CHANAKYA NATIONAL LAW

UNIVERSITY, PATNA

Justice Krishna Iyers monumental

judgements
Legal language and Communication
Skills final draft

Submitted To:- Submitted By:-

Dr.Pratyush kaushik Tanay Choudhary
Faculty of English Roll no. 1770
B.A.LLB (Hons.)
1st -Semester
 Introduction

Aims and Objectives: The researcher wants to know the following things
1. The role of Krishna Iyer in the field of judicial system.
2. What are the judgements passed by him for the welfare of judicial system?
3. About the major cases dealt by him during his career.

Hypothesis:

The Researcher tends to presume that the monumental judgements given by him have a
positive impact not only in the judicial system but also in the life of common people.

Limitation:

Time was a very big limitation while making this project. The researcher had
very limited time.

Source of data:

The researcher used both primary and secondary data for making this project.
1. Primary data includes various Supreme Court judgements and Indian Constitution.
2. Secondary data includes various books written on justice Krishna Iyer.

Research methodology:

The researcher will use the doctrinal method of research which includes various
Judgements, Books, articles.

Introduction

Justice V R Krishna Iyer (15 November 1915- 4 December2014) had it all that takes to be the
cream of the crop among his contemporaries in terms of judgeship, statesmanship,
leadership and much more that shaped him up as a dynamic legal practitioner, prominent
legislator, minister for key portfolios in Kerala, member of Indian Law Commission, Judge of
High Court and later of Supreme Court. He, who began his legal practice as an advocate in
1937 at Taluk level subordinate court in Telliserry, Kerala beseeched, defended and argued in
the trial and appellate courts and engaged in debates in the matter of legislation processes at
Madras Presidency and Kerala Legislative Assembly. Having acquired training in the art of
drafting recommendations and reports while serving as a member of Law Commission (1971-
1973), he also had the privilege to witness the pre and post constitutional courts,
adjudicatory process and legal developments. He stands distinguished among his
contemporaries for his versatile knowledge coupled with considerable experience in
litigating, legislating and adjudicating multi phases and procedures of law. With this worldly
exposure, he decided cases and rendered justice to the deserving.1
He was referred to as a conscience keeper of justice in India, was a visionary and a path
breaking judge, who reformed the Indian criminal justice system with bold changes to jails &
police stations, remained a human right champion and forged new tools to dispense social
justice & justice in the public interest, which stood not just the test of time, but had a
profound impact on society and whole of the judicial system which will follow for decades.

Early life of Krishna Iyer

Justice vaidyanathapuram Rama Ayyar Krishna Iyer in short VR Krishna Iyer was born in 1915
at Palakkad, in Malabar of the then Madras state. He born to mother Narayani Ammal and
father Rama Ayyar who was a lawyer with humble beginnings but later he made a
distinguished career at the bar in Malabar. Reference to his mother was touching a tender
chord in in him, and instantly a flood of remembrances of kindness and grief flushed his face.
Being emotional by nature and literary in expression, he quoted John Mansfield from one of
the books he picked up from his library:

In the dark womb where I began

My mothers life made me a man
Through all the months of human birth
Her beauty fed my common earth.
I cannot see, nor breathe, nor stir,
But through the death of some of her.2

1
L S Sathiyamurthy, The Life and Times of Justice V R Krishna Iyer, Live Law (Sept.28, 2017, 05:20 PM),
http://www.livelaw.in/life-times-justice-v-r-krishna-iyer/
2
P.Krishnaswamy, V.R. Krishna Iyer: A Living Legend 1-2 (2015)
It was due the influence of his father that he inherits concern for the poor and absorbed
those strands of character which stood him good stead in his passage of life and helps to
withstand against the challenging decades.

Parentage is a very important profession;

But no test of fitness for it is ever imposed
in the interest of children.3

Rama Ayyar had seven children, the first of whom was Venkateswaran, while the second one
born was Krishnan. He was followed by Ranganayaki, Vijayalakshmi, Meenakshi,
Ramachandra and Laksminarayanan. Krishnans elser brother Venkateswaran , who always
topped in the class bestowed great love and affection on his brothers and sisters. He was the
pet of his parents and idol of his siblingsHe study in a school in his village itself and never
attained harder punishment due to his fathers being a reputed lawyer. However, his guru
was his grandfather with silver hair, having plethora of knowledge about Literature and
Mathematics which makes little Krishna a bit astonished that how a small brain can store this
whole lot of knowledge. This was his grandfathers y teaches which make him inclined
towards Literature and Mathematics.He graduated from the Annamalai University and
obtained a honoris causa degree of Doctor of laws. As we know that he was good in subjects
that were taught by his grandfather, he topped in English and Economics and won Rt. Hon.
Srinivasa Sastry Prize for English4 . After graduating from there he begins his life as a lawyer
with his father at Tellicherry Bar. He stood for the communist struggles (working class and
peasantry) even in cases of murder and riots. He had gone to jail under false charges for
supporting the peasants. It was his phenomenal success at the bar which paved the path for
his marriage, he was married to Sarada the daughter of Munsif (trial judge).

In 1956, he was elected initially to Madras Legislative Assembly and later,

after reorganisation of States, to the Kerala Assembly, where he was appointed as Minister in
charge of important portfolios, like Home, Law, Social Welfare, etc. He drafted the landmark
Kerala Land Reforms Act.5

Judicial life of Justice Krishna Iyer

He became a high court judge in 1968 of kerala and later elevated to Supreme Court in 1973,
he served for three years and seven and half years respectively. He had also given his services
for Law Commission from 1971 to 1973 and he drafted a report, would lead to a Legal-Aid

3
Id.
4
Id.
5
Justice VR Krishna Iyer, Ministry of Law and Justice,(Sept.28, 2017, 6:10 PM)
movement in the country. In his tenure of less than eight years in the Supreme Court, Justice
Krishna Iyer pronounced more than 700 judgments of which a greater number were
progressive and had set a new trend in the judicial governance.6

As Professor Upendra Baxi said, from the Supreme Court of India he made it the Supreme
Court for Indians. He defined fundamental rights as well as charters of freedom, not just to
acquire and hold wealth, but freedom from poverty and misery. He ensured that the
hesitation in reading due process into Article 21 was dispelled. The foundation for a whole
jurisprudence was laid by reading Article 14 as a charter against non-arbitrariness.7

His writing style was unique, he didnt followed the traditional way of writings and always
give imparted a literary touch to the writings of judgements. He was very enthusiastic, always
ready to give lectures in support of peoples causes and professional enlightenment. It wasnt
like that everyone supported him; he also faces many criticism from lawyers and jurists for his
unconventional views and unjudicial unenglish. He didnt received a red carpet welcome
when he was elevated as the judge of the Supreme Court. Many political partys leaders
opposed the move. Even some members of bar have sent a complaint to the President
doubting on his post. Justice Iyers unbiased adjudication of cases, unaffected by the political
ideologies he followed as a public representative, humane approach, creative interpretation
of laws, propounding of theories for the welfare of people and to safe guard their rights have
falsified the apprehensions as futile and baseless.8 He was a thinker ahead of his time and
wrote some landmark judgements.

