power thoughts

calculating compensation in motor accident claims

2010-11-01T17:37:00.000+05:30

MANU/SC/0389/1994

Equivalent Citation: 1994ACJ1, AIR1994SC1631, 1994(1)ALT1(SC), (1994)96BOMLR788, 1994(3)KarLJ39, 1994(1)KLT67(SC), 1994(0)MPLJ520, (1994)107PLR1, 1993(4)SCALE643, (1994)2SCC176

IN THE SUPREME COURT OF INDIA

Civil Appeal No. of 1993 (Arising out of S.L.P. (C) No. 9583 of 1992)

Decided On: 06.01.1993

Appellants:General Manager, Kerala State Road Transport Corporation, Trivandrum
Vs.
Respondent:Mrs. Susamma Thomas and others

Hon'ble Judges:

Heart of the matter- favourite lines

2009-07-12T18:55:00.002+05:30

finished reading heart of the matter by Graham Greene yesterday. To read about the plot and all, click here . So you might wonder what this post is for. Well, here are some of my favourite lines from the book.

"It seemed to Scobie life was immeasurably long. Couldn't the test of man have been carried out in fewer years? Couldn't we have committed our first major sin at seven, have ruined ourselves for love or hate at ten, have clutched at redemption on a fifteen year old death bed?" -p.52

"Despair is the price one pays for setting oneself an impossible action. It is, one is told, the unforgivable sin, but it is a sin the corrupt or evil man never practises. He always has hope. He never reaches the freezing point of reaching absolute failure. Only the man of goodwill carries always in his heart this capacity for damnation." p.60

"What an absurd thing it was to expect happiness in a world full of misery. He had cut down his needs to a minimum, photographs were put away in drawers, the dead were put out of mind:a razr-strop, a pair of rusty hancuffs for decoration. But one still has one's eyes, he thought, one's ears. Point me out the happy man and I will point you out either extreme egotism, evil-or else an absolute ignorance.
Outside the rest-house he stopped again. The lights inside would have given an extraordinary impression of peace if one had'nt known, just as the stars on this clear night also gave an impression of remoteness, security, freedom. If one knew, he wondered, the facts, would one have to feel pity even for the planets? if one reached what they called the heart of the matter?" p.123-24

2007-11-30T17:57:00.000+05:30

JURISPRUDENCE

Can Normative Goals of trademark laws resolve the Google AdWords impasse?

Lalu John Philip

Introduction

Advancements in internet technology has brought into fore new forms of trademark infringements. Sometimes, in case of new practices in the internet like pop-up advertisements, meta-tagging, keyword advertising, etc. courts find it difficult to conclude whether such practices constitute trademark infringements.

In this project, the researcher looks at one new practice-Google’s ‘Adwords’ keyword advertising programme- and enquires whether the inconclusiveness of the courts with regard to this programme, can be resolved by looking at the normative goals of trademark laws.

Towards this end, the researcher has formulated the following research questions.

Research Questions

1) What are the functions of trademark laws? What are the reasons for trademark protection?

2) What has been the judicial approach towards deciding the question of whether the new practices in the cyberspace, particularly the keyword based advertising’, is trademark infringement or not?

3) Can the question of whether ‘keyword based advertising practise’ on the net is trademark infringement or not be satisfactorily answered by looking at the foundations of trademark laws?

Functions of Trademarks

Trademark is a designation used to identify and distinguish the goods of a person^{^[1]}. Trademarks emerged originally to indicate the origin of goods[2]. Through this, trademarks also perform a number of equally important functions[3]. McCarthy identifies four functions that trademark performs that are deserving of protection in the courts-to identify one seller’s goods and distinguish them from goods sold by others; to signify that all goods bearing the trademark come from a single, albeit anonymous, source; to signify that all goods bearing the trademark are of an equal level of quality and finally, it functions as a prime instrument in advertising and selling the goods[4].

Reasons for trademark protections

Private law has a normative character and sets its own definite requirements of fairness and reasonableness[5]. In the realm of business and trade, law enforces high standards of fairness or commercial morality through the unfair competition law[6]. This legal standard of fairness is higher now than in the past.[7] Trademark infringement is but a branch of unfair competition. In giving protection to trademarks, law and society are superimposing ethical and moral norms on the competitive process.[8] Fifth Circuit emphasised the connection between commercial morality and law of unfair competition by stating that ‘we are not reluctant to conclude that what is morally reprehensible is also legally impermissible.’[9] Thus commercial morality is a touchstone for unfair competition law[10]. In short, law prevents trademark infringement because it is ‘unfair’ and is against ‘commercial morality’.

There is also an economic rationale for giving trademark protection.[11]McCarthy points out that trademark perform at least two important market functions: (1) it has a quality encouragement function-trademarks create an incentive to keep up a good reputation for a predictable quality of goods. Thus an important purpose underlying trademark law is the protection of trademark owner’s investment in the quality of the mark and the quality of goods the mark identifies; and (2) it reduces customer’s search costs.[12]

Another important reason for protection is the consumer protection policy of trademark law. ‘Today, the keystone of that portion of unfair competition law which relates to trademarks is the avoidance of a likelihood of confusion in the minds of the buying public’.[13]

But it must be remembered that though many modern scholars equate trademark law with consumer protection, trademark law was not traditionally intended to protect consumers. Instead, trademark law, like all unfair competition law, sought to protect producers from illegitimate diversions of their trade by competitors.[14]

Now that the normative foundations of trademark laws have been explained, the paper seeks to explore how the internet revolution has given rise to new forms of trademark ‘uses’ which the court find it difficult to conclude whether such use of trademark names constitutes trademark infringements.

New Challenges to Trade mark protection: Google’s AdWords Programme

In the information age, the trademark infringements have become very sophisticated, so much so that courts find it difficult to determine whether there is infringement at all in the first place. The infringement in cyber space have taken many forms-prior 2000, it was cybersquatting, then came infringement through metatags[15] and now the most controversial ‘infringement’[16] is through ‘keyword triggered advertising programme’. The important keyword advertisement programme in the internet now is ‘AdWords’ by Google[17]. It is also the most important stream of revenue for Google.[18] Essentially, the AdWords program allows advertisers to bid for words or phrases (keywords)-including competitor’s trademarks- related to their businesses that will bring up their websites under "sponsored links" when those keywords are typed into Google's search engine[19]. These sponsored links appear alongside or on top of the organically generated search results. Another related tool is Google’s ‘keyword tool’[20]through which Google itself suggests the advertisers based on the search trend in Google which keyword to bid for[21].

Though many trademark holders see it as infringing their trademarks, courts haven’t conclusively decided whether such practice amount to trademark infringements. Though Google have been sued a number of times, different and often opposite conclusions have been reached by the courts. The approach of the court has been varied and courts have attempted to settle this issue by analogising with offline advertising practices.

Now the paper proceeds to look at how the U.S courts have approached the issue of keyword advertising.

Approach of the Courts

In Geico v. Google[22], court rejected Google's motion to dismiss the petition for failure to state claim stating that petition has successfully alleged trademark use[23].The court held that Internet search engine operators' practice of selling advertising linked to search terms, with links to websites of paid advertisers appearing in users' search results as “sponsored links,” constituted commercial use of trademarked search terms, for purpose of determining whether such conduct was infringing trademarks under Lanham Act. But the court didn’t go into the question of whether there was a trademark infringement as it was a motion to dismiss petition for failure to state claim.

But the New York district court took a completely different view in the recently decided case of Rescuecom v.Google[24]. In this case, the court held that Internet search engine operator's internal use of computer services franchising company's trademark to trigger sponsored links was not a use of a trademark within the meaning of the Lanham Act, absent allegation that search engine operator placed company's trademark on any goods, containers, displays, or advertisements, or that its internal use was visible to the public. Court went on to say that even if Internet search engine operator was capitalizing on the good will of computer services franchising company's trademark by marketing it to competitors as a keyword to generate operator's own advertising revenues, competitors believed operator was authorized to sell company's trademark, or that Internet users viewing competitors' sponsored links were confused as to whether sponsored links belonged to or emanated from company, none of these facts, alone or together, established trademark use; although facts could suffice to satisfy the “in commerce” and likelihood of confusion requirements at the pleading stage, without an allegation of trademark use in the first instance, they could not sustain a cause of action for trademark infringement.

