HISTORY OF THE

HIGH COURT OF KERALA

Thesis submitted to the University of Kerala
for the award of the Degree of Doctor of Philosophy
in History





by
Harikrishnan,S.




Department of History
University of Kerala
Kariavattom
Thiruvananthapuram
2010


1


DECLARATION

I hereby declare that the Ph.D thesis entitled History of the High Court of Kerala is
an independent work carried out by me and it has not been submitted anywhere else
for any other degree, diploma or title.


Kariavattom Harikrishnan,S.
















2


CERTIFICATE

This is to certify that the work embodied in the thesis entitled History of the High
Court of Kerala has been carried out by Harikrishnan,S. under my supervision and
guidance.




Dr. S. Jaseem,
Reader in History,
Institute of Distance Education,
University of Kerala,
Thiruvananthapuram.










3


ACKNOWLEDGEMENT

I consider it a privilege to express my sincere gratitude to my Research Guide, Dr.
S. Jaseem, Reader in History, Institute of Distance Education, University of Kerala, for
her guidance which made this thesis a reality. I am thankful to Smt. P. Vasumathy
Devi, Head of the Department of History, and Dr. V. Sathish, Selection Grade Lecturer,
Department of History, for their valuable and timely advice. I also owe my debt of
gratitude to Dr. B. Sobhanan, formerly Professor and Head, Department of History, for
his help in this endeavor.

I do express my sincere thanks to Shri. M. Gopikuttan Nair, Librarian,
Department of History, for his wholehearted support. I also thank the Librarians and
staff members of the Kerala University Library, the Kerala Legislative Assembly, the
State Central Library, the Directorate of State Archives, and the Central Archives,
Thiruvananthapuram. I further acknowledge the assistance of the Librarian of the
School of Legal Studies, Cochin University of Science and Technology. I am indebted
to my friends for their esteemed help and encouragement. I express my heartfelt
thanks to my parents for continuously aiding my efforts with patience. I am also
thankful to Technoworld, Kumarapuram, for their help in completing the work.


4


PREFACE


The thesis entitled, The History of the High Court of Kerala, is an attempt to throw light
on the development of the High Court of Kerala and its contributions in the legal realm.
As a hitherto untouched topic, it deserves the attention of historians and scholars on
Kerala. The origins of administration of justice could well be traced back to the ancient
period. However, the introduction of English laws and concepts led to far reaching
changes in the arena of dispensation of justice. This paradigm shift could justly be
considered as an essential prerequisite in facilitating our march towards modernity.
The ideas such as the rule of law and the differentiation of the judiciary from the other
branches of the government, gained ground in the minds of the people. A forum for
questioning the acts of the executive was a welcome change in the body-politic of the
erstwhile princely states. The judgements of the High Court rightly form the fruits of its
labour. They are the end-products of numerous judicial exertions. These have been
analyzed by utilizing various sources, both primary and secondary. Legislative
enactments which consolidated the authority of the judicial establishment have also
been discussed diligently.



5

CONTENTS
PREFACE
CONTENTS
ABBREVATIONS
INTRODUCTION 1
CHAPTERS
1. THE HISTORICAL BACKGROUND 14
2. THE HIGH COURT OF TRAVANCORE-COCHIN 57
3. THE HIGH COURT OF KERALA 114
4. NOTABLE CASES IN THE CONSTITUTIONAL REALM 157
5. LANDMARK CASES IN THE RELIGIOUS REALM 195
CONCLUSION 260
LIST OF PUBLICATIONS
LIST OF TABLES
APPENDICES
GLOSSARY
BIBLIOGRAPHY

6

ABBREVATIONS

AICC - All India Congress Committee
AS Appeal Suit
CMP - Civil Miscellaneous Petition
CPI - Communist Party of India
CPI (M) - Communist Party of India (Marxist)
CRP Civil Revision Petition
ICS Indian Civil Service
INC Indian National Congress
MISA Maintenance of Internal Security Act
NDP National Democratic Party
NHRC National Human Rights Commission
PSP Praja Socialist Party
RSP Revolutionary Socialist Party
SA Second Appeal
TTNC Travancore Tamil Nad Congress
7
1


INTRODUCTION


The thesis entitled, History of the High Court of Kerala, offers an insight into the
evolution and working of the apex court of the linguistic entity of Kerala. It is a
relatively unexplored area. Kerala High Court is widely acknowledged to have made
immense contributions towards strengthening the constitutional fabric of India.
Outstanding judgements had no doubt given an impetus to legal thinking. The
achievements of any court depend on the caliber and outlook of its judges. The early
beginnings of modern judiciary in the erstwhile principalities of Travancore and Cochin
have also found place in the narrative. The High Courts of these erstwhile principalities
were truly supreme because they were the ultimate courts of appeal in their respective
realms and their decisions were final. This situation underwent a sea change after the
formation of the Union of India. Princely States were amalgamated into the body-politic
of the national life of independent India. The High Court of the United State of
Travancore-Cochin was the immediate predecessor of the High Court of Kerala. The
realm of administration of justice existed even during the days of dictatorial
monarchies. However, instead of being a distinct branch of government, it was the
executive officers themselves who played their judicial roles. Such acts of
administering justice were considered to be a serious responsibility vested in the
8
2

officers of the State. Matters continued in such a fashion until the Indian rulers had
their sovereignty intact. English institutions were gradually assimilated and naturalized.

The formation of the United State of Travancore-Cochin was the prelude to the
linguistic Kerala State. The hastily executed union of the two erstwhile principalities
more or less carried the message that the said act was more due to the compulsion of
the Central Government than due to any local initiative. In the process the two former
kingdoms were relegated to the pages of history. The element of political mistrust soon
overtook the goodwill generated by popular elections and responsible governments.
The regimes communal affinity became a subject of much criticism and the editor who
dared to do so earned the wrath of the rulers. The measures inflicted on this account
were challenged in the High Court. The fiscal policy of the State became a cause for
another legal confrontation. The authorities sought to ameliorate the ever increasing
fiscal deficit by resorting to newer avenues of taxation. The rising governmental
expenditure led to the State hunt for funds, which were mostly met by burdening the
honest tax payer. When faced with questions over its authority to issue prerogative
writs, the High Court affirmed its power to act positively in this regard. The continuity of
the office of the Chief Justice irrespective of the change in its personnel was asserted
by the High Court. The Court also did not hesitate to declare that judicial tenure was
different from any other employment under the State. Similarly, subordinate judges
were told to observe propriety by refraining from going beyond the necessities of the
cases under their consideration. Remarks in bad taste were told to be unworthy of
being part of judgements. The High Court witnessed the fallout of political antagonism
9
3

resulting in the petition against the Speaker of the State Legislature, accusing him of
unlawful usurpation of office. The Legislative Assembly witnessed a dramatic clash of
regional aspirations. The scene was dominated by eminent statesmen like P.S.
Nataraja Pillai, Pattom Thanu Pillai and Panampilly Govinda Menon. Tumultuous
events in the political spectrum spilled over to the judicial arena. The cases related to
the Tamil partisans are very much noticeable.