Maneka Gandhi case:

The case of Maneka Gandhi paved the way to read the plain words "right to life" and
"personal liberty" to mean many human rights now, thus expanding Article 21 of the
Constitution. That the Government cannot put fetters on the rights of citizens, nor should
courts get unduly alarmed. However, this judgment started focus of courts, society and
Governments on respecting and ensuring rights and freedoms of individuals.9

According to Dicey, - The right to personal liberty as understood in England means in

substance a persons right not to be subjected to imprisonment, arrest, or other physical
coercion in any manner that does not admit of legal justification.10

6
Sathiyamurthy, Supra note 1
7
Harish salve, Justice VR Krishna Iyer: Man who rescued Supreme Court from supreme shame, The Times Of
India, (sept.28, 2017, 6:35)
8
Sathiyamurthy, Supra note 1
9
Supra note 5
10
Suryabhan singh, Maneka Gandhi, Legal Services India, (sept.29, 2017, 1:06)
Article 21 of the Constitution says, No person shall be deprived of his life or personal liberty
except according to procedure established by law.

Maneka Gandhis case is not only a landmark case for the interpretation of Article 21 but it
also gave an entirely new viewpoint to look at the Chapter III of the Constitution. Prior to
Maneka Gandhis decision, Article 21 guaranteed the right to life and personal liberty only
against the arbitrary action of the executive and not from the legislative action. Broadly
speaking, what this case did was extend this protection against legislative action too.

Pre-Maneka Gandhi: Old Position

The concept of personal liberty first came up for consideration of the Supreme Court in A.K.
Gopalans case. In this case, the Petitioner had been detained under Preventive Detention
Act, 1950. The petitioner challenged the validity of his detention on the ground that it was
violative of his Right to freedom of movement under Art. 19(1)(d), which is the very essence
of personal liberty guaranteed by Art. 21 of the Constitution. He argued that the words
personal liberty include the freedom of movement also and therefore the Preventive
Detention Act, 1950 must also satisfy the requirements of Art. 19(5). It was further argued
that Art. 21 and Art. 19 should be read together as Art. 19 laid out the substantive rights
while Art. 21 provided procedural rights. It was also argued that the words procedure
established by law actually meant due process of law from the
American Constitution which includes principles of natural justice and the impugned law does
not satisfy that requirement.

Rejecting both the contentions, Supreme Court, by the majority, using the meaning given to
the phrase personal liberty by Dicey, held that the phrase personal liberty in Art. 21 meant
nothing more than the liberty of the physical body, that is, freedom from arrest and
detention without the authority of law. According to majority, the term liberty was wider in
meaning and scope than personal liberty. Hence, while liberty could be said to include Art.
19 within its ambit, personal liberty had the same meaning as given to the expression
liberty of the person under English law. Hence, the majority took the view that Art. 19 and
Art. 21 deal with different aspects of liberty. The Court further interpreted the term law as
State made law and rejected the plea that the term law in Art. 21 meant jus naturale or
principles of natural justice.

It is pertinent to mention here that in A.K. Gopalans case, the attention of the Supreme Court
was drawn to the legislative history of Art. 21 which showed why the expression due process
of law was replaced by procedure established by law. However, it is unfortunate that the
legislative history of Art. 22, and particularly of clauses (1) and (2), whereby the substance of
due process was reintroduced, was not brought to the attention of the Supreme Court.

But this restrictive interpretation of the expression personal liberty has not been followed
by the Supreme Court in its later decisions. Like for example, in Kharak Singhs case, it was
held that personal liberty was not only limited to bodily restraint but was used as
compendious term including within itself all the varieties of rights which go to make up the
personal liberty of man other than those dealt within Art. 19(1).11

BRIEF FACTS OF THE CASE

On the 4th of July, 1977, Smt. Maneka Gandhi received a letter from the Regional Passport
Office, Delhi, asking her to submit her passport (No. K-869668) within seven days from the
day on which she had received such letter, i.e. before 11th July 1977. The letter stated that it
had been the decision of the Government of India to impound her passport under Section
10(3)(c)of the Passport Act 1967. The grounds for such an impounding, as told to her, was
public interest.
Smt. Maneka Gandhi immediately sent a letter to the Regional Passport Officer, inquiring
about the grounds on which her passport had been impounded. She also requested him to
provide a copy of the Statement of Reasons for making of such an order. The reply sent by
the Ministry of External Affairs was that it was the decision of the Government of India to
impound the passport in the interest of the general public. Also, there were orders to not
issue her a copy of the Statement of Reasons. Smt. Maneka Gandhi thus filed a petition with
regards to the matter.