In other jurisdictions also different courts have come to different conclusion. For example, while in France the Court decided against google (Google France v. Viaticum, 2005), in Germany (Nemetschek v. Google) and in Austria (Longevity Health v. Google), the Court held that there was no trademark infringement.[25]

Thus the courts are indecisive as to whether keyword advertising infringes trademark rights or not. Now the researcher attempts to see whether resorting to the normative foundations of trademark laws discussed in the beginning of the paper can provide a satisfactory explanation to this issue.

Looking at normative foundations to resolve the issue

In all these cases, the courts instead of looking at the normative goals of trademark laws, tried to resolve the issue by trying to analogise it with offline infringement[26]. But such an approach is defective not only on the point that such analogies are incomplete and therefore incorrect, but more importantly the issues involved in the cyber space are different and therefore a solution to the issues in cyberspace cannot be resolved by analogising with offline world[27].

In order to consider whether Google’s advertisement programme of selling trademark names as keywords should be allowed to continue or not, we have to necessarily begin by looking at whether Google’s keyword advertisement programme is fair or conforms to commercial morality, since as pointed out earlier in the paper, law prevents trademark infringements because it is unfair and is against commercial morality. Google is a virtual monopoly in its field. Though there are other search engines in the web space, none of them can match Google in the volume of indexed pages or in the user base. The Google search has become a primary online activity[28] and control the access to information in the net.[29]Because of this special status enjoyed by Google, it should be bound by a higher degree of morality and fair business practice. Unfortunately, through its Adwords programme, Google is exploiting the monopoly it enjoys. A company builds up its goodwill and brand name after years of investment by way of providing quality goods/services and by investing in advertisements. But Google, by selling the trademark name of company as keyword to its competitors, is actively contributing to divert its customers to the competitors. This is unfair on the trademark holder who has spent millions of dollars in building up the trademark name. Also when a web user searches in Google with the sole purpose of reaching to the trademark holder company’s site, Google affects his last minute decision making process by recommending him the competitor’s websites.

From an economic point of view also, the Google’s advertising program cannot be justified. The keyword advertising thwarts quality encouragement function of trademarks because now to reach to customers, competitors will not invest on building brands by improving quality of goods, but will only be spending money to bid for competitor’s brand name as ‘keyword’. Economic Analysis also maintains that if all take a free ride on the successful seller’s mark and reputation, there is no incentive to distinguish one’s own goods and services[30]. Google’s keyword advertising program is allowing exactly this kind of free-riding to happen.

There are those who suggest that Google’s practice is not a ‘trademark use’ because consumers are not confused and also that trademark use should be narrowly constructed so as to exclude contexts like keyword advertising as they promote consumer choice[31]. But what is ignored in these statements is that trademark laws were not intended to protect customers. It was originally sought to protect the producers from illegitimate diversions of their trade by competitors. The Google thus infringes the trademarks by allowing diversions to its advertisers when a user uses Google to get to the website of the trademark holder[32].

Conclusion

This article has shown that normative foundations of trademark laws can successfully solve the perplexity judges find themselves in while deciding whether the keyword advertising programme as practiced by Google constitutes trademark infringement or not.

Google might be able to come out of the law suits against them successfully by showing that the requirements for infringement under Lanham Act haven’t been satisified, But if it is to be asked whether the Keyword advertising which use trademark names ought to be banned, all the normative foundations of trademark law points to one direction-that it is an unfair business practice.
Bibliography

Articles:

Mark P. McKenna, “The Normative Foundations of Trademark Law”, 82 Notre Dame Law Review 1839 (2007).

2. Paul Bonewitz, “Beyond Confusion: Reexamining Trademark Law's Goals in the World of Online Advertising”, 81(01) St. John's L. Rev. 899 (2007)

Stephanie Yu Lim, “Can Google Be Liable For Trademark Infringement? A Look At The "Trademark Use" Requirement As Applied To Google Adwords”, 14(01) UCLA Ent. L. Rev. 265 (2007).
Urs Gasser, “Regulating Search Engines: Taking Stock And Looking Ahead”, 8(01) Yale J. L. & Tech. 201 (2006).
Peter Benson, “Philosophy of Property Law”, in The Oxford Handbook of Jurisprudence, (Jules Coleman and Scott Shapiro eds, Oxford: Oxford University Press, 2002)

Books

Matthias W. Stecher, “Webvertising, Unfair Competition and Trademarks on the internet”, AIJA Law Library, 1999
J. Thomas McCarthy, “McCarthy on trademarks and unfair competition”. 4th ed. [St. Paul, MN] : West Group, c1996
Morcom, Roughton et al, “The Modern Law of Trademarks”, (London: Butterworth Publications, 1999)

[1] Sec.1(1) of Trademarks Act,1999 defines ‘trademarks’ as: “any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings. A trademark law, in particular, consists of words (including personal names), designs, letters, numerals or the shape of goods or their packing.”

[2] Morcom, Roughton et al, The Modern Law of Trademarks, (London: Butterworth Publications, 1999).

[3] As Memorandum on the creation of an EEC trademark (Bulletin of the European Communities, Supplement 8/76 states -“while quality function (of trademarks) predominates the mind of the consumer and publicity function predominates in the mind of the producer, but so far as legal aspect is concerned, the decisive criterion is the function of the mark as an indication of origin…only if the proper purpose of the trademark is maintained, can it fulfill its further role as an instrument of sales promotion and consumer information.” (Emphasis the researcher’s).

[4] J.Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, ( 4th ed. St. Paul, MN : West Group, 1996). (Henceforth referred to as McCarthy)

[5] Peter Benson, “Philosophy of Property Law”, in The Oxford Handbook of Jurisprudence, (Jules Coleman and Scott Shapiro eds, Oxford: Oxford University Press, 2002) at p.753.

[6] In Dior v. Milton, 9 Misc. 2d 425, wherein the Court reasoned that : “The theoretic basis of the law of unfair competition is obscure, but the birth and growth of this branch of the law is clear. It is a persuasive example of the law’s capacity for growth in response the ethical, as well as economic needs of society. As a result of this broad background, the legal concept of unfair competition has evolved as a broad and flexible doctrine with a capacity for further growth to meet changing conditions.”

[7] McCarthy has quoted from Restatement of Torts and stated that ‘unfair competition law enforces increasingly high standards of fairness or commercial morality in trade’. Also see the quotation in the above footnote.

[8] Mccarthy §2:9

[9] Chemical Corp. of America v. Anheuser-Busch, 306 F.2d 433, cited from McCarthy at § 1:18

[10] McCarthy § 1:18

[11] As Posner points out ‘trademark law can be best explained on the hypothesis that the law is trying to promote economic efficiency’, Landes & Posner , “The Economics of Trademark Law”, 78 Trademark Rep. 267 (1988).

[12] McCarthy §2:5; Also see Paul Bonewitz, “Beyond Confusion: Reexamining Trademark Law's Goals in the World of Online Advertising”, 81(01) St. John's L. Rev. 899 (2007).

[13] McCarthy §2:8.

[14] Mark P. McKenna, “The Normative Foundations of Trademark Law”, 82 Notre Dame Law Review 1839 (2007).

[15] To understand more about how court have dealt with the issue of infringements through meta-tags refer to Brookfield Communications, Inc. v. West Coast Entertainment Corp, 174 F.3d 1036 (9th Cir. 1999).

[16] Within quotations because there is no agreement as to whether the practice is infringement or not.

[17] For more information on how Adwords work see - http://adwords.google.com (last visited on: November 17, 2007).

[18] More than 97% of the revenue of google comes through advertisement Source: Google, Inc., 2004 Income Statement (2005), available at http://investor.google.com/findata.html .

[19] For example, if you are a competitor of dell laptops (say ‘Bangalore laptops’), you will bid for and buy keywords like ‘dell’ ‘dell laptops’ etc. Thus, when a user searches for dell website in Google, either on top or along side the organic search results, your website’s address will appear as ads (with such descriptions as buy laptop at cheapest rate) which looks exactly similar to the search results.