The States Reorganization Act paved the way for the formation of linguistic States.
The predecessor of Kerala, the United State of Travancore-Cochin had come under
the Presidents rule towards the end of its lifespan. As a result, the States
Reorganization Act and its implications did not get the required attention of the public
realm in Kerala, which was under the Presidents rule from the moment of its
formation. On the contrary, the then Madras State had its own elected regime during
this decisive phase. There were changes in the composition of the services. The
Kerala High Court from its very inception possessed a full-fledged Bench at the capital
city of Kerala. The first Government of Kerala performed the task of enacting a unified
legislation pertaining to the High Court and its jurisdiction. The legislative activism
displayed by V.R. Krishna Iyer and the near unanimity of views of the Union and the
State on the matter of official language policy were positive signs. However, the
Central Government refused to override the wishes of the High Court, regarding the
latters bifurcation. Eminent jurists, who adorned the Kerala High Court, earned the
respect and adoration of the whole of India. They contributed a lot in instilling
10
4

confidence in the minds of the people, regarding the virtues of the Constitution and the
law.

The constitutional cases settled by the Kerala High Court gives ample proof of the
sharpness and wisdom of the judges. The statutes enacted by the legislature, were
subjected to a close analysis. The executive actions too came under judicial scrutiny.
The High Court ensured that the State continued to honour its commitments and
liabilities irrespective of the changes in the form of government. This indeed was a
step in the direction of guaranteeing civil order and contentment. That the Chief
Minister himself was not spared by the High Court, itself makes it clear that a person,
no matter how powerful, could be subjected to the will of the highest judicial forum.
The sensibility and sensitivity shown while considering certain cases is worthy of
appreciation. The gesture of the High Court of respecting the judgements of foreign
law courts raised the prestige of the judicial system of India, in general and that of
Kerala, in particular. The concern for the life and liberty of citizens has imparted an
aura of sanctity to the High Court of Kerala.

The alienation of the assets of Hindu religious institutions was the direct result of the
enslavement of native polity to the wishes of the English East India Company. The
ownership of the temples themselves was usurped by the princely states at the behest
of their alien overlords. Later, the princes themselves became convinced of their
monumental crime and for the sake of repentance, took some initiatives to
compensate the temples for the deprivation of their valuable property. The affairs of
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5

the temples remained to be a closely guarded preserve of the rulers of Travancore and
Cochin. With the end of the monarchy, new problems which were not at all anticipated
came to the fore. The erstwhile royal rulers, being Hindu by religion, had accorded top
priority to the administration of temples. But with the advent of popular legislature, the
realm of Devaswom became subject to the whims of political requirements. The
worshippers did not get any stake in the management of temples. This resulted in the
ironic situation wherein an avowed secular state and its officers enforced their will on
the religious institutions of a particular faith. It could well be termed as a mockery of
the preamble. The vicissitudes in the political spectrum came to be reflected in the
administration of temples. Numerous cases related to the Devaswoms consumed the
attention of the High Court. Some of the judgements made in this regard helped to
enforce transparency in the system. Instances of highhandedness by the State were
severely criticized. The High Court acted only on issues which were brought before its
consideration by the vigilant citizens.

Judiciary is the least popular organ of the State. This does not mean that it is
unpopular. The Executive and the Legislature often feel compelled to reflect and at
times even anticipate the will of the people. The judicial forums generally do not
entertain such concerns. Judges enjoy awesome power and they could not be
penalized for their judicial acts even after their retirement from service. Such
preferential treatment is in stark contrast to the situation with regard to other public
servants. A citizen can freely criticize the President, the Prime Minister and the civil
servants for any of their actions, without having any fear of the likelihood of being
12
6

prosecuted on this count. On the contrary, the criticism of the courts, the judges or
their judgements could readily attract the provisions regarding the contempt of courts.
This remains to be a weapon to silence critics.

Methodology
The present work has been modeled on the pattern of a historical narrative. Factual
details have been presented chronologically. A sequential style has also been followed
in the thesis. The High Court forms the nucleus of the thesis and all other matters are
discussed in relation to it.

Hypothesis
1. The Kerala High Court is the rightful inheritor of the legacy of the High Courts of
the erstwhile principalities of Travancore and Cochin.
2. Some of the judgments delivered by the Kerala High Court are indeed models
for posterity. The letter of the law was implemented only after an exhaustive
verification of all the relevant statutes.
3. The High Court has remained as the watchdog of freedom and liberty. The
freedom of the individual has received the highest consideration of the Court.
4. The attitude of the High Court, in its totality, presents a paradox. The sense of
righteousness displayed by the Court towards aggrieved individuals remains
absent while dealing with popular issues, which are actually on a higher plane
13
7

than that of the individual concerns, such as the demand for a Bench of the
High Court in the Capital city of Kerala and the issue of replacing English with
Malayalam, as the language of the courts.

Review of Sources
Primary sources such as Legislative Proceedings, Government Gazettes, Orders,
Acts, Ordinances etc pertaining to Travancore, Cochin, United State of Travancore-
Cochin and Kerala, were intensely examined. Enquiry Reports too, have been utilized.
The Report of the Devaswom Seperation Committee was authored by
Ananthanarayana Aiyar. It had served to effect the separation of the Devaswom from
the Revenue Department of the Travancore State, in 1921. The Report of the Buch
Committee, actually called the Integration Committee, deals with the matters
pertaining to the integration of Travancore and Cochin in 1949, which resulted in the
formation of the United State of Travancore-Cochin. This Report was crafted by N.M.
Buch I.C.S, along with Panampilly Govinda Menon and V.O. Markose. The Covenant
of 1949 was the founding document of the United State of Travancore-Cochin. It was
signed by the Maharaja of Travancore and his Cochin counterpart with the consent
and concurrence of the Dominion Government of India. The Report of the High Level
Committee for Unification of Laws relating to Hindu Religious Institutions and
Endowments, of 1964, is a commendable work done by K. Kuttikrishna Menon, the
former Advocate General of Madras. It went into the feasibility of having a single
unified system for administering Hindu temples and endowments throughout Kerala.
The Kerala Devaswom Administrative Reforms Commission Report was authored by
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8

K.P. Sankaran Nair in 1984. It gave clear suggestions for actively empowering the
devotees in the management of temples. The author had worked as Law Officer in the
Travancore Devaswom Board for a decade. The Justice K.K. Narendran Committee
Report of 1987 enquired into the matters related to imposition of Malayalam as the
language of the Kerala High Court and the subordinate judiciary.