JUDGEMENT OF THE CASE

It was held that Section 10(3)(c) of the Passport Act confers vague and undefined power on
the passport authorities, it is violative of Article 14 of the Constitution since it doesnt provide
for an opportunity for the aggrieved party to be heard. It was also held violative of Article 21
since it does not affirm to the word procedure as mentioned in the clause, and the present
procedure performed was the worst possible one. The Court, however, refrained from
passing any formal answer on the matter, and ruled that the passport would remain with the
authorities till they deem fit.
RATIO DECIDENDI OF THE CASE
Ratio Decidendi is commonly defined as the reasons for the judgement. It basically refers to
the material part of the judgement without which the judge would have been unable to reach
to the present conclusion of the case.
Before stating the ratio of the case and the reasons for the same, lets first look at Section
10(3)(c) of the Passports Act 1967 if the passport authority deems it necessary so to do in
the interests of the sovereignty and integrity of India, the security of India, friendly relations
of India with any foreign country, or in the interests of the general public;
Following is the ratio of the case, with an analysis of the same
1. Section 10(3)(c) of the Passport Act is violative of Article 14 of the Indian
Constitution
11
Id.
Article 14 of the Constitution talks about equality before law. This provision is absolutely
against arbitrariness or vagueness of any sort as far as the actions of the executive are
concerned. Section 10(3)(c) of the Passports Act confers unlimited powers on the passport
authorities. Since it is vague in its wordings, the application of such a provision has not been
very clearly defined in the Act. Thus, this leaves a lot of scope for the executive to interpret it
in whichever way they want, and hence get away with a lot of actions under the guise of
varied interpretation.
The provision also leads to arbitrariness in the actions of the executive. The arbitrariness
comes from the fact that it is completely in the hands of the passport authorities to decide
whether or not, and how to proceed in a particular case. The words deems it necessary give
the passport authorities complete freedom to act in whichever manner they want, and in
whichever cases they want. Thus there is no uniformity or reasonableness in the actions of
the passport authorities, and their actions could differ from case to case.
E.P Royappa v. State of Tamil Nadu & Another,[1974] 2 SCR 348, was the judgement applied
by the Supreme Court to further justify their views. It was held in this case that Article 14 is
one of the pillars of the Indian Constitution and hence cannot be bound by a narrow and
inflexible interpretation. Article 14 should thus be given the widest interpretation possible,
which also includes reasonableness and arbitrariness of certain provisions of the legislations.
Based on these observations the Court held Section 10(3)(c) of The Passport Act violative of
Article 14 of the Constitution.

2. Violation of the Principle of Natural Justice: The Audi Alteram Partem Rule
The audialterampartem rule is one of the three principles of natural justice, and forms an
important part in defining the constitutionality and fairness of any procedure. The literal
translation of audi alteram partem is hear the other side. In a laymans language it basically
means that both the sides should be given the opportunity to present their case before a
decision is formulated for the case. In the present case, Maneka Gandhi was denied reasons
for the impounding of her passport, which is unfair since every person has the right to know
the grounds on which any executive action is being taken against him/her. Also, she was
never given a chance to present her own case before the authorities.
The principle of audi alteram partem requires that before the final order for the impounding
of her passport was passed, Smt. Maneka Gandhi should have been given a chance to
approach the authorities and to bring to light her part of the story so that the order for
impounding of the passport would have been just. There is always the possibility of arriving at
a one sided conclusion when only one party has been heard and the other is denied that
opportunity. Thus to keep the orders completely objective and free from bias, it is absolutely
imperative that both parties to a situation must be given a chance to put forward their side of
the story.
In the present case, during the Court proceedings itself, the passport authorities ultimately
ceded to the fact that they had been wrong in not providing Smt. Maneka Gandhi a chance to
present her case. Thus, they ultimately agreed to withhold the order and give her a chance to
present her case before the concerned authorities. But what is important to note is that the
authorities had been held wrong in the first place, and only to mitigate the blame had they
accepted to let her present her case. The final change of events prevented them from being
held liable. Otherwise, they were definitely in the wrong and even the Court had held that
their action had been arbitrary and contrary to the principles of natural justice.
3. Section 10(3)(c) not Violative of Article 19(1)(A) and Article 19(1)(g) of the
Constitution
Article 19(1)(a) of the Constitution talks about the freedom of speech and expression
guaranteed to all citizens of the country. Article 19(1)(g), on the other hand, talks about
freedom to carry out any trade and profession. Smt. Maneka Gandhi had alleged that the
order to impound her passport also violates these two rights of hers. She alleged that the
freedom of speech and expression also includes in its ambit the right to travel abroad to
express oneself among the people of other nations. Thus according to her, the freedom of
speech and expression also included the right to go abroad to mingle with people, to carry
out an exchange of ideas, to be able to converse with the people of other nations, and thus to
be able to freely speak and express oneself outside India as well. Now since she had been
denied the right to travel out of India due to the impounding of her passport, she alleged that
her right to freedom of speech and expression had been violated. The same way, she said
that since she was a journalist, it was part of her profession to travel to different parts of the
world, to cover news issues. Thus by denying her the opportunity to travel abroad, the
passport authorities had violated her right of trade and profession.
It was held by the Court that even though the above mentioned contentions were correct and
that such an order would in fact amount to violations of Article 19(1)(a) and 19(1)(g), there
was nothing to prove that Ms. Gandhi was scheduled to travel on an official tour at the time
the impugned order was passed and her passport was impounded. Neither was there
anything to prove that she had some earnest need to travel abroad towards realization of her
right of expression under article 19(1), for eg. Public speaking, dancing, literature, art, etc.
Thus this argument was rejected and the order was not held to be violative of Articles
19(1)(a) and 19(1)(g).
However, the Court did go on to clarify that if at any point of time in the future she was
denied her passport from the government when she needed or wanted to travel abroad to
exercise either of the two rights under 19(1)(a) and 19(1)(g) and the government denied such
rights it would be considered to be an infringement of these two fundamental rights.

4. The order is violative of Article 21 of the Indian Constitution.

In the case of Satwant Singh Sawhney v D. Ramarathnam, Assistant Passport Officer,
Government of India, New Delhi & Ors, the Supreme Court held by a majority judgement that
the expression 'personal liberty' in Article 21 takes in the right of locomotion and travel
abroad, and under Article 21 no person can be deprived of his right to go abroad except
according to the procedure established by law. This decision was accepted by the Parliament
and the infirmity pointed out by it was set right by the enactment of the Passports Act, 1967.
Keeping in mind this right, Smt. Maneka Gandhi alleged that her right to travel abroad had
been violated by the passport authorities. Also, the clause talking about procedure
established by law was contended in that the procedure adopted in this case was arbitrary
and unfair. Maneka Gandhi contested that the procedure in this particular case was violative
of the audi alteram partem rule; it was arbitrary in that she was denied the statement of
reasons for the impounding of her passport; and it was also violative of her fundamental
rights because she was being denied the right to travel abroad under Article 21, without
being given valid reasons for the same.
As far as the procedural discrepancy was concerned, the attorney for the government
accepted the fact that the actions had been arbitrary and hence she was given the chance to
put forward her contentions. Thus that anomaly was taken care of. As far as the question of
her fundamental rights was concerned, it was held that true her fundamental right had been
violated, but it was in the interest of the general public. The Court has adopted a liberal
interpretation of Article 21 in the case, and expanded its ambit by leaps and bounds.
However, the Court has refrained from outrightly commenting on this issue in this particular
case.