[20] https://adwords.google.com/select/KeywordToolExternal?defaultView=2>

[21] For example if you type ‘soft drinks’ and click the get keyword ideas button, Google will suggest such keywords as ‘coca cola’, ‘pepsi soft drinks’, ‘fanta soft drinks’ etc which are all trademarks.

[22] 330 F.Supp.2d 700.

[23]To prove trademark infringement under the Lanham Act, a plaintiff must establish that: (1) it has a valid mark that is entitled to protection under the Act; and that (2) the defendant used the mark, (3) in commerce, (4) in connection with the sale or advertising of goods or services, without the plaintiff's consent.( Trademark Act of 1946, §§ 32(1)(a), (5), 43(a)(1))

[24] 456 F.Supp.2d 393; 2007 case.

[25] Rose Hagan (Senior Trademark Counsel, Google Inc.), ‘Keyword advertising and Google’s trademark policy’, State Bar of California Internet Conference oct 2005. from www.fdfdsfdsf.com last visited on: 15^th November 2007.

[26] In 1-800 Contracts v. whenU.com, 414 F.3d 400, wherein the court analogised keyword advertisement to product placements in a drug store.

[27] For example, when the issue of cybersquatting was at large, analogizing the practice with real world (argument that in real world properties are sold on a first-come first serve basis) have led to disastrous results. However, the Congress clearly saw the different issue involved in the case of cybersquatting and passed the anti-cybersquatting laws.

[28] ‘Googled’ is now a verb in the revised Oxford Dictionary.

[29] Urs Gasser, “Regulating Search Engines: Taking Stock And Looking Ahead”, 8(01) Yale J. L. & Tech. 201 (2006).

[30] McCarthy on trademarks §2:4 , See also McCarthy, “Compulsory Licensing of a Trademark: Remedy or Penalty?”, 67 Trademark Rep. 197.

[31] Stephanie Yu Lim, “Can Google Be Liable For Trademark Infringement? A Look At The "Trademark Use" Requirement As Applied To Google Adwords”, 14(01) UCLA Ent. L. Rev. 265 (2007).

[32] The argument that customers are not confused in itself is not valid because it has been proved that awareness among consumers on the distinction between organic results and sponsored links are low. See, Paul Bonewitz, Paul Bonewitz, “Beyond Confusion: Reexamining Trademark Law's Goals in the World of Online Advertising”, 81(01) St. John's L. Rev. 899 (2007).

Right to emergency care hoax mail??

2007-10-03T08:53:00.000+05:30

Recently a particular email, which apparently had the consequence of augmenting the patriotic feelings of many Indians, has been flooding many inboxes. The content of this particular email is as follows.

"Right to Emergency Care:

Date Of Judgment: 23/02/2007.

Case No.: Appeal (civil) 919 of 2007.

The Supreme Court has ruled that all injured persons especially in thecase of road traffic accidents, assaults, etc., when brought to ahospital / medical centre, have to be offered first aid, stabilized andshifted to a higher centre / government centre if required. It is onlyafter this that the hospital can demand payment or complete policeformalities. In case you are a bystander and wish to help someone in anaccident, please go ahead and do so. Your responsibility ends as soonas you leave the person at the hospital.
The hospital bears the responsibility of informing the police, firstaid, etc.

Please do inform your family and friends about these basic rights sothat we all know what to expect and what to do in the hour of need.Please not only go ahead and forward, use it too!!!!"

While those whose degree of patriotism is determined by the frequency of such emails coming to their inbox daily (which in turn i reckon is due to their insecurity feelings) wanted to readily believe this mail, some others tried to look at this particular email objectively and sought to look at the bona fides of the email. Accordingly it’s been concluded that this email also is a hoax.
They have reached this conclusion by searching for the original judgement using the case no: given above (full judgements of all SC cases are available from SC website). Consequently they have found out that case no: Appeal (civil) 919 of 2007 deals with a completely different subject. (It is about a no-profit charitable hospital based in Ghanapur, Andhra Pradesh having claimed exemptions on imported medical equipments, based on Para 2 of Notification No. 64/88-Cus, which were granted. But since according to the classification of hospitals by the notification, it fell under Para 3, it also applied for exemption under the same, after the first exemption was granted. On rejection of the second application, they filed the case in the AP High Court, which again didn’t go in their favour and hence this case was filed in Supreme Court.)
I will add my own reason for concurring with their finding out that the mail is hoax. Such cases which go to the SC wanting to enforce the fundamental rights will be writ petitions and not Appeal(civil) cases as is the case in the given mail. So without further research, one could have safely concluded that the given mail is a hoax.

But for all those ‘patriotic’-minded people out there who felt deceived by the present mail, don’t worry….continue keeping ‘jai hind’ as your signature in your emails and blog postings..for, our own SC judgement has arrived at more or less the same conclusions 18 years ago..yes, it is true.. you can verify it on your own.. and I’ll try to explain it in layman jargon as far as possible.
Two important judgements relating to this are Paramanand Katara v. Union of India (Writ Petition (Criminal) No. 270 of 1988) and later in Paschim Mazdoor Samiti v. State of WB (Writ Petn. (Civil) No. 796 of 1992).
In Paramanand Katara, the SC has held that "Article 21 (which provides that no person shall be deprived of his life or personal liberty except according to procedure established by law) of the Constitution casts the obligation on the State to preserve life. The provision as explained by this Court in scores of decisions has emphasised and reiterated with gradually increasing emphasis that position. A doctor at the Government hospital positioned to meet this State obligation is, therefore, duty-bound to extend medical assistance for preserving life. Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way. On this basis, we have not issued, notices to the States and Union Territories for affording them an opportunity of being heard before we accepted the statement made in the affidavit of the Union of India that there is no impediment in the law. The matter is extremely urgent and in our view, brooks no delay to remind every doctor of his total obligation and assure him of the position that he does not contravene the law of the land by proceeding to treat the injured victim on his appearance before Him • either by himself or being carried by others. We must make it clear that regulations cannot operate as fetters in the process of discharge of the obligation and irrespective of the fact whether under instructions or rules, the victim has to be sent elsewhere or how the police shall be contacted…."
Again in Paschim Mazdoor Samiti v. State of WB (Writ Petn. (Civil) No. 796 of 1992), the SC has held that
"The Constitution envisages the establishment of a welfare state at the federal level as well as at the state level. In a welfare state the primary duty of the Government is to secure the welfare to the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare state. The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Government hospitals run by the State and the medical officers employed therein are duty bound to extend medical assistance for preserving human life. Failure on the part of the Government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21. In the present case there was breach of the said right of Hakim Seikh guaranteed under Article 21 when he was denied treatment at the various Government hospitals which were approached even though his condition was very serious at that time and he was in need of immediate medical attention. Since the said denial of the right of Hakim Seikh guaranteed under Article 21 was by officers of the State in hospitals run by the State the State cannot avoid its responsibility for such denial of the constitutional right of Hakim Seikh."

Hence it can be concluded that though the mail itself was a hoax, its contents were true indeed to an extent. Thus you have a right for emergency care in government hospitals by virtue of your fundamental right to life and against private hospitals because of professional obligation of all doctors.
So..Jai Hind.

2007-08-16T13:10:00.000+05:30

History of Naxalism in Kerala- By, Lalu John Philip

Table of Contents 1

Introduction 2

Research Methodology 3

Chapter 1 5

State of affairs: 1967-68 5

Chapter 2 13

Doing a Post Mortem 13

Conclusion 16

Bibliography 17

Introduction

The naxal challenge faced by different states in the country has heightened the interest in the study of naxalites and their ideology in recent years. Though a bulk of literature has been written on the history of naxalite movement, almost all of this focuses on the history of naxalite movement that happened in Bengal and Andhra Pradesh. But, most historians writing on this area has overlooked the fact that impact of Naxalbari revolt and Srikakulam revolt were far-reaching and in several parts of the country there were attempts to start a naxalite movement on similar lines. As the figures compiled by the Union Home Ministry indicates, from September 1967 till the middle of 1969, there has been a marked increase in the incidents of occupation of land, demonstrations demanding land for the landless, agitations for increase in wages of agricultural labourers etc. in different parts of the country.^¹ One can draw very important lessons from the study of history of rise [and fall] of naxalism in these areas.