Works on constitutional history by A.B. Keith, B.B. Misra, S.R. Sharma and others,
were consulted. Indian Constitutional Documents by P. Mukherji and Shorter
Constitution of India by Durga Das Basu, were very useful. The latter is of a
monumental nature and is of great utility for all those who deal with the Constitution
and the law. Travancore State Manual, written by both V. Nagam Aiya and T.K. Velu
Pillai and Cochin State Manual by C. Achuta Menon, were unavoidable; these works
which were sponsored by the then princely regimes are the official version of events.
Politicians and accomplished personalities have very often written about their career
and achievements. Strange as it seems to be, only a handful of judges have written
their memoirs. Erskine Perrys Cases Illustrative of Oriental Life which pertains to the
work of the Supreme Court of Bombay in the 19
th
century was a valuable work; it
throws light on the days when codification of laws had not yet happened. The author
himself was a Chief justice of the Supreme Court of Bombay. Likewise, The Federal
Court of India authored by eminent political scientist M.V. Pylee, was of much help in
the preparation of the present thesis, as a veritable pathfinder. The Legal Profession in
Colonial South India authored by John.J. Paul is a monumental study of its kind,
dealing with the Madras Presidency. The legal profession as such and professional
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9

associations have been neatly dealt with in the said book. The author of the book was
fortunate enough to be the very first individual who was allowed by the Madras High
Court to consult the latters files and documents. Likewise, a similar work on the
judiciary of Bombay is P.B. Vachhas Famous Judges, Lawyers and Cases of Bombay.
Interesting facts regarding eminent jurists and lawyers, who adorned the Bench and
the Bar, are present in it. The trial of Tilak and Gandhi and the Nasik Conspiracy Case
are some of the many incidents told in the book, which was published on the occasion
of the Centenary of the Bombay High Court, in 1962. The book was written at the
request of the then Chief Justice of the Bombay High Court and voluminous files and
documents possessed by the High Court were placed at the authors disposal. The
poignant account of the struggle for justice waged by Eachara Varier against the
murder of his son Rajan, is vividly told in the book entitled, Memories of a father. It is
a throws light on the dark days of the National Emergency, when the people were at
the mercy of the ruthless autocracy. The Librarian of the Kerala High Court frankly
admitted to the absence of material pertaining to the present thesis, in the High Court.
The Kerala Law Times, proved very useful for the construction of the thesis.
Judgements of the High Court along with arguments presented by counsels were
immensely valuable. Newspapers namely, The Hindu, The New Indian Express,
Mathrubhumi and Malayala Manorama also provided rich information especially
regarding the events connected with the High Court Bench and the controversies
surrounding it.


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Chapterisation
The thesis consists of five chapters excluding an introduction and a conclusion. The
first chapter is entitled, The Historical Background. As the name goes, the chapter
throws light on the practices pertaining to judiciary as told in early Indian scriptures.
The unique position enjoyed by the king is noticeable as he was the fountainhead of
not only the judicial branch but also the executive and legislative realms of the State.
Decisions of the monarch were at times arbitrary ones and the possibility of revision
was almost non-existent. Grievances were mostly heard and decided at the local level.
Responsible authorities presided over the dispensation of justice within their
immediate locales. The phenomenon of appeal, as such, was more or less rare in
those days. The advent of British supremacy sowed the seeds of change. The
germination and naturalization of English institutions took place in the three
Presidencies- Bengal, Madras and Bombay. Gradually, the East India Company
transformed itself from being a commercial enterprise into a political power. They soon
began to exercise sovereignty over their territorial possessions in India. Political and
strategic advantages added to their strength. The impact of the British paramouncy
was felt by the Indian States and the latter were relegated to the background. Indian
princes simply failed to anticipate the conquest of India by the British.

The second chapter is named, The High Court of Travancore-Cochin. It deals with the
emergence of the United State of Travancore-Cochin, which was a direct result of the
centralized plan to liquidate princely states. This had led to the integration of all
branches of government of these two principalities. As a result, the High Court of the
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United State of Travancore-Cochin came into being. The location of the High Court,
the arbitrary shifting of the Law College and the demands for bifurcation of the High
Court became emotional issues. The State Government became involved in litigations
pertaining to its policies. The appointment of the Chief Justice and the election of the
Speaker of the Legislature were challenged in the course of litigations in the High
Court. Parochial concerns and vested interests sought to undermine and even
frustrate popular aspirations. The High Court handled cases related to the violent
agitation launched in demand for the separation of Tamil areas from the State. The
scenario was one of interplay of the forces of regionalism. Political instability coupled
with the absence of an assertive leadership, plagued the nascent State. The fanatic
opposition of the High Court towards the demand for a Bench of the High Court at the
State capital, and the inability of the legislators to act in unison, were vivid scenes of
those days.

The third chapter called, The Kerala High Court. It is concerned with the work of the
High Court of Kerala. The abrogation of the Bench at the State capital amounted to
nothing less than a judicial misdemeanor. The Bench had fulfilled the genuine need of
the people for easy accessibility to the highest court of the State. The positive
initiatives of the State Government and the State Legislature, in this regard, were
indeed appreciable. But the relevant statute was a formidable impediment. The Union
Government did not show much enthusiasm. Similarly, subsequent regimes in Kerala
did not pay their attention towards this matter. Belated efforts were invariably futile. In
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12

a sense the High Court obstructed the implementation of the official language policy of
the State in the judicial machinery.

The fourth chapter is called, Notable Cases in the Constitutional Realm. It discusses
the most notable cases adjudged by the Kerala High Court in the constitutional realm.
The questions concerning the validity of the High Court Act, the liability of the
successor state with regard to liabilities of its predecessor were raised during the early
years. The constitutional provisions for legislators and the law of contempt of court
also were subjected to the scrutiny of the High Court. The sensitive case of dispute on
the guardianship of minor children had international ramifications. The verdict in the
infamous Rajan case threw light on the brutality displayed by Police during the days
of the National Emergency.

The fifth chapter is titled, Landmark Cases in the Religious Realm. It deals with the
origin and growth of state control over Hindu Temples. For the kings of Travancore
and Cochin, it was in their personal domain to handle matters pertaining to Hindu
Temples. This power was passed on to the elected regimes, on the eve of the abolition
of kingship. However, the temples of Malabar were free from the menace of
governmental usurpation; their trustees were to comply with the relevant rules
regarding their accounts. Indeed, the rulers of Travancore and Cochin could never
escape from the sin of having usurped the assets of Temples, that too, in an arbitrary
manner. The tripartite accord called the Covenant gave birth to the two Devaswom
Boards, which were to be more or less having autonomy. Unfortunately, there have
19
13

been instances of maladministration in these statutory bodies. Already, the changes
effected by various legislations on land tenure, had adversely affected the financial
position of the temples. With their near virtual nationalization, temples became a milch
cow for the Government and its collaborators. A plethora of cases pertaining to the
various aspects of Hindu religious institutions were decided by the High Court. Issues
such as the ownership of shrines, mandatory qualifications for the temple
administrators, transparency in financial matters, priesthood etc gained the attention of
the Court.
















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CHAPTER-1
THE HISTORICAL BACKGROUND


The richness of Indian culture was reflected in the social and political institutions
designed and practiced ancient India. The judicial system of those days is no
exception to this general rule. The Brihadaranyaka Upanishad says that law is the king
of kings and that nothing was higher than law. Dharma or law was based on truth and
justice. Law reflected the interests of the human society, the individual and social
welfare. Law encouraged obedience by reward and discouraged disobedience by
punishment.
1
Apastamba's Dharmasutra reveals that the King had the authority to rule
and punish. According to Kautilya, Varuna was the moral judge par excellence and
that the King was also like Varuna. As the custodian of law, the King was to administer
law impartially.