OBITER DICTA OF THE CASE

1. Freedom of Speech and Expression {Article 19(1)(a)} is not bound only to the
national territories of India
This was a landmark opinion of the Court and one that was highly celebrated by the entire
country. The Court in the course of this case opined that the right to freedom of speech and
expression, as guaranteed to all the citizens of the country, was limitless in that it had given
to the citizens a vast number of rights irrespective of whether they were in India or abroad.
The Court held that if the Constitution makers had intended this right to be bound by the
territories of the country, then they would have expressly mentioned so as they have done
for various other rights, such as the right to settle down freely, or the right to assemble freely.
However, since no such words had been added at the end of this provision, the Court felt that
it was its duty to give it the widest interpretation possible.
Also, supporting this view was the fact that the Universal Declaration of Human Rights was
adopted by the General Assembly of the United Nations on 10th December, 1948 and most of
the fundamental rights which we find included in Part III were recognised and adopted by the
United Nations as the inalienable rights of man in the Universal Declaration of Human Rights.
This further supported the view of the Court in that even though Indian Courts may not have
jurisdiction outside the territory of India, but these rights as guaranteed by the Indian
Constitution would still be maintained since they were now fortified by the Universal
Declaration of Human Rights which was adopted by almost all the countries around the globe.
Giving this kind of an opinion was a landmark judgement and even though it may not have
the value of a precedent (since it is an obiter), Courts all over the country have adopted this
view of the Supreme Court, and used it in their judgements.
 2. Article 21 is not to be read in isolation; all violations and procedural requirement
under Article 21 are to be tested for Article 14 and Article 19 also.
The Supreme Court in the present case had adopted the widest possible interpretation of the
right to life and personal liberty, guaranteed under Article 21 of the Constitution. Bhagwati, J.
observed:
The expression personal liberty in Article 21 is of widest amplitude and it covers a variety of
rights which go to constitute the personal liberty of man and some of them have raised to the
status of distinct fundamental rights and given additional protection under Article 19.
Also, with respect to the relationship between Article 19 and Article 21, the Court held that
Article 21 is controlled by Article 19, i.e., it must satisfy the requirement of Article 19. The
Court observed:The law must therefore now be settled that Article 21 does not exclude
Article 19 and that even if there is a law prescribing a procedure for depriving a person of
personal liberty, and there is consequently no infringement of the fundamental right conferred
by Article 21 such a law in so far as it abridges or takes away any fundamental right under
Article 19 would have to meet the challenges of that Article. Thus a law depriving a person
of personal liberty has not only to stand the test of Article 21, but it must stand the test
of Article 19 and Article 14 of the Constitution as well.
CONCLUSION
The case is considered a landmark case in that it gave a new and highly varied interpretation
to the meaning of life and personal liberty under Article 21 of the Constitution. Also, it
expanded the horizons of freedom of speech and expression to the effect that the right is no
longer restricted by the territorial boundaries of the country. In fact, it extends to almost the
entire world. Thus the case saw a high degree of judicial activism, and ushered in a new era of
expanding horizons of fundamental rights in general, and Article 21 in particular. 12 He tersely
reminded them:

"Dogs may bark, but the caravan (of justice) passes

Ratlam Municipality Case:

It may also be noticed that there are certain important constitutional provisions which give
the citizens the right to approach the High Courts as well as the Supreme Court of India to
protect their fundamental rights. Article 226 of the Constitution gives the right to citizens to
approach the High Court to enforce their fundamental rights. Article 226 of the Constitution
gives the right to citizens to approach the High Court to enforce their fundamental rights and

12
Saakshi Sharma, A Case Analysis: Of the Maneka Gandhi Case, Lawfarm, (Sept.29, 2017, 2:30 PM),
https://www.lawfarm.in/blogs/a-case-analysis-of-the-maneka-gandhi-case
the High Courts are given the power to issue various writs. Article 32 of the Indian
Constitution could be invoked by the citizens for enforcement of rights conferred by Part III of
the Constitution, namely, the Fundamental Rights. It is also to be noted that Article 21 of the
Constitution guarantees one of the important fundamental right to the citizens and says that
no person shall be deprived of his life right to life contained in Article 21 has been given a
very wide interpretation by the Supreme Court of India. Article 48-A which is one of the
Directive Principles of State Policy states that the State shall endeavour to protect and
improve the environment and to safeguard the forests and wild life of the country. Part IV A
was added to the Constitution by the Constitution (42nd Amendment) Act, 1976 and Article
51-A(g) thereof specifically says that it shall be the duty of every citizen of India to protect
and improve the natural environment including forests, lakes rivers and wild life, and to have
compassion for living creatures.
Till 1980, not much contribution was made by the courts in preserving the environment. One
of the earliest cases which came to the Supreme Court of India was Municipal Council,
Ratlam, vs Vardhichand AIR 1980 SC 1622. Ratlam is a city in the State of Madhya Pradesh in
India. Some of the residents of the municipality filed a complaint before the Sub-Divisional
Magistrate alleging that the municipality is not constructing proper drains and there is stench
and stink caused by the excertion by nearby slum-dwellers and that there was nuisance to the
petitioners. The Sub-Divisional Magistrate directed the municipality to prepare a plan with six
months to remove the nuisance. The order passed by the SDM was approved by the High
Court. The Municipality came in appeal before the Supreme Court of India and contended
that it did not have sufficient funds to carry out the work directed by the SDM. The Supreme
Court of India gave directions to the Municipality to comply with the directions and said that
paucity of funds shall not be a defence to carry out the basic duties by the local
authorities.13The Court also accepted the use of sec. 133 CrPC for removal of public nuisance.
A responsible municipal council constituted for the precise purpose of preserving public
health and providing better finances cannot run away from its principal duty by pleading
financial inability.14

The Supreme Court of India interpreted Article 21 which guarantees the fundamental right to
life and personal liberty, to include the right to a wholesome environment and held that a
litigant may assert his or her right to a healthy environment against the State by a writ
petition to the Supreme Court or a High Court.15Thereafter, series of cases were filled before