Most studies so far have been content to study the history of only those regions where naxalism became popular. This paper focuses on the history of naxalite movement in a state where it failed to take root-Kerala. And it is for this very reason that a study of history of naxalite movement in Kerala is important. What is it that prevented the growth of naxalism in Kerala? The purpose of this paper is to answer this interesting question.

Another important theme this paper addresses is the causes which led to the rise of Naxalism in Kerala. This question is important because, unlike in other states, naxalism did not emerge in Kerala due to the stark class contradictions existing between the landlords and peasants; but it was initiated by a number of other factors; though the presence of contradictions gave an impetus to the movement. The project investigates these other factors which led to the rise of naxalism in Kerala. The first theme is inter-related with this second theme in that the factors which gave rise to naxalite movement also play a bearing on the death of the movement.

The entire project has been written within the broad framework of these two themes.

Research Methodology

Aims and Objectives

The aim of this paper is to analyse the history of naxalite movement in Kerala. It is the objective of this paper to describe the early naxalite revolts that hardly find place in any of the history books written about the history of naxalite movement. An important objective of the paper is to find out why naxalism fizzled out early in Kerala.

Scope and Limitation

The scope of this project is limited to the study of early naxalite movement (1968-1976) in Kerala which was inspired from the Naxalbari revolt. The paper has avoided the discussion about the current naxalite parties.

Lack of research materials on the early naxalite movement in Kerala severely limited the research of the project. The researcher has heavily relied on an autobiography written in Malayalam by the early naxalite leader K.Ajitha.

Research Questions

What are the conditions and causes which led to the rise of naxalism in Kerala?
What are the important revolts that happened in the first phase of naxalism (1968-76)?
Why did naxalism fail to take root in Kerala?

Style of Writing

The predominant style of writing has been analytical. But the second chapter is mostly descriptive.

Mode of Citation

The researcher has made an attempt follow uniform method of citation through out the project. Every effort has been made to cite where information has been taken from and acknowledge ideas that have been borrowed.

Sources of Data

The researcher has relied on secondary sources of data mainly books and articles for the research paper. The researcher has also interviewed one of the early naxalite leader Philip M. Prasad who is right now a practising lawyer at Trivandrum bar.

Chapterization

The research paper is broadly divided into two chapters besides the introduction and conclusion of the paper.

Chapter 1: Deals with the causes and circumstances which led to the rise of Naxalism in Kerala.The second part of the chapter deals with all the important early revolts that happened in Kerala.

Chapter 2: The third and final chapter looks at why naxalism as movement failed in Kerala.

Chapter 1 State of affairs: 1967-68

The naxalite movement in Kerala was inspired from the events that happened in Naxalbari village of West Bengal in 1967. In May 1967, there was an armed uprising of the peasants of Naxalbari under the leadership of Charu Majumdar and Kanu Sanyal. They were the Communist revolutionaries of the CPI(M), who was a party in the ruling United Front Government in West Bengal. They attacked police stations and landlords and had the region under their control where no outsider could enter without their permission^². But by July 1967, the police was able to suppress the uprising and were able to arrest almost all major rebel leaders. Thus the uprising fizzled out without achieving anything significant.

But the Naxalbari incident had a far-reaching impact on the entire agrarian scene throughout India. The uprising, which was widely publicised, inspired the rural poor in other parts of the country to launch military struggles.

In 1968 the first of such incidents inspired from Naxalbari uprising occurred in Pulpally in Wynad and Thalassery in Kannur district of Kerala, followed by revolt in Kuttiyadi(1969) and later in Thirunelly(1970).

The chapter seeks to explain the conditions and causes which led to the rise of naxalism in Kerala.

The naxalite attacks in Kerala were concentrated in the northern districts of Wynad and Kannur and Calicut. So it is imperative to understand the rural situation which was existing in this region which made it conducive for a revolution. The ‘petty bourgeoisie’ intellectuals played the vital parts in mobilising the peasants and adivasis spreading the message of Naxalbari among them. They in turn were guided by the Maoist ideology and got direct encouragement from China. Finally, we need to understand the political events that happened during this period that gave the impetus for the ‘petty bourgeoisie’ to rise in revolt for the cause of farmers and adivasis.

The Rural Scene

As mentioned earlier, the first attack modelled on the Naxalbari incident occurred in the Wynad region. This is because the revolutionaries thought that this region had the most conducive environment for the fostering of revolutionist ideas. The Wynad region had a major portion of the adivasi population. The Wynad valley was remarkable for its vast stretches of paddy field. Scarcity of agricultural labourers to work on the fields as serfs during the 18th century prompted the non-tribal landlords to import large numbers of adivasis (the Paniya and Adiya) from the neighboring forests that now belong to Karnataka and Tamilnadu. In Malabar the cultivating tribals were dispossessed by the influx of immigrants. ^³Poor wages from labour on land and lack of extra avenues of employment outside agriculture drove the landless workers to borrow money from their landlords. In ability to pay off debts landed these people in a form of bonded slavery. The Commissioner of Scheduled Castes and Scheduled Tribes commented in his report of 1965-66: “The survey on the economic conditions of Paniyans of Wynad in Kerala conducted by the Bureau of Statistics and Economics of the Government of Kerala, throws light on the system of bonded labour prevalent in that area.”^⁴ Thus the ideologies of the naxalite revolutionaries appealed them most and the revolutionaries could garner a lot of support from these adivasis.

The role of intellectuals

While ‘comprador’ bourgeoisie and nationalist bourgeoisie were despised in Charu Mazumdar’s theories, the petty bourgeois was assigned a revolutionary role. Petty bourgeois are the middle and lower-middle class people consisting of teachers, white-collar employees, students etc. They had access to education and employment, and could thus afford an intellectual life free from the responsibility of production. This class played an important role in the political struggles during the British Rule. Impatient with the politics of compromise of the Indian National Congress led by the comprador-bourgeoisie, the radical section of this class turned to the path of armed revolt. Many of them later turned to communism. It is therefore no surprise that the intelligentsia came up to provide the naxalite movement with leadership and became its main ideologues.^⁵

It was these ‘petty bourgeoisie’ who provided the leadership for the naxalite revolts in Kerala also. In fact it was they who publicised the ideologies of Mao-TseTung and the Naxalbari incident among the peasants and the tribals. The important leaders among them were Kunnikkal Narayanan, Mandakini, T.V.Appu, Philip M. Prasad and Varghese. The daughter of Kunnikkal Narayanan and Mandakini, Ajitha, was also involved in the activities from her junior college days.

They were dissatisfied with the CPI(M) as the party did not advocate an armed revolution and was participating actively in the parliamentary democracy. They thought that after the death of Stalin, Soviet Union has given up the interests of world revolution and they saw China under Mao TseTung as the true adherents of Marxist principles. They used to listen to the Chinese Radio station Peking Radio which spread the message of Mao. And gradually they became the votaries of Chinese model of communism. Thus when after Naxalbari incident, Peking Radio broadcasted the editorial of ‘People’s Daily’ showering praises on the Naxalbari peasants^⁶, these intellectuals decided to come up in support of the Naxalbari peasants.

They were dissatisfied with the revisionist policies of the Marxist party and the ‘traitorous approach of the party leadership’ in repressing the Naxalbari uprising. Thus they and many other members of the CPI(M) were embarrassed by and were critical of the first United Front Government’s (of whom CPI(M) was in the cabinet) action against the Naxalbari rebels, left the party and were drawn to the Naxalite brand of Communism.

These intellectuals were mainly confined to the townships of Calicut and Thiruvananthapuram. They formed a coordination committee to spread the message of Naxalbari and published and distributed pamphlets and booklets containing the ideologies of Mao, whom they now began to see as their leader and their guide. They got these books about and by Mao from the Chinese Embassy itself. The Embassy even sent them photos and badges of Mao. It is this direct contact with the Chinese Government that helped the intellectual leaders in Kerala later to survive the wrath of the central leadership of CPI(ML) under Charu Mazumdar. They translated the works of Mao, which they got from the Chinese embassy, and published them in Malayalam under ‘Rebel Publications’.

Thus their message of revolution spread widely in Kerala.