Apastamba's Dharmasutra advocates that none shall be punished in
case of doubt. This has its modern counterpart in criminal jurisprudence that the
benefit of doubt should go to the accused. It was the duty of the King to protect those
who suffer from want in his kingdom and to guard against theft. Civil and criminal laws
find their exposition in the Arthasastra. The four ways to settle disputes were by
dharma, vyavahara, caritra or custom, and raja sasanam or royal proclamation.
2


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The sources of law, according to the Dharmasastras were the sruthi, smriti, nyaya and
sadacara. The King was known as the dharma pravartaka or the enforcer of laws.
Whenever there was a conflict of laws, the application of yukti (logical reasoning) was
made. Kautilya says that the judge is given the opportunity to build up new legal
sentences outside and even contrary to the sacred law. The King's power was more
judicial than legislative. He administered law by establishing civil courts called
Dharmasthiya and criminal courts known as Kantakasodhana. Gautama and Manu
were of the view that the King must know law from competent sources. In his absence,
one who is learned in the sastras could work as an alternative administrator of justice.
Such a person was called as the pradvivaka. Manu and Yajnavalkya enjoin that the
King should render justice with the members of the sabha. Jury system prevailed in
ancient India. The Vyavaharaprakasa and Jaiminisutra opine that majority opinion was
to prevail in a jury. Manu speaks of a court of justice having four judges. Kautilya
supports the contention of Manu that the number of jurors should be uneven for the
sake of getting a quick decision in case of difference of opinion.
3

Brhaspati mentions four types of courts. They were the court in the town, a circuit
court, a judge empowered to use the seal of the King and the court presided by the
King himself. The ten limbs of the court were the King, the chief judge, the sabyas, the
smriti, the ganaka or the accountant, the lekhaka or the scribe, gold, fire, water and
swapurusa, who was a bailiff. The court of justice presided by the King was called the
dharmasana. The King's court was known to Bana as the rajakulam. Kalhana views
the King to be the highest court of appeal. The fourth Rock Edict of Asoka speaks of
22
16

the mahamatras and rajukas who functioned as judges.
4
No one, not even a relation of
the king could avoid punishment if he was guilty of an offence. If persons of a
responsible position and social status and officers in administration committed an
offence, they had to suffer punishment higher than that of an ordinary citizen
committing the same offence. The principle followed was that, greater the position and
authority, the greater were behaviour expected.
5
Kings and judges constituted courts
wherever they went, thus becoming accessible to the public.
6


Legal institutions are mentioned in the Sangam works. The King was deemed to be
the source of justice. He meted out justice with the help of such men as he thought fit
for the job. Law courts existed in both urban and rural areas. The King directly
oversaw the administration of justice in the capital city. Orders of punishment or
acquittal arising out of litigation were duly carried out. Sangam texts reveal the
simplicity of the judicial system. Royal proclamations were made public by beat of
drum. This informed the citizens about the wishes and intensions of the monarch. The
avai of the capital city and the manram of the villages served as institutions for
imparting justice. Royal palaces too, were known for their spirit of legal parity and
social justice. Considerable attention was accorded to the bell of justice. The
Thiruttandar Puranan and the Silppadikaram speak of Manu Nitikandacholan, who on
finding his son guilty of cow-slaughter sentenced him to death. The King was apprised
of the guilt of his son by way of ringing the bell of justice. The Silappadikaram also
alludes to such a bell being present at the entrance of the palace of the Pandyan ruler,
Nedunjelian. When the royal court assembled for judicial purposes, it was called
23
17

arakkalam or dharmasanam. The judicial advisors were known collectively as arankuru
avaiyam or arakkalattu andanar.
7

Judicial advisors were expected to have legal acumen or aram, a sense of fairness or
semmmai, and a kindly and charitable disposition called tanmai. Men of law and
justice debated or pleaded before the King, who acted as the final arbitration authority.
Much stress was laid of the virtue of impartiality. The King was known to have passed
judicial orders without consulting the avai. The suit was called kurai and the justice
meted out was called murai. The witness was called a kariyan and a piece of evidence
was known as kari. The Ahananuru shows the general belief that age and experience
was necessary qualification for judges. Nachinarkkiniyar praised Karikala Chola for
having tried cases to the satisfaction of one and all, despite being younger than the
jurists of the avai. If the King ignored his advisors or rejected their advice, there was
no formal or constitutional remedy. When Nedunjelian ordered the execution of
Kovalan, there was neither trial nor judgement, neither consultation nor advice. It was
simply an arbitrary order.
8

The Kural also deals with royal justice when it speaks of senkonmai or righteous
government. It was told that the King must be easily accessible to those who seek his
justice and that he must take pains to study their case and render justice accordingly.
A King who fails to do so was severely condemned. Trial by ordeal was resorted to, in
both civil and criminal cases. Non-payment of land revenue and taxes were
considered as civil offences. Those who wanted relief had to pray for it. Offences like
24
18

failure to hand over treasure troves to the King were punished with imprisonment.
Espionage and treason were considered to be fit cases for awarding capital
punishment. Cruel methods were often employed as elicited by Sangam works. Even
suspected criminals had to face it. The Chola King Killivalavan ordered the two
children his enemy Malaiyaman to be trampled upon by elephants and this execution
was arranged at a place near the manram. Condemned criminals were compelled to
perform forced labour. The Periplus says that pearl fisheries were worked by
condemned criminals.
9

The punishments like imprisonment and other inflictions were more punitive than
reformatory. It was believed that there was nothing wrong in the King punishing his
offending subjects for the Kural had proclaimed that it was only like removing the
weeds from a flourishing crop field. Punishing evil doers for protecting the subjects
was not a stigma but a duty of the King. It was proper for a ruler to punish the guilty
according to the magnitude and nature of the guilt. The prisoners were kept in chains.
The prison guards were specially instructed to be insolent and offensive in their
behaviour towards the inmates. Amnesty for prisoners was ordered during selective
occasions like the Kings birthday. Sometimes revenue remissions were also granted,
wholly or partially.
10
But such remissions took place only during handful of instances.



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The British India
The English East India Company was vigilant enough to protect its interests. Their
factories had an appropriate organization for their work. They were run by Factors who
were in turn organized under a President and Council. There were three such
Presidents and Councils. They sat as judicial courts in dealing with their subjects. The
exercise of some judicial functions did not exalt these Presidencies into
administrations. The native authority was always there, alive.
11
The English East India
Company introduced itself in Bengal through the construction and settlement of its
factories, each of which formed an autonomous unit of administration. In 1633, two
factories were established at Hariharpur and Balasore. The factories of Hugli and
Kasimbazar were built in 1651 and 1658, respectively. By 1676, Patna and Dacca, too
began to have English factories.
12

An independent agency of Bengal was constituted in 1681, with William Hedges as its
first Governor. But, due to the set back in the Anglo-Mughal rupture in 1686, it was
once again made subordinate to Fort St. George. With the formation of an
independent Presidency of Fort William in 1699, Sir Charles Eyre was appointed its
first President. In 1696, Ibrahim Khan, the then Governor of Bengal, gave a general
permission to foreigners to provide for their own means of defense. As a result, the
English laid the foundation of Fort William, which later became the nerve center of
their power. However, their acquisition of the three villages of Sutanauti, Govindpur
and Kalighata, in 1698, gave them a legal foothold in the province of Bengal. They
were purchased under the Mughal revenue laws by which, the English East India
26
20