13
Yogesh Saxena, Municipal Council Ratlam vs Vardhichand AIR 1980 SC 1622. Stench and stink caused by the
excertion by nearby slum-dwellers, Envionment ecological protection & Climate warming Biodiversity, (sept.30,
2017, 4:00), http://envionmentclimatechanges.blogspot.in/2012/06/municipal-council-ratlam-vs-
vardhichand.html
14
Dr. Amar Nath, Green Decisions: Summary of some Important Judgements, Drama Nath Giri, (sept.30, 2017,
4:39), http://dramarnathgiri.blogspot.in/2012/08/green-decisions-summary-of-some.html
15
Supra note 13
the Supreme Court and there was a dynamic change in the whole approach of the courts in
matters concerning environment.16

Shamsher Singh Case:

For the prosecution of public servants for offences which are fundamentally criminal in
nature, a grant of sanction under Section 197 of the Code of Criminal Procedure is necessary.
This grant of sanction has been accorded to Judges, Magistrates, and Public servants, so that
they can be prevented from frivolous prosecution and in cases where the prosecution of
these persons is not in public interest. Section 197 of Cr.P.C, uses the expression State
Government, the Supreme Court in some cases have considered it to be the Council of
Ministers and that even in cases in which the Statutes use the expression Governor , by way
of process of interpretation the Apex Court has held the expression to be interpreted as the
State Government.

Article 163-- Council of Ministers to aid and advice Governor.

(1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise
the Governor in the exercise of his functions, except in so far as he is by or under this
Constitution required to exercise his functions or any of them in his discretion.
(2) If any question arises whether any matter is or is not a matter as respects which the
Governor is by or under this Constitution required to act in his discretion, the decision of the
Governor in his discretion shall be final, and the validity of anything done by the Governor
shall not be called in question on the ground that he ought or ought not to have acted in his
discretion.

Article 166-- Conduct of business of the Government of a State.

(1) All executive action of the Government of a State shall be expressed to be taken in the
name of the Governor.

(3) The Governor shall make rules for the more convenient transaction of the business of the
Government of the State, and for the allocation among Ministers of the said business in so far
as it is not business with respect to which the Governor is by or under this Constitution
required to act in his discretion.

The Constitution of India envisages a Parliamentary or Cabinet system of Government,

16
Id.
adopted from the British model. Under the Cabinet system of Government the Governor is
the Constitutional or formal head of the State and he exercises all his powers and functions
conferred on him by or under the Constitution on the aid and advice of his Council of
Ministers.

Wherever the Constitution requires the satisfaction of the Governor for the exercise of any
power vested upon him by the mandate of the Constitution, the satisfaction required by the
Constitution is not to be construed as the personal satisfaction of the Governor but is the
satisfaction of the Governor in the constitutional sense under the Cabinet system of
Government. This essentially implies that it is the satisfaction of the Council of Ministers as
conveyed to the Governor, on the basis of which the Governor acts. The legal position has
been unambiguously expostulated in this regard by the apex Court in P. Joseph John v. State
of Travancore-Cochin. The power of the sovereign is conditioned by the practical rule that
the Crown must find advisers to bear responsibility for his action. Those advisers must have
the confidence of the House of Commons. This rule of English constitutional law is
incorporated in our Constitution .The Indian Constitution envisages a parliamentary and
responsible form of Government at the Centre and in the States and not a Presidential form
of Government. The powers of the Governor as the Constitutional head are not different.

The Court opined that the Tribunal concerned in this case had come to a wrong conclusion
that the sanction required under the relevant rule is the sanction of the Governor. In the case
of Shamsher Singh v. State of Punjab Justice K. Iyer put forth a very fundamental question
regarding the bare basics of the Constitution; he posed the question (at 92) that
Does our legal political system approximates to the Westminster style Cabinet Government
or contemplate the President and the Governor, unlike the British Crown being real
repositories of actually exercising power in its comprehensive Constitutional significance?

He observed in the judgment that the President and the Governor are replica of
Constitutional monarch and a Cabinet answerable to the Parliament substantially embodying
the conventions of the British Constitution-not a turn-key project imported from Britain, but
an edifice made in India with the knowhow of British Constitutionalism. The Government is
carried on by the Ministers according to the rules of allocation of business and the Governor
not more than the Queen, merely need know or approve orders issued in his name.

The core of the Westminster System is that the Queen reigns, but the Ministers rule. If the
inner voice of the founding fathers may be any guide it is proved beyond reasonable doubt
that the President and, a fortiori, the Governor enjoy nothing more and nothing less than the
status of constitutional head in a cabinet type Government.
Dr. Ambedkars comprehensive statement introducing the draft Constitution on November
4th 1948, regarding the structure of the Indian polity is:--
Under the Draft Constitution the President occupies the same position as the King under the
English Constitution The President of the Indian Union has no power to do so long as his
Ministers command a majority in Parliament.

The expression required found in Article 163(1) is stated to signify that the Governor can
exercise his discretionary powers only if there is a compelling necessity to do so . The
necessity to exercise such powers may arise from the express provision of the Constitution or
by necessary implication. The Sakaria commission report further adds that such necessity may
arise even from the rule and order made under the Constitution. Baring few exceptions,
wherever the Constitution requires the satisfaction of the President and the Governor, it is
not their personal satisfaction, but the satisfaction of the Council of Ministers on whose aid
and advice, the President or the Governor has to exercise their powers and functions. Neither
of them can exercise the usual Executive function individually or personally.

The area in which the Governor has to act in this discretion is ear-marked , in various
Articles and if the question arises whether the Governor should exercise this discretionary
power in that area, then his decision in that respect attains finality under Article 163(2). It is
not that he can arrogate to himself any executive function of the State and then claim his
decision to be final. That approach would be contrary to the legal position as settled by
Supreme Court in Shamsher Singh. Therefore Article 163(1) does not enable the Governor to
grant sanction for the prosecution in his discretion. Further, Article 163(2) does not attach
finality to the decision of the Governor in such matter. It is outside the preview of Article
163(1) as it is not expressly spelt out in any provision of the Constitution. It is also not
covered by any exception situations as indicated in paragraph 153 in the Shamsher Singh
Judgement. It can therefore be concluded that in absence of any source of power emanating
from specific provision in the Constitution, or any Constitution conventions, it is not possible
for the Courts to concede to the Governor the power to sanction the prosecution of a
Minister.