The Chinese Contribution

As explained before, China provided all kind of support to the Indian Revolutionaries. The Chinese leaders, since 1967, seem to have taken upon themselves the task of directing and guiding the oncoming Indian Revolution^⁷. From the beginning of the 1966, Peking ideologues and propagandists have been formulating the theme of a mighty national revolutionary upsurge in India. With reports carefully culled from Indian newspapers and suitably edited, Peking Radio began to mount a continuing and ascending propaganda campaign against Congress rule in India.^⁸

So when peasants of Naxalbari rose in revolt, Peking found in it the signal it had been waiting for. Describing it as ‘spring thunder over India’, People’s Daily held that it was the result of the militant action of the "revolutionaries" of the Indian Communist Party who had "deserted the united front government" in West Bengal because "it served as a tool of the Indian reactionaries. . . ." Encouraged by the outbreak of this peasant rebellion, the People's Daily laid down the Maoist line for India in clear, unmistakable terms. Naxalbari was the "prelude to a violent revolution by hundreds of millions of people throughout India "; but, to make it possible, the Indian revolution "must take the road of relying on the peasants, establishing base areas in the countryside, persisting in protracted armed struggle and using the countryside to encircle and finally capture

the cities." The city-orientation of the Indian communist strategy must be given up and the peasants must be made "the invincible force of the Indian revolution "; the proletariat must therefore integrate with the peasants. Since the reactionary forces were “temporarily stronger than the revolutionary forces," communists must use "the whole set of the flexible strategy and tactics of people's war" and "persevere in protracted armed struggle." This armed struggle must begin in the countryside "where the reactionary rule is weak" and where "the revolutionaries can manoeuvre freely." It did not matter if the beginning was small, and if the peasants had to fight with bows and arrows;" so long as the Indian proletarian revolutionaries adhere to the revolutionary line of Marxism-Leninism, Mao Tse-tung's thought and rely on their great ally, the peasants, it is entirely possible for them to advance from one revolutionary rural base area to another in the huge backward rural areas and build a people's army of a new type."^⁹

And it is this propaganda of Peking Radio that inspired the revolutionaries in Kerala to start armed rebellions in the villages on the model of Naxalbari.

Immediate Causes for early revolts

The earliest of naxalite revolts was that in Pulpally-Thalassery. The Pulpally attack was directed against the exploitation of migrant farmers who had illegally occupied the forest land (about 20,000 acres) owned by Devaswom and were cultivating there for years. The forest department asked them to leave and filed criminal cases against them. A special Police Camp (M.S.P) was stationed there for the purpose of removing these migrants from these forest lands. The corruption and vulgarism of the police camped there antagonised these people. The Communist party, who promised to give title of the lands to these people during the elections also failed to deliver the promise. Therefore these people approached the bourgeoisie intellectuals who were spreading the ideology of Mao and Naxalbari to do something. These intellectuals, waiting for an opportunity to put their propaganda to practice, took up the issue.^¹⁰

The Thalassery attack was in support for the impoverished beedi workers of Kannur district. Their problems started with the ‘Ganesh-Bharat Beedi crisis’. After coming to power, the E.M.S government implemented the beedi-cigar Rules as per the Minimum Wages Act. But the Ganesh and Bharat Beedi companies, which employed about 20,000 contractual labourers, were owned by proprietors in Mangalore (Karnataka District). So they closed down their operations in Kannur soon after the Act was implemented and shifted to Mangalore where the Act was not applicable. Thus more than 20,000 labourers lost their only means of livelihood. They began to work as agricultural labourers and thus the wages of the agricultural labourers also went down. The government couldn’t solve this crisis. The naxalist idea was quite popular in this area and the naxalist leaders decided to take up the issue.^¹¹

The Revolts

Pulpally-Thalassery Revolts (Nov. 1968)

As mentioned earlier, Thalassery-Pulpally revolts was the first naxalite attack that took place in Kerala. The naxal leaders decided that they would synchronise the attacks in Pulpally and Thalassery. They formulated the plan that they would split into two. One group, under Kunnikkal Narayanan, would attack the Thalassery Police Station on 20^th November and would procure arms from there. The other group, under Varghese, would then launch the attack in Pulppally and then both groups would rendezvous in the forests near Thirunelly after which they would launch a massive revolution in Thirunelly.

But the Thalassery attack turned out to be a complete failure. On the decided date, out of 1000 people expected, only 315 turned up. And out of those who turned up, many were panic-struck by the heavy security at the police station. So they decided not to attack the police station that night. Next evening, fewer people turned up, but nonetheless they went ahead in attacking the police station. But when the sentry at the police station rung the alarm, all but one fled, and the one grenade that was thrown at the station did not explode.

The other group was waiting in Pulpally for hearing about the news about Thalassery attack in the radio so as to launch their attack in Pulpally. They had formed a coordination council of which prominent members were Varghese, Thettamala Krishnan kutti, ‘Kurichiyan’ Kunjiraman, Kisan Thomman, Philip M. Prasad and Ajitha. The council formulated the plan that they would attack the MSP camp followed by attack on Police Station and to destroy the records in registrar’s office. They also decided to attack the houses of landlords on their way to Thirunelly.

But on the day of the attack, out of 400 people recruited from among the farmers and tribals only fifty turned up. They attacked the wireless camp and hacked the operator to death. They also attacked the Sub Inspector. Many had fled by this time. They decided not to attack the police station and Registrar’s office. On their way to Thirunelly, they attacked the houses of two landlords and distributed the grains and money among the tribal people.

By this time, most of the people involved in Thalassery attack had been arrested by this police and none of their group came to the rendezvous point. So the group under Varghese had to wander through forests and finally when they reached Thirunelly, they were captured by the local people and were handed over to the Police.

Kuttiyadi Attack (1969)

Exactly one year after the Pulpally-Thalassery attack, those of early Naxalites who were outside the jail decided to attack Kuttiyadi Police station. They threw grenades at the station, destroyed the records and attacked the Sub Inspector. But when one of their leader Velayudhan was killed by the sentry fire, all fled after throwing the pamphlets titled ‘Thalassery-Pulpally:one year’. The pamphlet concluded by saying that ‘no force in the world can destroy the revolutionary spirit of the peasants of Kerala that sparked off the Thalassery-Pulpally revolts.’

Thirunelly attack (1970)

Two months after Kuttiyadi police attack, the naxalite leader who led Pulpally-Thalassery also led another attack at Thirunelly. He was trying to mobilise the adivasis during this period. What happened in Thirunelly attack was personal vendetta. They murdered a landlord and a person whom they thought to be an agent of the police. They also looted another landlord’s house.

The government was determined to curb naxalite menace by any force. The local police with the help of Central Reserve Police captured Varghese within few days and according to local people, was brutally murdered; though the police version was that he was killed in an encounter.

The police had arrested all the important naxalite leaders and the rest were dead by this time. And by 1976, the naxalite movement for all practical purposes died in Kerala. As the former Naxalite leader Ajitha put it, “I was caught by the police and landed in jail by the end of 1968... [I] remained in prison for nine years. When I came out of jail, the movement had faded away... circumstances were no longer conducive to revive the movement. So I chose to remain content with a mundane life.”^¹²

Epilogue

On close examination, we can extract certain interesting features. One is that the revolts that happened in Kerala were not "a great storm of revolutionary armed struggle” as predicted by People’s Daily, but were isolated events which happened after a long interval. In all the revolts, the attacks were directed against police stations. Naxalites attack police stations to symbolically represent their protest against the institutions of the state. But in Kerala, these attacks on police stations were not symbolic, they were the end.

Another interesting feature is the number of people that participated in these revolts. Even after months of campaigning, propaganda and recruitment, the naxalite leaders could mobilise only very few people into the struggle. It is also important to note that it is the local population which captured the naxalite leaders and handed over them to the Police.

Chapter 2 Doing a Post Mortem

In most of the histories written about naxalist movement in India, the naxalite revolts that happened in Kerala are hardly mentioned. Even a Keralite author K.Panoor who wrote a travelogue about Naxalbari maintains in his book that in Kerala also ‘smokes’ of naxalite revolts could be seen^¹³. Prakash Karat maintains, ‘It [the naxalite movement] petered out at an early stage, never having achieved any coherent ideological organisational content’^¹⁴.