Company obtained the rights of collecting land revenue from ryots, and imposing petty
taxes, duties and fines. In 1717, they secured the grant of thirty-eight more villages
from the then reigning Mughal monarch, Farrukh Siyar. However, on account of the
opposition from the then Nawab, Murshid Quli Khan, the grant lay in abeyance till the
triumph at Plassey. In 1661, the Governors and Councils in India were vested with the
power to exercise, within the limits of their settlements, civil and criminal jurisdiction
according to the English laws. The President and Council at Fort St. George in Madras
were constituted into a regular Court of Admiralty, which also served as a general
court of judicature for the settlement of Madras.
13

The Charter of August, 1683, made an important provision regarding the judicial
administration of the English East India Company. It provided for the establishment of
a Court of Judicature consisting of a person learned in civil law and two assistants
appointed by the Company. The Court was to determine cases of forfeiture of ships or
goods for trading contrary to the Charter, in addition to mercantile and marine cases
concerning persons. Cases of trespass, injury and wrongs done on the high seas were
also handled by the new court. The judicial provisions of the charter of 1683 were
reiterated by the Charter of 12 April, 1686, with some modifications. An important
innovation was made. The Company was permitted to extend constitutional
government to its Indian territories by the establishment of a municipal constitution for
Madras. It signaled the development of the territorial character of the Company's rule
in that important part of India. On 11 December, 1687, the King of England authorized
the Company to act in this regard.
14
27
21


By the Charter of 27 March, 1668, Charles II transferred the island of Bombay to the
English East India Company for an annual rent of ten pounds. The Company was
accorded full sovereign rights over the territory and the inhabitants of the island as well
as the servants of the Company. Thus the English Company was empowered to make
laws, orders, ordinances and constitutions for the good government of the port and
island and its inhabitants. They were also given the power to exercise judicial
authority. The Company got legislative and judicial authority and it was required that
their laws should be consonant to reason and not repugnant or contrary to the laws of
England. Moreover, they were to be as near as may be agreeable to such laws and
the courts and their proceedings were to be like those used and established in
England.
15

After July, 1669, the Company enforced laws which were enacted under the Charter
for the Government of Bombay. The first section of the new set of laws dealt with
religious observances. The second section was about the administration of justice. It
laid down the principle of trial and conviction by a jury of twelve men before deprivation
of rights or the infliction of corporal punishment, and forbade commitment to prison
without specific warrants. Section 3 provided for the establishment of a Court of
Judicature for deciding suits in criminal matters under a judge appointed by the
Governor and Council. Trials were to be by a jury of twelve Englishmen. If one party to
the dispute happened to be non-English, half of the jury was to be non-English. A right
of appeal was provided against the decisions of this court to the Governor and
28
22

Council. The Charter of 1698 effected changes in the judiciary. By then, the Company
faced considerable trouble due to the lack of fully organized judiciaries in its
settlements. Local councils were authorized to take possession of the assets of
deceased servants and to dispose of them for cash for the benefit of their heirs.
However, difficulties arose from this practice, too often.
16

Criminal jurisdiction was exercised monthly in general sessions. Juries were used for
major offences, but minor infractions against religion and morals were punished
without jury trial. Capital sentences were considered by the Governor and Council.
They were authorized to refer the matter to the President and Council at Surat. The
English common and statute law was applied freely to rectify the defects in the
Company's laws. The regularity of the position of the Court was established in 1677
when an appeal against its decision was considered by the Privy Council. The
Company argued that the issue involved one to be decided by the Bombay Court by
the verdict of a mixed jury as provided in its laws. The Privy Council upheld the
contention of the Company. In 1726, the Presidents and Councils were empowered to
make laws subject to the approval of the Directors. They were illegal it they conflicted
with English laws and customs. The then existing English law was made applicable to
Englishmen in India and to such Indians as submitted to it. Laws made in England
after 1726 were to be applicable in India only if Parliament had expressly said so. In
1726, the Mayor and Aldermen of Bombay, Calcutta and Madras, constituted civil
courts for the Company's European servants in India. Appeal lay from their decisions
to the President and Council and finally to the King-in-Council. These courts admitted
29
23

wills and granted probates. To deal with criminal cases the Presidents and Councils
were exalted into 'Justices of the peace and commissioners of oyer and terminer and
gaol delivery'. As such, they met every quarter to deal with petty offences and
determined such other cases as were brought before them. The authority of the courts
was confined to the factory towns alone.
17


The Royal Charters of 1723 and 1726 empowered the English East India Company to
set up a Mayor's Court at Calcutta. A Sheriff and nine nominated persons were to
make the Court of Mayor and Aldermen, to try all criminal cases. It was to be a court of
record. Appeals from the decisions of the Mayor's Court went to the President and
Council. Under certain conditions, appeal lay to the Privy Council. Three of the judicial
members of the Mayor's Court were regarded as the quorum for hearing, trying and
determining all civil cases. When vacancies arose, the Court elected its own alderman.
In the absence of the Mayor, the senior most Alderman took the chair.
18
The President
and Council were vested with the authority of appointing and dismissing judges, who in
turn, exercised their judicial functions at the pleasure of the former.
19



The President and Council were authorized to appoint the Sheriff, the Registrar and
the Accountant General of the Mayor's Court. All these incumbents were liable to
removal by the said authorities. The Aldermen of the Mayor's Court were liable to be
dismissed by the President and Council. However, they could approach the Court of
Directors or even the Privy Council for their reinstatement. The Mayor's Court was
mainly engaged in cases of will probate administration, contract and debt. The Court
30
24

used to dispose of the cases as quickly as possible and only in rare cases did the
litigation become prolonged. The Mayor's Court made it compulsory for the Indians to
engage lawyers for the conduct of their business in the Court. Failure on part of the
defendant to engage an attorney was treated as contempt of the Court. The Mayor's
Court kept a strict vigilance over the conduct of the attorneys practicing at the Court.
They could not resign or absent themselves for the court for a considerable period of
time without the leave of absence granted for the purpose. The Court engaged
attorneys for the persons who pleaded poverty having no wherewithal. Commissions
were issued to respectable officers of the Company to examine witnesses and to take
depositions at their places of business.
20

Arbitration was often resorted to. Arbitrators were asked to abide by the directions of
the Mayors Court. Appeals were to be filed within fourteen days from the reading of
the decree. As a matter of discretion the Court could extend the time for appeal. The
judges of the Mayor's Court when dissenting could get their dissent recorded, but not
their reasons of dissent at large, at the margin of the official register. As a counterpart
of the Mayor's Court (which a civil causes court), the President and five of the senior
Councilors at Fort William were empowered and directed to work as Justices of the
peace and commissioners of oyer, terminer and gaol delivery, holding quarter
sessions and hearing, trying, determining and punishing all criminal cases. The
Mayor's Court held its sitting in the last part of its life in the Town Hall of Calcutta. The
Court founded at Calcutta in 1727 and re-chartered in 1753, worked for about fifty
years.
21
31
25


An Act passed in 1754 authorized the Court of Directors to empower the Company's
Presidents and Councils and the Commander-in-Chief, the right to assemble and hold
courts-martial for dealing with military offences. An appeal against the decision of the
local courts-martial lay to the King's Court in England. Till 1765, the Europeans outside
factory towns of Bengal were liable to be tried in the Nawab's Court. However, this
became impossible after the British victory at Buxar. As a result, the English servants
of the Company outside the factory towns could be tried only in England. The immunity
of the servants of the Company from the jurisdiction of the Nawab's Court was soon
extended to their Indian agents and servants. This produced complete judicial
anarchy in Bengal, Bihar and Orissa.
22
The judges of the Mayors Court were bound to
work according to the laws of England, at least with respect to the Europeans.
Unfortunately they had little knowledge, education or training in those laws. They were
ordinarily junior servants of the Company.
23