Therefore, the general rule must prevail and the Governor must act in the sphere as per
advice of the Council of Minister and not contrary to it. If this power is conceded to the
Governor it would open the flood gates for the exercise of the discretionary power of by the
Governor in all cases where the decision of the Council of Ministers is considered inept or
inappropriate by the Governor. That would amount conferring the power of review on the
Governor in respect of the decisions taken by the Council of Ministers which is answerable to
the Legislative Assembly and the people. That would be against the spirit of the Constitution
which has established the Cabinet form of the Government in State also. That would bring
diarchy as indicated in the case of Shamsher Singh.
The interpretation of a provision of the Constitution would not differ or deflect simply
because of the possibility of abuse of power by the Council of Ministers in a given case. The
Constitution has reposed greater faith in the Council of Ministers answerable to the people
and it is expected that it would consider even the question of grant of sanction for
prosecution of its Minister in a detached and dispassionate manner upholding the rule of law
and cause of justice. There is a presumption that the decisions of the Council of Ministers
have been arrived at rightly and regularly and not to shield the guilty. Hence, the Governor if
at all has discretion would be under the Constitution, and not under any Statute.

Therefore the petitioners would like draw the attention of this Honble Court to the
difference between the Constitutional discretion and statutory discretion, and here in the
instant case the question is in relevance to the discretion of the Governor in relation to
Cr.P.C, therefore, the Governor should not have any discretionary power in this matter. 17

Case of Muthamma:
C.B. Muthamma vs. Union of India & Ors 1979 AIR 1868, 1980 (1) 668

HEADNOTE:
The petitioner is a senior member of the Indian Foreign Service and complains that she
had been denied promotion to Grade I of the Indian Foreign Service on the grounds that
(i) there is a long standing practice of hostile discrimination against women (ii) had to give an
undertaking at the time of joining the foreign service that if she were to get married, she
would resign from the service (iii) had to face the consequences of being a woman and thus
suffered discrimination and (iv) the members of the appointment committee of the Union
cabinet and respondent No. 2 are basically prejudiced against women as a group. The
petitioner has further challenged two rules namely rule 8(2) of Indian Foreign Service
(Conduct and Discipline) Rules 1961 and Rule 18(4) of the Indian Foreign Service
(Recruitment, Cadre Seniority and Promotion) Rules 1961, which in short states that
woman member of the service shall obtain permission in writing of the Government before
Marriage and the woman member may be required to resign any time after marriage if the
Government is satisfied that her family and domestic commitments will hamper her duties as
a member of the service and under the second rule no married woman shall be entitled as of
right to be appointed to the service. The petitioner's remaining grievance is that during the
interval of some months between her first evaluation and the second, some officers junior to
her, have gone above her and her career would be affected.

17
Chahat Chawl, Discretionary powers of the Governor in relation to granting sanction for the prosecution of
Public Servants, Legal Services India, (Sept.30, 2017, 5:30 PM), http://www.legalserviceindia.com/article/l438-
Prosecution-of-Public-Servants.html
 Dismissing the petition,
^
HELD: That sex prejudice against the Indian womenhood pervades the service rules even a
third of a century after Freedom. There is some basis for the charge of bias in the rules and
this makes the ominous indifference of the executive to bring about the banishment of
discrimination in the heritage of service rules. If high officials lose hopes of equal justice
under the rules, the legal lot of the little Indian, already priced out of the expensive judicial
market, is best left to guess. This disturbing thought induces the making of a few
observations about the two impugned rules which appear prima facie, discriminatory against
the female of the species in public service and have surprisingly survived so long, presumably,
because servants of Government are afraid to challenge unconstitutional rule making by the
Administration. [669 E-H]
Discrimination against women is found in Rule 8(2). If a woman member shall obtain the
permission of Government before the marriage, the same risk is run by Government if a male
member contracts a marriage. If the family and domestic commitments of a woman member
of the service is likely to come in the way of efficient discharge of duties, a similar situation
may well arise in the case of a male member. In these days of nuclear families,
intercontinental marriages and unconventional behaviour, one fails to under-
669
stand, the naked bias against the gentler of the species. Rule 18(4) is in defiance of Art. 16.
If a married man has a right, a married woman, other things being equal, stands on no worse
footing. Freedom is indivisible, so is justice. That our founding faith enshrined in Art. 14 and
16 should have been tragically ignored vis-a-vis half of India'shumanity, viz., our women is a
sad reflection on the distance between Constitution in the book and Law in action. And if the
Executive as the surrogate of Parliament, makes rules in the teeth of Part III, especially
when high political office, even diplomatic assignment, has been filled by women, the
inference of die-hard allergy to gender parity is inevitable. As Rule 18(4) has been deleted
in November, 1973, and rule 8(2) is on its way to oblivion as its deletion is being gazetted,
there is no need to scrutinize or strike down these rules. The petitioner has, after the
institution of this proceeding, been promoted and where justice has been done, further
probe is otiose. [671B-D, E-G, 672 C]
The Court directed the respondent to review the petitioner's case with particular focus
on seniority vis-a-vis those junior to her who have been promoted in the interval of some
months. It was further impressed upon the respondent the need to overhaul all service rules
to remove the stains of sex discrimination, without waiting for ad-hoc inspiration from Writ
Petitions or gender charity. [672 G-H]

JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 743 of 1979. (Under Article 32 of the
Constitution.) D. P. Singh, L. R. Singh and S. Sahu for the Petitioner.
Soli J. Sorabjee, Solicitor General and Miss A. Subhashini for the Respondent.
The Judgment of the Court was delivered by KRISHNA IYER,J. This writ petition by Miss
Muthamma, a senior member of the Indian Foreign Service, bespeaks a story which makes
one wonder whether Articles 14 and 16 belong to myth or reality. The credibility of
constitutional mandates shall not be shaken by governmental action or inaction but it is the
effect of the grievance of Miss Muthamma that sex prejudice against Indian womanhood
pervades the service rules even a third of a century after Freedom. There is some basis for
the charge of bias in the rules and this makes the ominous indifference of the executive to
bring about the banishment of discrimination in the heritage of service rules. If high officials
lose hopes of equal justice under the rules, the legal lot of the little Indian, already priced out
of the expensive judicial market, is best left to guess. This disturbing thought induces us to
make a few observations about the two impugned rules which appear prima facie,
discriminatory against the female of the species in public service and have surprisingly
survived so long, presumably, because servants of governments are afraid to challenge
unconstitutional rule making by the Administration.
Miss Muthamma, the petitioner complains that she had been denied promotion to Grade I of
the Indian Foreign Service illegally and unconstitutionally. She bewailed that, to quote her
own words;
"....one of the reasons for the petitioner's supersession is the long standing practice of hostile
discrimination against women. Even at the very threshold when the petitioner qualified for
the Union Public Services at the time of her interview, the Chairman of the U.P.S.C. tried to
persuade (dissuade) the petitioner from joining the Foreign Service. On subsequent occasion
he personally informed the Petitioner that he had used his influence as Chairman to give
minimum marks in the viva. As the time of entry into the Foreign Service, the petitioner had
also to give an undertaking that if she were to get married she would resign from the service.
That on numerous occasions the petitioner had to face the consequences of being a woman
and thus suffered discrimination though the Constitution specifically under Article
15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth and Article
14 of the Constitution provides the principles of equality before law........ That members of
the Appointments Committee of the Union Cabinet and the respondent No. 2 are basically
prejudiced against women as a group. The Prime Minister of India has been reported in the
Press as having stated-it will not be irrelevant here to mention that most of the women who
are in the service at senior levels are being very systematically selected for posts which have
traditionally been assigned a very low priority by the Ministry." If a fragment of these
assertions were true, unconstitutionality is writ large in the administrative psyche and
masculine hubris which is the anathema for part III haunts the echelons in the concerned
Ministry. If there be such gender injustice in action, it deserves scrupulous attention from the
summit so as to obliterate such tendency.
What is more manifest as misogynist in the Foreign Service is the persistence of two rules
which have been extracted in the petition. Rule 8(2) of the Indian Foreign Service (Conduct &
Discipline) Rules, 1961, unblushingly reads:
"Rule 8(2) : In cases where sub-rule (1) does not apply, a woman member of the service shall
obtain the per-
mission of the Government in writing before her marriage is solemnized. At any time after the
marriage, a woman member of the Service may be required to resign from service, if the
Government is satisfied that her family and domestic commitments are likely to come in the
way of the due and efficient discharge of her duties as a member of the service."
Discrimination against women, in traumatic transparency, is found in this rule. If a woman
member shall obtain the permission of government before she marries, the same risk is run
by government if a male member contracts a marriage. If the family and domestic
commitments of a woman member of the Service is likely to come in the way of efficient
discharge of duties, a similar situation may well arise in the case of a male member. In these
days of nuclear families, inter-continental marriages and unconventional behaviour, one fails
to understand the naked bias against the gentler of the species. Rule 18 of the Indian Foreign
Service (Recruitment Cadre, Seniority and Promotion) Rules, 1961, run in the same prejudicial
strain:
"(1)............
(2).............
(3).............
(4) No married woman shall be entitled as of right to be appointed to the service."
At the first blush this rule is in defiance of Article
16. If a married man has a right, a married woman, other things being equal, stands on no
worse footing. This misogynous posture is a hangover of the masculine culture of manacling
the weaker sex forgetting how our struggle for national freedom was also a battle against
woman's thraldom. Freedom is indivisible, so is Justice. That our founding faith enshrined in
Articles 14 and 16 should have been tragically ignored vis-a-vis half of India's humanity, viz.,
our women, is a sad reflection on the distance between Constitution in the book and Law in
Action. And if the Executive as the surrogate of Parliament makes rules in the teeth of Part III,
especially when high political office, even diplomatic assignment has been filled by women,
the inference of die-hard allergy to gender parity is inevitable.
We do not mean to universalise or dogmatise that men and women are equal in all
occupations and all situations and do not exclude the need to pragmatise where the
requirements of particular employment, the sensitivities of sex or the peculiarities of societal
sectors or the handicaps of either sex may compel selectivity. But save where the
differentiation is demonstrable, the rule of equality must govern. This creed of our
Constitution has at last told on our governmental mentation, perhaps partly pressured by the
pendency of this very writ petition. In the counter affidavit, it is stated that Rule 18(4)
(referred to earlier) has been deleted on November 12, 1973. And, likewise, the Central
Government's affidavit avers that Rule 8(2) is on its way to oblivion since its deletion is being
gazetted. Better late than never. At any rate, we are relieved of the need to scrutinise or
strike down these rules.
The petitioner has, after the institution of this proceeding, been promoted. Is it a case of post
hoc ergo propter hoc? Where justice has been done, further probe is otiose. The Central
Government states that although the petitioner was not found meritorious enough for
promotion some months ago, she has been found to be good now, has been upgraded and
appointed as Ambassador of India to the Hague, for what it is worth. Her surviving grievance
is only one. During the interval of some months between her first evaluation and the second,
some officers junior to her have gone above her. In the rat race of Indian official life, seniority
appears to be acquiring a religious reverence. Since the career ahead of the petitioner may
well be affected by the factum of prior birth into Grade I of the Service, her grievance turning
on seniority cannot be brushed aside. Her case, with particular focus on seniority, deserves
review vis-a-vis those junior to her who have been promoted in the interval of some months.
The sense of injustice rankles and should be obliterated so that every servant in strategic
position gives of his or her best to the country. We have had the advantage of the presence of
the learned Solicitor-General, appearing for the Union of India. With characteristic fairness he
has persuaded his client to agree to what we regard as a just gesture, viz., that the
Respondent-Union of India will shortly review the seniority of the petitioner, her merit having
been discovered and her seniority to Grade II being recognised. We direct accordingly.
Subject to what we have said above, we do not think it necessary to examine the averments
of mala fides made in the petition. What we do wish to impress upon Government is the need
to overhaul all Service Rules to remove the stain of sex discrimination, without waiting for ad
hoc inspiration from writ petitions or gender charity.