Why did Naxalism as a movement fail to take roots in Kerala? Did the naxalite revolts that happened had any significance? The researcher in this chapter attempts to find an answer to these difficult questions.

On careful analysis, we can find a number of reasons why naxalism fizzled out at an early stage in Kerala. One very important reason was that the social and political situation prevailing in Kerala was not conducive for the fostering of revolutionist ideas of Naxalism which attempts to overthrow the basic institutions and assumptions of the government. As a prominent early naxalite K. Venu said, and as several former members often claim, “the naxalites [in kerala] failed to realise the realities of Kerala and the impact of the progressive policies followed by successive democratic (especially Left) governments and, before them, other enlightened rulers. They failed to understand that the driving force of armed struggle as envisaged by Charu Mazumdar - the class rivalry of poor, landless peasants against the landlords - was already satiated to an extent in Kerala through social reforms, (though imperfect) land reforms, the crumbling of the landlord-tenant link, the organisation of the working class and the spread of literacy that made old-world-style exploitation impossible.”^¹⁵

The government was determined to curb naxalism completely by following a ‘carrot and stick’-a policy of carrot towards the people and a policy of stick towards naxalites. Soon after the Pulpally incident, government gave titles of land to the migrant farmers and started ‘Dinesh’ beedi company to give employment to the unemployed workers. The state government led by Communist party passed Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act in 1975 with a view to appease and wean away adivasis from the naxalites.^¹⁶

While the government followed a policy of appeasement towards farmers and adivasis, they resorted to extreme repressive measures towards the naxalites. The police arrested almost all the leaders of the movement. The police offensive played a very significant role in curbing the naxalite movement in Kerala.

An essential condition for the success of armed rebellions of the type envisaged by naxalism is the rapid expansion of the rural bases and the fighting forces of the revolutionaries.^¹⁷ But as we have seen, in Kerala, the naxalite leaders, mostly belonging to the ‘petty bourgeoisie’ class, were not able to mobilise large sections of farmers or adivasis. The movement failed to advance beyond the initial stages of the warfare-attacks on police station, attacks on class enemies etc. and that too these were carries out in a few pockets of power. No programmes with long term goals were chalked out and one is tempted to ask what the naxalites planned to achieve with this individual and isolated acts of violence.

Yet another reason for the failure of the movement is that military requirements of the movement were neglected by the leadership. There was a lack of military experience and training which is highly essential for this kind of movement.^¹⁸ Moreover, they disregarded the military strength of the enemy. None of the attacks were planned and coordinated which led to dissensions and pandemonium.

Another very important reason for the early death of the naxalite movement in Kerala was the disunity among the naxalites from the very early stage. The early naxalites did not have the support of the AICCCR. In April 1969, soon after the formation of the all-India coordination committee of the Communist Party of India (Marxist- Leninist) under Charu Mazumdar, a State organising committee of the CPI(M-L) was constituted in Kerala under the leadership of Ambadi Sankarankutty Menon. The imposition of an "unpopular" leadership by the central committee was a fact that led to the first of the divisions within the movement in the State.^¹⁹Again, the leaders where divided into different groups. Thus while Kunnikkal Narayanan’s group sought direct actions, there were other groups stumbling along in different directions. There was one group at Trichur and Calicut, another at Trivandrum headed by the city’s ex-Mayor, Kosal Ramdas, and yet a third led by K.P.R Gopalan, trying to coordinate the activities of all these groups.the activities of all these groups were, however, confined to publishing Maoist articles in different journals.^²⁰

On a final analysis, the researcher is of the opinion that the conditions prevailing in Kerala was not conducive for the growth of naxalist ideas and therefore the movement died a natural death.

Conclusion

In this paper, the primary focus of the researcher has been to delineate the causes that led to the rise of naxalism in Kerala and also to find out why naxalism as a movement failed to take root in Kerala.

It was pointed out that the revolts which drew its inspirations from the much publicised Naxalbari revolt were led by the ‘petty bourgeoisie’ class. These people within the Marxist party had shifted their loyalty to Communist China and Mao. So when Peking Radio, which was the main propagandist instrument of the Communist China, praised the Naxalbari revolt and called upon the communists to organise similar revolts all over the country, the revolutionaries within the Marxist party in Kerala also decided to organise armed rebellions on the lines of Naxalbari.

But we could see that the same mistakes which made Naxalbari rebellion a failure-failure to advance beyond the initial stages of warfare, disunity among the ranks, lack of military skills and training- was repeated in the revolts which happened in Kerala. The stringent measures adopted by the government to deal with the revolutionaries prevented the movement from taking roots. The government were also successful in appeasing the local population to an extent and could prevent them from going in the ‘naxalbari’ way.

But more than anything else, the class contradictions within the Kerala Society was not high as to spark off an armed rebellion. People posed their faith in the democratically elected governments and the progressive policies followed by them. The revolutionaries failed to grasp this reality of the Kerala society. As to the question whether there is a future for the naxalite movement, the following excerpt is very apt: “The crucial condition of the future success of the Naxalites, is a new broad-based socialist movement with new organisational strategies, to which they could contribute, and which would carry them forward into a wider political arena where they could begin to act out their politics with patience and understanding. But before that they need to make peace among themselves.”^²¹

Bibliography

Articles:

Bhabani Sen Gupta, “A Maoist Line for India”, The China Quarterly, No. 33. (Jan. - Mar., 1968)
C.R Bijoy, “Muthunga:The Real Story”, Economic and Political Weekly, May 17, 2003
Kanu Sanyal et al., “Documents: China and Naxalites”, Pakistan Forum, Vol. 3, No. 5. (Feb., 1973),
Marcus F. Franda, “India's Third Communist Party”, Asian Survey, Vol. 9, No. 11. (Nov., 1969), pp. 797-817
P.Krishnakumar, “Embers of a Revolution”, Frontline, Vol.22, issue 21, Oct.8-21 2005
Prakash Karat, Reviewed Work(s): Kerala: Yenan of India. Rise of Communist Power 1937-1969 by Victor M. Fic, Social Scientist, Vol. 1, No. 1. (Aug., 1972)
Sreejith K, “Naxalite Movement and Cultural Resistance.Experience of Janakiya samskarika Vedi in Kerala (1980-82)”, EPW Dec.10, 2005.
Sumanta Banerjee, “Naxalbari:beyond past and future”, Economic and Political Weekly, June 1 2002

Books:

K.Ajitha, Ormakkuruppukal (Autobiography), (Kottayam: D.C Publications, 1982)
K.Panoor, Ha Naxalbari, (Kottayam: D C Publicatons, 2004)
Sumanta Banerjee, In the wake of Naxalbari, (Calcutta: Subarnarekha, 1980)

1 Id. at p.119

2 Sumanta Banerjee, In the wake of Naxalbari: A history of the Naxalite movement in India, (Calcutta: Subarnarekha, 1980), pp.2

3 C.R Bijoy, “Muthunga- The Real story”, Economic and Political Weekly, 38(20), May 17-23 2003 at pp.4.

4 Supra note 1 at 7.

5 Id.

6, The Editorial of People's Daily, July 5, 1967 described it thus: "A peal of spring thunder has crashed over the land of India."

7 Bhabhani Sen Gupta, “A Maoist Line for India”, The China Quarterly, No. 33. (Jan. - Mar., 1968), pp.10

8 For example, the November 11 bulletin put the number of Jan Sangh demonstrators at " 700,000," and those killed and wounded at 10 and 500 respectively. Actually, not more than 200,000 joined the demonstration and only two were killed and seven wounded. Another typical instance is a " news item " of the evening Indian transmission on August 14, 1966: "The struggle of the Indian people for subsistence

and against persecution is developing highly and vigorously throughout the country. They are using violence to deal with the armed suppression by government authorities." " 15,000 " students in Assam, " over 220,000 government employees " in Maharashtra and "200,000 tea garden workers" in West Bengal were said to be on strike or engaged in various kinds of agitations, apart from smaller numbers of

petty businessmen. Actually, only about 5,000 students in Assam were agitating at that time, and there was no "strike " of government employees in Maharashtra, but only a token protest.