In Madras, the Mayor and Aldermen constituted a civil court while the former and three
senior Aldermen were Justices of peace with criminal jurisdiction. Appeals went to the
Admiralty Court. The power of this Court to inflict capital punishment was conceded by
the Council in 1712. The Admiralty Court existed between 1688 and 1689 and from
1692 to 1704. In the interim period a temporary court of the Governor and four
justices, held sway. After 1704, the admiralty jurisdiction was exercised by the
Governor and Council. It also heard appeals from the Mayor's Court. The Mayors
32
26

Courts erected under the authority of the Company were superseded by the Mayor's
Court, established under the Charter of 1726.
24

After considerable chaos for some time, orderly judicial procedure was restored in
Bombay, by 1716. A new Court of Judicature was established. It was composed of the
Company's servants including four Indians, representing the Hindus, Muslims,
Portuguese Christians and the Parsees. Three English judges were to sit for cases
between Englishmen. The jury system was absent. The Court of Bombay exercised
wide jurisdiction in both civil and criminal matters. Capital sentences were referred to
the Governor and Council.

The Court of 1718-28 differed from that of 1672-90. The
latter was definitely constituted by the laws of the Company while the former was
established by the order of the Governor and Council. The earlier Court used juries
while the new one was essentially a Company's Court as the Bench consisted mainly
of members of the Council. However, it was an improvement on the haphazard system
of 1698-1718 and it paved the way for the birth of the Mayor's Court in 1728. When the
Mayor's Court asserted power, it led to a dispute in 1730 with the Council, which
denied its right to deal with issues of religion or caste. The Mayor was dismissed from
his post as Secretary to the Council as punishment for his insistence on his judicial
independence. Fortunately, the Company upheld the authority of the Court against the
Council. The Mayor and Aldermen as grand jury, were able to express their views
freely to the Governor and Council.
25

33
27

The Supreme Court of Fort William was the result of section 13 of the Regulating Act,
1773.
26
A Charter of Justice in this regard was issued on 26 March, 1774. The Court
established in 22 October, 1774, began functioning during January 1775.
27
It consisted
of a Chief Justice and three judges who were to be Barristers in England or Ireland of
not less than five years standing. It was declared to have fully power and authority to
excise and perform all civil, criminal, admiralty and ecclesiastical jurisdiction. The new
court was to have jurisdiction over all British subjects residing in Bengal, Bihar and
Orissa.
28
The Governor General and Council, the Chief Justice and judges of the
Supreme Court were empowered to act as Justices of Peace for the settlement of
Calcutta and the subordinate factories. The Governor General and Council held
quarter session, four times a year. These quarter sessions were a court of record. All
offences and misdemeanors which were laid in the Supreme Court were tried by a jury
of British subjects resident in the town of Calcutta. The Supreme Court was not
competent to hear, try or determine any indictment or information against the Governor
General or any of the members of the Council for any offence except treason or felony
committed by them in Bengal, Bihar and Orissa. Only the Kings Bench was competent
to try the Governor General, his councilors, the Chief Justice and the other judges.
29



The Court of the King's Bench in England was empowered to inquire into and
determine any crime, misdemeanor or offence committed by the Governor, a judge of
the Supreme Court or any of the English servants or subjects or any of the inhabitants
of India. As a result the Court of the Kings Bench was enabled to issue the writ of
mandamus on the judges of the Supreme Court of Calcutta, for the examination of
34
28

witnesses in India and to send such records to England. The Court of the Kings Bench
could likewise require the Governor General in Council, to examine witness in India
and send the records to England when causes of action involved the Chief Justice and
other judges of the Supreme Court.
30

The Act of 1781 effected important changes in the then system of judicial
administration. It was enacted that the Governor General-in-Council were not to be
subject to the jurisdiction of the Supreme Court. Further the Court was not to have any
jurisdiction in any matter concerning the revenue collection. The Supreme Court was
authorized to frame suitable forms of process to be used in native causes. The
Governor General in Council exercised appellate jurisdiction through the Sadr Diwani
Adalat. It was authorized to deal with revenue collection. No jury was allowed in such
cases.
31
The Act of 1781 clearly defined the jurisdiction of the Supreme Court and the
legislative and administrative powers of the Governor General and Council. As far as
revenue matters were concerned, only the excesses committed in its administration
were cognizable by the Supreme Court.
32


In 1793, revenue administration was divorced from judicial functions. Zilla Courts each
presided over by an English judge came into being. Appeals from these courts lay to
the provincial courts of appeal at Calcutta, Patna, Dacca and Murshidabad. The Sadr
Court consisted of the Governor General and Council. Appeals arising from its verdicts
went to the King in Council. The judges of the provincial courts sat in the court of
circuit, which were four in number. Their sentences of death or imprisonment for life
35
29

required the approval of the Sadr Nizamat Adalat under the Governor General and
Council. The right of pardon remained with the Governor General and Council.
33

The Chief Justice and judges of the Supreme Court were forbidden to accept directly
or indirectly any present, gift or donation on any account what so ever. They were also
not to indulge in any traffic or commerce. The jurors of the Supreme Court were
appointed by the King unlike those of the Mayor's Court who were appointed by the
Executive Government of Fort William. The Supreme Court was also competent to
render justice against the English East India Company. This was simply impossible
under the Mayor's Court. The judges of the Supreme Court were to be, unlike those of
the Mayors Court, Barristers in England or Ireland. In April 1777, the office of the
Advocate General was created and Sir John Day was appointed to the post.
34


A Recorder's Court was established in Bombay under the Act of 1797. It was
transformed into a Supreme Court by the Act of 1823. Its jurisdiction was based on the
same principles as that of the Supreme Court at Calcutta. The Supreme Court of
Bombay came into being in 1823. The Supreme Court of Madras was created by the
Charter of December 26, 1801, to replace the Recorder's Court consisting of the
Mayor, three Aldermen and a Recorder, created by the statue of 1797, with jurisdiction
similar to that of the Supreme Court at Calcutta.
35

36
30

The Charter Act of 1833 declared the Indian possessions of the Company to be held
by it in trust for the British Crown. Administration became centralized. The Governor
General of Bengal gave place to the Governor General of India. Centralization was
most marked in the matter of law. Bombay and Madras lost their right to make their
own laws. The Governor General in Council reinforced by the fourth ordinary member
with legal qualifications became the only law-making body in India. These laws were
applicable to all things and persons in British India, and in the case of servants of the
Company, anywhere in allied India. They were enforceable in all the courts in India,
the Company's or the Kings.
36