We dismiss the petition but not the problem18

He made bail conditions humane and directed the government to provide free legal-aid to
detainess in prisons facing charges19

"Bail is the rule, and jail, the exception"

He believed in correction and not retribution or vindictiveness in dealing with prisoners. He

recommended that meditation methods of Yoga which he practiced, and which he observed
in the prisons in the Americas and Oceania, could be introduced in the Indian justice system
to help transform not just criminal tendencies in prisoners, but also help judges keep their
mental poise invoking their higher values to have a better judgement of a case at hand.20

18
C. B. Muthamma vs Union Of India & Ors on 17 September, 1979, Indian Kanoon, (Oct.01, 2017, 01:18 PM),
https://indiankanoon.org/doc/1339558/
19
The Many Lives of Justice Krishna Iyer, Indian Express, (Oct.01, 2017, 2:00 PM),
http://www.newindianexpress.com/nation/2014/dec/05/The-Many-Lives-of-Justice-Krishna-Iyer-690513.html
20
V.R. Krishna Iyer, Wandering in Many Worlds: An Auto Biography, 267-268 (2009)
Contribution to the Concept of PIL:

In Indian law, public interest litigation means litigation for the protection of the public
interest. It is litigation introduced in a court of law, not by the aggrieved party but by the
court itself or by any other private party. It is not necessary, for the exercise of the courts
jurisdiction, that the person who is the victim of the violation of his or her right should
personally approach the court. Public interest litigation is the power given to the public by
courts through judicial activism. However, the person filing the petition must prove to the
satisfaction of the court that the petition is being filed for a public interest and not just as a
frivolous litigation by a busy body.
Such cases may occur when the victim does not have the necessary resources to commence
litigation or his freedom to move court has been suppressed or encroached upon. The court
can itself take cognizance of the matter and proceed suo motu or cases can commence on the
petition of any public-spirited individual.21
Origin & Development
PIL had begun in India towards the end of 1970s and came into full bloom in the 80s. Justice
V.R. Krishna Iyer and Justice PN Bhagwati, honourable Judges of Supreme Court of India. They
delivered some landmark judgements which opened up new vistas in PIL. It was Krishna Iyers
judgment in The Mumbai Kamgar Sabha v. Abdulbhai Faizullabhai, which served to forge the
movement towards public interest litigation, which has today achieved a hallowed status.
Where public interest demanded, even Article 226, viewed in wider perspective, may be
amenable to ventilation of collective or common grievances, as distinguished from assertion
of individual rights, he wrote. Public interest is promoted by a spacious construction of
locus standi in our socio-economic circumstances and conceptual latitudinarianism permits
taking liberties with individualization of the right to invoke the higher Courts where the

21
Vineet kothari and Shreshtha Gupta, What is Pil?, Manupatra, (Oct.01, 2017, 03:40 PM),
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=a4a599a3-ee92-41da-aa0b-
b4201b77a8bd&txtsearch=Subject:%20Jurisprudence
remedy is shared by a considerable number, particularly when they are weaker. Less
litigation, consistent with fair process, is the aim of adjectival law.22

The concept of Public Interest Litigation first emerged in USA. The American concept of PIL is
clarified by a statement made by The Council for Public Interest Law an organisation setup
by the Ford Foundation in USA, Public Interest Law is the name that has been given to
efforts to provide legal representations to previously unrepresented groups and interests. Such
groups and interest include the poor, environmentalists, consumers, racial and ethnic
minorities, and others.
However PIL in India substantially differs from that in the USA. Prof: Upendra Baxi in his
published opinion Social Action Litigation in the Supreme Court of India has pointed out
that the prime focus of American PIL was not so much on state repression or governmental
lawlessness as on public participation in governmental decision making. And since the Indian
notion of PIL has assumed the character of more of a moral and humane process in providing
justice to the victim as in individual or to a group in matters relating to infringement of
fundamental rights or denial of civil privileges on the basis of caste, color or creed, Prof. Baxi,
therefore, insisted that the Indian phenomenon described as PIL should be termed as Social
Action Litigation.23

There was a complete deprivation of civil and political rights. In such a situation the courts
remained lions under the throne. It was only during the post- emergency that it tried to
revamp its negative image of the emergency period. In this regard it would be appropriate to
quote Cunningham Indian PIL might rather be a Phoenix: a whole new creative arising out
of the ashes of the old order. 24

PIL represents the first attempt by a developing common law country to break away from
legal imperialism perpetuated for centuries. It contests the assumption that the most western
the law, the better it must work for economic and social development such law produced in
developing states, including India, was the development of under develop men. The shift
from legal centralism to legal pluralism was prompted by the disillusionment with formal
legal system. In India, however instead of seeking to evolve justice- dispensing mechanism
ousted the formal legal system itself through PIL. The change as we have seen, are both
substantial and structural. It has radically altered the traditional judicial role so as to enable
the court to bring justice within the reach of the common man. Further, it is humbly
submitted that PIL is still is in experimental stage. Many deficiencies in handling the kind of
litigation are likely to come on the front. But these deficiencies can be removed by innovating

22
Suhrith Parthasarathy, A revolutionary judge who gave new meaning to the Constitution V.R. Krishna Iyer
(1914-2014), My Law, (Oct.01, 2017, 03:44 PM), http://blog.mylaw.net/a-revolutionary-judge-who-gave-new-
meaning-to-the-constitution-v-r-krishna-iyer-1914-2014/
23
Nikhil Jain, Importance of Public Interest Litigation in India, Law octopus, (Oct.01, 2017, 03:53 PM),
https://www.lawctopus.com/academike/importance-public-interest-litigation-india/
24
Swapna Deka Mandrinath, Judicial Activism in Post-Emergency Era, (2015)
better techniques. In essence, the PIL develops a new jurisprudence of the accountability of
the state for constitutional and legal violations adversely affecting the interests of the weaker
elements in the community.25

Conclusion and Suggestions:

He was the man of firm believer of Rule of Law, considering it to be the law above all laws.
He was always against the retribution or vindication and supporter of correction in dealing
with the prisoners. Though his tenure in Supreme Court was short but he had a great impact
over not only the judicial system but also on the society at large. He attended many
meetings, wrote many books. He was there for all the people throughout his life. With his
retirement on 14 November, 1980 his marks on the bench didnt wash away. After his
retirement he remained as tireless advocate of peoples rights and their cause. He earned a
name for the Justice system. His death on 4th December 2014 was not an end of one
persons life but it was an end of an era. In his last days of his life he wanted to bring a major
change in system, to reform the best foreign judicial system with our own traditional judicial
doctrines simultaneously.

He would remain as the only Judge in India who is hailed as Bhishma Pitamah of Indian
judiciary for a long time to come and I would like to call him as Mahatma of Indian
Judiciary. Though he left us, the values and ideals he stood for will continue to be our
guiding principles in administration of justice as well as in making the justice accessible to
citizens of our country.26

I suggest to follow the path of justice, activism and many other valued reforms that Justice
VR Krishna Iyer layed down.

25
Jain, supra note 23
26
Supra note 5