27th Report, note on section 135A.
1-O.10. We have, after some consideration, come to the same view, and recommend that section 135A should be amended as recommended in the earlier Report. We agree with the previous Commission in its view that the matter falls within the entry relating to civil procedure.1
1. Concurrent List, Entry 13.