On the eve of the National Uprising of 1857, there were three Supreme Courts, at
Bombay, Calcutta and Madras. They consisted of a Chief Justice and two judges,
each. They administered English law or such Indian law as was made applicable to the
British subjects in India. Indians in the Presidency towns were subject to these courts.
These courts soon degenerated into tools of racial discrimination. The British subjects
of the Crown could be prosecuted only in the courts set up at presidency towns. The
Supreme Courts acted as the highest court of appeal in India for such cases. This
system practically denied justice to an Indian in cases against a European. In criminal
matters, Englishmen and Indians were subject to different courts and to a different
procedure. Another English court that decided Indian cases existed outside India.
Appeals, both from the Supreme Courts and the appellate civil and criminal courts of
the Company went to the Privy Council, when the value of the suit was five hundred
pounds or where special leave to appeal had been obtained. The Privy Council had
37
31

succeeded to this appellate jurisdiction originally vested in the Kings Court in 1813.
Not many appeals were taken to England.
37

The Company had its own sets of courts in all the provinces. In Bengal, the North-
Western Province, Bombay and Madras, there were Sadr Diwani Adalats and Sadr
Foujdari Adalats sitting in appeal over the lower courts. Below them were the district
and sessions courts in every judicial district. The same officers filled both the offices
heard criminal cases of serious nature and decided civil suits beyond a certain limit.
They heard appeals against the decisions of the lower civil and criminal court. The
collector- magistrates were the head of the magistracy in the districts and heard all
cases concerning rent and rights in land, although cases with regard to these matters
could also be lodged in the civil courts. In most of the districts, there were Assistant
Sessions or Assistant District Judges as well. Besides Europeans, Indians too
occupied various positions in the judiciary.
38

The Indian High Courts Act, 1861 was enacted by the British Parliament on 6 August
1861. In all, it had nineteen sections. As a result of this legislation, the then Supreme
Courts and Sadr Adalats ceased to exist and their records were handed over to the
High Courts. Each High Court was to have a Chief Justice and not greater than fifteen
judges. Barristers of not less than five years standing and Pleaders of Sadr Court or
High Court, of not less than ten years standing were eligible to become judges of the
High Court. In addition to it, covenanted civil servants of not less than 10 years
standing, who, had served as zilla judges for minimum 3 years of that 10 year period,
38
32

and those who had served as Principal Sadr Ameen or judge of Small Cause Court
or above, for not less than five years, were also qualified to adorn the Bench. One-
third of the judges of a High Court, including the Chief Justice, were to be Barristers.
At the same time, covenanted civil servants were to constitute not less than one-third
of the number of judges of any High Court. The High Court enjoyed sweeping
jurisdiction over a plethora of realms civil, criminal, admiralty, testamentary, intestate,
matrimonial, original and appellate. High Courts exercised superintendence over all
the courts subject to its jurisdiction. It was empowered to call for returns, transfer suits
or appeals, make general rules to regulate the practice and proceedings of lower
courts. The territorial jurisdiction of a High Court was subject to an order of the King in
Council made on the advice of the Privy Council.
39
A civil suit was generally acceptable
to the judicial committee of the Privy Council if it covered a value of not less than
Rs.10, 000 and a criminal case if the High Court itself certified that it was a fit case for
further consideration.
40

In cities where the High Court existed, there were other courts to try small causes,
presided over by Magistrates. A First Class Magistrate could fine up to Rs.1000 or
sentence a person to two years imprisonment; a Second Class Magistrate could fine
up to Rs.200, or sentence an offender to 6 months imprisonment; a Third Class
Magistrate could fine up to Rs.100, or pass a sentence of one month imprisonment.
The courts of small causes held their sessions throughout the year and they send all
cases beyond their powers, to the High Court. The civil and criminal courts of a district
were presided over by the District & Sessions Judge. He was empowered to pass
39
33

sentence in any civil or criminal case. However, death sentences required the approval
of the High Court. A Joint or Additional or Assistant Sessions Judge, used to assist
him in criminal cases. All cases tried before a High Court or before a District Court of
Sessions were heard by a jury consisting of twelve members. The jury heard the
proceedings of the case before proclaiming its verdict. The accused, after hearing his
sentence, had the opportunity to make an appeal to the appellate jurisdiction of the
High Court for a retrial, or obtain its permission to appeal to the Privy Council.
41


The Indian High Courts Act of 1865 empowered the Governor General to transfer any
territory or place from the jurisdiction of one High Court to another. The Indian High
Court Act raised the number of judges to twenty. The Governor General was
empowered to appoint additional judges for a period of not to exceeding two years.
The salaries of judges were to be paid out of Indian revenues.
42
The Government of
India (Consolidating) Act of 1915 empowered the High Courts to adjudicate upon
matters concerning revenue on their appellate side; they could not do so on their
original side.
43

On an address from a Provincial legislature, the Crown could constitute a High Court,
or re-constitute such a court or join two High Courts. On agreement of the
Governments concerned, the Crown was empowered to extend the jurisdiction of a
High Court to an area in British India outside the particular province. The legislature of
a province wherein is the chief seat of the High Court, was not empowered to alter its
jurisdiction outside the province. The power to do so rested with the legislature having
40
34

authority over the area in question. The power of the courts to compel the performance
of executive functions was limited. The High Court may require any specific act to be
done or forborne by any person holding a public office where such dong or forbearing
is under any law for the time being in force clearly incumbent on such person in his
public character and the order is applied for by a person where property, franchise or
personal right is in danger and no other remedy is available. The Court could not
compel the performance in a particular manner of an act left to the discretion of an
officer but it could compel such discretion to be exercised fairly, in a proper manner.
But, no such order was possible against the Secretary of State in Council or any local
government.
44

Before 1919, the High Courts were free to exercise their powers without much
hindrance as there was no formal assignment of administrative responsibility between
the Centre and the provinces. After the advent of the Government of India Act (1919),
High Courts were included in the Provincial List. Hence, the financing of the High
Courts became a charge on the provincial revenues which came to be voted by the
local legislature.
45

The Chief Justice was to decide who among the judges was to sit alone, or without
him. The Advocate General of Bengal was a law officer of the Government of India.
However, his counterparts in Madras and Bombay were the law officers of the
respective provinces only. This was an indication of the primacy of the Calcutta High
Court. The Chief Justice of the Calcutta High Court received an annual salary of
41
35

Rs.72,000 which was higher than that of his counterparts of Madras and Bombay, who
were given only Rs.60,000. However, the other judges in the three High Courts
received the same salary of Rs.45,000 per annum.
46


The Government of India Act of 1935 vested the administrative control of the High
Courts with the provincial governments. Expenses continued to be charged on the
provincial revenues. Despite this, the legislature had no control over the budget of the
High Courts. The salary of the judges of these courts was too, a non-votable item. The
tenure of a judge was till the attainment of sixty years of age.
47


The Federal Court was set up in 1937, to interpret the Constitution and to settle in the
exercise of its exclusive original jurisdiction, disputes between the Federation and its
constituent units. It possessed only a limited appellate jurisdiction from an order of a
High Court where the High Court happened to certify that the case involved a
substantial question of law as to the interpretation of the question. Apart from such
cases, appeal lay directly from the High Court to the Privy Council in much the same
way as before.
48
Judges are appointed by the Crown and they held office until the age
of sixty-five. A judge was liable to be removed on the ground of misbehavior or of
infirmary, if the Privy Council on reference by the Crown so recommends. A case had
to be heard by three judges sitting together. All judgments had to be delivered in open
court with the concurrence of the majority present at the hearing. The administrative
expenses of the Federal Court was charged on the federal revenues.
49
The Federal
Court usually refused to grant special leave to appeal to the Privy Council, when its
42
36

own decision was unanimous. But the Privy Council did grant special leave to appeal
to the Crown after the Federal Court had turned down the request.
50