9 Ibid at 13.

10 K. Ajitha, Ormakkuruppukal, ( Kottayam: D.C Publications, 1982), p.

11 Ibid.

12 P.Krishnakumar, “Embers of a Revolution”, Frontline, Vol.22, issue 21, Oct.8-21 2005

13 K.Panoor, Ha Naxalbari, (Kottayam: D C Publicatons, 2004), p.60

14 Prakash Karat, Reviewed Work(s): “Kerala: Yenan of India. Rise of Communist Power 1937-1969” by Victor M. Fic, ,Social Scientist, Vol. 1, No. 1. (Aug., 1972), pp. 71-77.

15 Supra note 12.

16 C.R Bijoy, Muthunga:The Real Story, Economic and Political Weekly, May 17, 2003, p.7

17 Supra note 1.

18 One important leader kissan Thomman died by the explosion of bombs which he had kept in a kit on a tree branch. Another leader’s hand was lost when the bomb exploded in his hand. Also recall that in Thalassery attack, the bomb that was thrown at the police station did not explode.

19 Supra note 12.

20 Supra note 1 at 387.

21 Sumanta Banerjee, “Naxalbari:beyond past and future”, Economic and Political Weekly, June 1 2002. at p.2115

Constitutional law-Central and state jurisdiction in the area of criminal law and administration

2007-08-16T13:09:00.000+05:30

Constitutional Law

Central and state jurisdiction in the area of criminal law and administration

by,

Lalu John Philip, I year B.A.LLB, NLSIU.

Introduction

In a federal system, where the functions and powers are divided between the central and regional governments, it is important to determine the scope and extent of legislative powers that rests with the centre and the states. The framers of our constitution have provided specifically a detailed list of subject matter over which the central or/and state governments can legislate.^¹But the problem with providing such an elaborate lists of subjects in a constitution is that, as K.C. Wheare points out, ‘it is certain that disputes will arise about whether a particular matter falls under the headings of one list or of the other, for words are wide and ambiguous, and it would be remarkable if, in drawing up two or three lists, there was not some possibility of overlapping between them’.^²

Thus the purpose of this paper is to find out whether there are any such overlapping between the entries relating to criminal law and administration and also whether there are any ambiguities to the meaning of the words used in the lists. In short, the paper purports to delineate the scope and extent of the central and state jurisdiction in the area of criminal law and administration.

Relevant Entries

The jurisdiction of centre and state in matters relating to criminal law and administration is provided in entry 1 and 2 of List III. These entries run as follows.

Entry 1: ‘Criminal law, including all matters included in the Indian Penal Code at the commencement of the Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power.’

And entry 2 provides that

‘Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of this Constitution.’

The implication of the fact that criminal law is a subject matter of concurrent list is that states are also competent to legislate with respect to matters in this list subject to the rule of repugnancy in Art.254.^³

Criminal law can be defined as ‘that part of the law which deals with the definition, and punishment of crime and with the procedure for the trial of persons suspected or accused of crime: that branch or division of law which defines crimes, treats of their nature, and provides for their punishment. The term “criminal law” is sufficiently comprehensive to cover all of that branch of jurisprudence which deals in any way with crimes and punishments.’^⁴

The head of legislation ‘criminal law’ in item 1 of List III is of wide significance and comprehensive in its scope. Under this head the state legislature and Parliament have competence to legislate upon all matters which relate to criminal law, so long as the laws so enacted do not affect offences against laws expressly excluded under the Entry itself.^⁵

The words following the expression ‘criminal law’ enlarge the scope to any matter which can validly be considered to be criminal in nature. The exercise of power under this entry, therefore, has to be construed liberally so as to give full play to the legislative activity. The width of the entry, however, is controlled by the latter expression which takes away the power of either legislature to legislate in respect of offences against laws with respect to any of the matters specified in List I or list II.^⁶

Thus when the competence of Gujarat State legislature to pass Gujarat Lokayukta Act, 1986 was challenged, the Court held that the impugned Act, in pith and substance is a law to provide for investigations or enquiries into the allegations against public functionaries falling within the domain of Criminal law including the Indian Penal Code and actionable wrongs. The Act squarely falls under entries 1 and 8 of the concurrent list, and not under entry 97 of the union list. Therefore, the court held that the state legislature was competent to enact it.^⁷

In short, the stand of the court can be said as follows: ‘It is well established that the widest amplitude should be given to the language of the entries. But some of the entries in the different lists or in the same list may overlap or may appear to be in direct conflict with each other. It is then the duty of this court to reconcile the entries and bring about a harmonious construction.’^⁸

The potential of conflict or overlap in this entry lies in the fact that it excludes any of the offences against laws with respect to any of the matters specified in List I or List II. It is quite possible that, central legislature may not be able to legislate on a criminal matter as it might be a matter specified in List II. Thus a legislation by union parliament to be valid under this entry must satisfy two requirements; one, it must relate to criminal law and two, the offence should not be such as has been or could be provided against laws with respect to any of the matters specified in List II.

Most often the entry in list II which has the potential to come into conflict with the entry 1 of concurrent list is that of ‘public order’. This is because public order is so closely related to (criminal) law and administration, that when the centre brings about a piece of legislation related to criminal law, question arises as to whether that legislation is a subject matter under ‘public order’ or not. If it can be proved that it is a legislation relating to ‘public order’, then the union parliament would not have the competency to pass that particular legislation.

Thus one of the two issues addressed in this paper is what is the scope of entry 1 of list II, i.e. Public order (but not including the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power) with reference to the entry 1 of list III.

Public order and criminal law

To understand what part of criminal law comes under the purview of public order, firstly it is important to understand the meaning attributed to public order by courts.

In Romesh Thappar v. The State of Madras^⁹, the SC while discussing the validity of Madras Maintenance of Public Order Act, 1949, defined the meanings of public order and public safety. The court held that "public order" is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of the internal regulations enforced by the government which they have established. Although section 9(1-A) of the impugned Act refers to "securing the public safety" and "the maintenance of public order" as distinct purposes, it must be taken that "public safety" is used as a part of the wider concept of public order, for, if public safety were intended to signify any matter distinct from and outside the content of the expression "public order," it would not have been competent for the Madras Legislature to enact the provision so far as it relates to public safety. Quoting Stephen in his Criminal Law of England [Vol. II, p. 242], the court observed that "Unlawful assemblies, riots, insurrections, rebellions, levying of war, are offences which run into each other and are not capable of being marked off by perfectly defined boundaries. All of them have in common one feature, namely, that the normal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it. Though all these offences thus involve disturbances of public tranquillity and are in theory offences against public order, the difference between them being only a difference of degree, yet for the purpose of grading the punishment to be inflicted in respect of them they may be classified into different minor categories as has been done by the Indian Penal Code. The differentiation is also noticeable in Entry 3 of List III (Concurrent List) of the Seventh Schedule, which refers to the "security of a State" and "maintenance of public order" as distinct subjects of legislation. The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off, may be, roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were differences in kind.

The court in this case held the impugned section of the above Act void and unconstitutional by opining that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order.

The distinction was made clearer in a very similar case^¹⁰, in which the court by applying the opposite concepts, explained these two terms. Thus the court opined that while 'public disorder' is wide enough to cover a small riot or an affray and other cases where peace is disturbed by, or affects, a small group of persons, 'public unsafety' (or insecurity of the State), will usually be connected with serious internal disorders and such disturbances of public tranquillity as jeopardize the security of the State.

In Ram Manohar Lohia v. state of Bihar^¹¹, SC court made another distinction-between public order and law and order. In this case, an order was passed by the District Magistrate directing detention of petitioner under Rule 30 (1) (b) [which entitled him to prevent subversion of public order] with a view to prevent him from acting in any manner prejudicial to public safety and maintenance of law and order. Court observed that ‘public order’ and ‘law and order’ are not same thing. An Order of detention to prevent acts prejudicial to ‘public order’ might be justifiable but a similar Order to prevent acts prejudicial to ‘law and order’ would not be justified by Rule. ‘It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. By using the expression "maintenance of law and order" the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules’.

Thus if we analyse the meanings given to public order by courts, we can see that it does not include law and order nor does it include security of the state. This becomes problematic, because then the question arises who has the jurisdiction over law and order. One possible interpretation that can be given is that after carving out public order and security of state from law and order, what remains of it will go under criminal law and administration.

Decision of the Court in Kartar Singh v. State of Punjab

The scope of the entry “public order” and its relation to entry regarding criminal law was explained in detail by the SC in the case of Kartar singh v. state of Punjab^¹². In this case, the question before the five-judge bench was the constitutional validity of Terrorist and Disruptive Activities (prevention) Act of 1985 passed by the parliament.

R.M Sahai J. pointed out the issue very clearly. Terrorist or disruptive activity is criminal in content, reach and effect. The central and state legislatures both, therefore, are empowered to legislate in respect of such an activity under entry 1 of concurrent list. But the entry carves out an exception by precluding either of the legislatures from exercising the power if it is in respect of offence against laws with respect to any of the matters specified in List II or I. The controversy thus narrows down to if the legislation relating to TADA can fall in entry 1 of List II then the state legislature would have competence to make a law under this entry and create offences for violation of such law under item 64 of List II and central legislature would be precluded from making any law. That would happen if it can be said that law relating to TADA is either in fact, or in pith and substance a law relating to, ‘public order’.

None of the judges disputed the fact that terrorist activities would not come under the ambit of public order. But while majority traced the competency of parliament to entry 1 of List I (Defence of India), judge Sahai held that the central legislation could be upheld under entry 1 of List III.

The researcher believes that the approach adopted by J.Sahai is more correct because terrorism is criminal in nature and when an entry for criminal law is provided specifically in the concurrent list, it is unnecessary to give a wide interpretation to entry 1^¹³ of List I.

Another advantage of tracing the competence to concurrent list is that, the states will also have the power to deal with terrorism or other similar problems (naxalism?) that may affect the states.

He reached this conclusion by distinguishing terrorism from mere public disorder. “Is the distinction between public order as visualised in Entry 1, list II and TADA of degree only or are they substantially different? ‘Terrorism constitutes a direct repudiation of liberal and human values and principles, and that terrorist ideology is…..constantly deployed in a struggle to defame and discredit democracy.’ Terrorism whether it is sponsored or revolutionary or even political by its nature cannot be considered to be public order as explained by this court. Conceptually, public order and terrorism are different not only in ideology and philosophy but also in cause or the mens rea the manner of its commission and the effect or result of such activity. Public order it is well understood and fully comprehended as a problem associated with law and order. Terrorism is a new crime far serious in nature, graver in impact, and highly dangerous in consequence. One pertains to law and order problem whereas the other may be political in nature coupled with unjustifiable use of force threatening security and integrity of the state.”

Jurisdiction in the area of criminal administration

In the second part of the project, the researcher purports to analyse the scope and extent of the jurisdiction of state and parliament in the area of criminal administration. In this project only one aspect of it, namely the jurisdiction of states and parliament in the matter of suspension, remission and commutation of sentences, is analysed.

Under Art.161, the state government has the right to remit or commute the sentence of any convict^¹⁴.Also, entry 4 of list II provides that “ Prisons, reformatories, Borstal institutions and other institutions of a like nature, and persons detained therein; arrangements with other States for the use of prisons and other institutions”. But the problem to be considered is in case of a transferred prisoner, which is the appropriate government to remit or commute the sentence-is it the government who convicted the prisoner or is the government in whose prison, the prisoner after transfer is lodged? The Punjab & Haryana High Court considered this issue in detail in the case of Jhanda Singh v. State of Punjab^¹⁵. The Court said that, the transferee state cannot rely on the phrase ‘any person’ in Art.161 and say that the phrase includes transferred prisoners also. If that were the case, then it would also cover even the case of a convict who after jumping the bail absconds and enters the territory of the other State. But this definitely is not the case and therefore the entry has to be reasonably construed.

But the Court said that by virtue of sec.432 and 433, the appropriate government has the power to remit and commute the sentences of any convict. And by constructing 432(7)^¹⁶ which defines what ‘appropriate government’ means, the power to remit or commute the sentence of a convict lies with the state within which the offender is sentenced.

Then again, no state governments does not have extra-territorial jurisdiction. But the court said that by virtue of subsection (2) of Section 3^¹⁷ of the Transfer of Prisoner’s Act, 1950^¹⁸, “the writ, warrant or order of a Court by which he has been committed, if happens to be located in a State other than the State in whose prison the prisoner concerned is lodged, are afforded extra-territorial operational efficacy.”

Another question to be considered is the competence of the parliament to legislate in matter relating to suspension, remission and commutation of sentences. Does it come under criminal procedure or is it a matter that related to prison or prisoners as provided in entry 4 of list II?

Thus in Maru ram v. Union of India^¹⁹, the petitioners challenged the vires of Section 433A of the Criminal Procedure Code (Procedure Code, for short) which compels “'caging' of two classes of prisoners, at least for fourteen eternal infernal years, regardless of the benign remissions and compassionate concessions sanctioned by prison law and human justice.” But Court rejected this contention saying that “Entries 1 and 2 in List III (especially Entry 2) are abundantly comprehensive to cover legislation such as is contained in Section 433A, which merely enacts a rider, as it were, to Sections 432 and 433(a). We cannot read into it a legislation on the topic of 'Prisons and Prisoners'…………. This limited prescription as a proviso to the earlier prescription relates to execution of sentence, not conditions in prison or regulation of prisoner's life.”

The term ‘criminal procedure’ in entry 2 is intended to signify all that was being treated as part of criminal procedure in the Acts of the Indian legislatures prior to the enactment of the constitution. Not only matters strictly relating to procedure but all matters which, though not matters of procedure, stood included within the Criminal Procedure Code at the start of the Constitution would be subjects of concurrent legislation.^²⁰

Conclusion

In this project, the researcher addressed two issues related to the jurisdiction of centre and state in the area of criminal law and administration. One, the apparent conflict between the entry ‘public order’(entry1 of state list) and ‘criminal law’ (of concurrent list). Through case analysis, the researcher concluded that serious offences which, though may affect public order, are actually a threat to the security of the state and since they are criminal in content, the jurisdiction to make laws on them should be traced to criminal law of concurrent list so as to enable both central and state governments to legislate on them.

The second issue, broadly, was regarding the jurisdiction of states and centre to deal with ‘prisoners’. But the specific issues dealt with were 1) which state has the power to remit or commute the sentence of a transferred prisoner and 2) does the centre has the competence to provide for minimum number of years to be served by the prisoners undergoing life imprisonments. The researcher found that in the case transferred prisoners, it is the state who has convicted him has the right to remit/commute his sentence and not the state in whose prison he is lodged. And the Centre has the jurisdiction to provide the minimum term to be served by the prisoners as it is a matter relating to criminal procedure and not one that relates to ‘prison and prisoners’.

1 Art.246 read with schedule VII

2 K.C.Wheare, ‘Modern Constitutions’,( Bombay:Oxford University Press, 1984)

3 M.P Jain

4 P Ramanatha Aiyar, “The Law Lexicon”

5 (1966) 2 M.L.J. 194

6 Per R.M. Sahai J. in Kartar Singh v. State of Punjab 1994 CRI. L. J. 3139.

7 Rajendra Manubhai Patel V. State of Gujarat AIR 1992 Guj. 10

8 Harakchand Ratanchand Banthia v. Union of India, AIR 1970 SC 1453.

9 MANU/SC/0006/1950.

10 Brij Bushan v. state of Delhi AIR 1950 SC 129.

11 AIR 1966 SC 740

12 1994 CRI. L. J. 3139.

13 Defence of India and every part thereof including preparation for defence and all such acts as may be conductive in times of war to its prosecution and after its termination to effective demobilisation.

14 Art.161 provides that “The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.”

15 AIR 1976 P&H 358

16 This section provides that (a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.

17 “The officer in charge of the prison to which any person is removed under sub-section (1) shall receive and detain him, so far as may be, according to the exigency of any writ, warrant or order of the court by which such person has been committed, or until such person is discharged or removed in due course of law.”

18 Which has been passed by the Parliament under entry 2 and 4 of list III

19 MANU/SC/0159/1980

20 AIR 1949 Mad. 307