Malabar
After the occupation of Malabar, the Joint commissioners endeavored with untiring
zeal to formulate a framework for the rejuvenation of the general administration,
revenue collection and judiciary. Emphasis was laid on the institution of regular courts
of law, both civil and criminal. Marquis Cornwallis and his successor Sir John Shore
attached great importance to the success of the nascent system in Malabar. The
correspondence between Cornwallis and Sir Robert Abercrombie reveals that they felt
the institution of a regular administration of justice to be advantageous to the English.
Mr. Farmer, Major Dow, Mr. Page, Jonathan Duncan, Charles Boddam and others did
the preliminary preparations for the administration of justice. The supervisors and
superintendents were given judicial authority along with executive and police functions.
The periodical circuits of the above officers formed a distinctive feature of the new
judicial system. Preparation of the civil code was undertaken by the Joint
Commissioners. The provincial courts or Adalats were empowered to frame standing
rules and orders for the administration of justice subject to their ratification by the Chief
Magistrate in the Court of Appeals. All subjects of litigation of a civil nature were
tackled by the provincial Adalat Courts.
51


43
37

The Commissioners defined the composition and functions of the different tribunals of
criminal judicature. They were the local subordinate courts for towns and districts,
native criminal court, the court of the Magistrate and the Chief Magistrate. The
Jurisdiction of native Magistrates was limited to petty cases. Provincial Magistrates
remitted cases to provincial Foujdary Courts.
52


Lord Cornwallis changed the then judicial practices and effected a separation of the
revenue and judicial functions of the district collector. The apex court of the Presidency
was separately designated as Sadr and Foujdari Adalat in its dual capacity of a civil
and criminal court. The institution below was designated as Provincial Court when it
dealt with civil suits and as Circuit Court when it decided criminal cases. The zilla court
which came next was again a civil and magisterial court. The appointment of native
Commissioners was left to the discretion of the zilla judges. They relieved much of the
burden of the zilla judges in the trial of pretty suits. The native Commissioners had to
submit a monthly report to the zilla judge. There were four Provincial Courts of Appeal,
each having three English judges. In 1802, the Sadr Adalat was constituted. In 1807,
Commissioner ceased to be the Chief Judge and the later was selected from among
the covenanted civil servants.
53

Travancore
The administration of justice was a subject of anxious care on the part of the rulers of
Travancore. In the ancient days, there was no separate judiciary. The naduvazhis and
44
38

the desavazhis, administered justice in conformity with maryada, ie, the custom.
Executive officers like the sarvadhikaryakar, the valia sarvadhikaryakar and the
dalawa, too, exercised judicial powers. The melvicharippukar was the only officer
whose functions were purely judicial.
54
The Vyavaharamalika of Mahishamangalam
Sankaran Nambuthiri, composed in 1496 came to be widely acknowledged as an
authoritative compilation of laws. It dealt with the rules of procedure for trial and
punishment with detailed expositions of old texts.
55


The Maharaja was the fountain head of the judicial establishment. At times, he
combined in himself all the three powers, executive, judicial and legislative. The King
was the highest court of appeal. During the reign of Marthanda Varma (1729-58), the
partisans of the pretenders, the Ettuveettil Pillamar and others, were tried at Kalkulam,
in royal presence. They were charged with treason and criminal conspiracy. Two
cadjan leaves confiscated from their messengers were produced as the evidence
against them. All the forty two accused, pleaded guilty. They were all hanged to death
at a place known as Mukhamandapam, a few miles north-west of Kalkulam. However,
the convicted Brahmins were spared from the death penalty. They were banished from
Travancore, after having them declared, outcaste.
56


The chattavariola was the precursor of the Gazette notification of the modern period.
The earliest chattavariola of which we have any record is the one issued by
Dharmaraja (1758-98) in 1776.
57
Sections 52 to 55 of the above document say that the
complaints of petitioners shall be decided reasonably by the district cutchery and that
45
39

no petitioner shall be detained to his inconvenience. It was also told that cases shall
be decided within eight days, beyond which the district officers shall be liable to pay for
the expenses of the petitioner. According to sections, 57 and 58, complaints made by
female petitioners shall be heard and settled at once. This was to ensure minimum
inconvenience for the womenfolk.
58


When Balarama Varma (1798-1810) was at the helm, the unpopular triumvirate
59

consisting of Jayanthan Nambuthiri (the then dalawa), Sankaranarayanan Chetty and
Mathu Tharakan, were handed over to the assembly headed by Velu Thampi and
others, who formed a people's court for trial. The ex-dalawa was disgraced and
banished from the country, while, his two associates were imprisoned after having
their ears severed.
60

Dalawa Velu Thampi constantly moved from place to place, on circuit, accompanied
by a select few of his subordinates. On receiving serious petitions during his circuit, he
heard those cases and single handedly conducted both the chief and cross
examination, in presence of the shastri and the mufti. Finally the verdict was
pronounced. All this hardly took four or five hours. Velu Thampi himself used to
witness the execution of his sentences before leaving the area.
61
His impartiality can
be known from an incident wherein he ordered the thumb of a provertyakar (village
officer) to be chopped off, for having manipulated land records to the advantage of a
relative of Velu Thampi.
62
His successor Ummini Thampi established the insuaff
cutcheeries to deal with the dispensation of justice.
46
40


Later, these were abolished by Colonel John Munro who combined in himself the
offices of the diwan and the Political Resident. The need for an entirely new scheme of
judicial administration was acutely felt. The Royal order of September, 1811 was a
step in the right direction. The Principal Court having four judges including the diwan,
came into being.
63
Five subordinate courts, each having three judges, were created to
function under the Principal Court. They were located at Padmanabhapuram,
Thiruvananthapuram, Mavelikkara, Vaikom and Alwaye.
64
The Principal Court
examined and corrected the proceedings of the subordinate courts. It also tried and
determined appeals from these courts. Death sentences awarded by the subordinate
courts were forwarded to Principal Court for its careful examination. The latter was
empowered to order a re-trial or a revision of the sentence of the subordinate courts.
In case of litigious appeals, the Principal Court was at its discretion to impose suitable
fines upon the appellant.
65
The next phase of judicial reform was inaugurated in 1814,
when, the Appellate Huzur Court was constituted. It had five judges including the
diwan and heard appeals from the seven zilla courts which had already been in
existence since 1812. Their number was later reduced to five. There was a provision
for two sastris in the Appellate Huzur Court. In 1817, this was reduced to one. The
new institution practically worked as an appendage of the regime.
66


The reign of Maharaja Swathi Thirunal Rama Varma (1829-46) saw the codification of
laws of Travancore, at the behest of Cunden Menon. As a result, eight regulations
were adopted. In compliance with the fifth regulation, the Appeal Court was
47
41

established. It was to have four judges, who were to be aided by a sastri and a mufti.
Bhagawanta Rao, a munsiff from Malabar was installed as the First Judge of the
Appeal Court. The directives of Cunden Menon come to be enforced as the law of
Travancore from 1836, onwards.
67
Bhagawanta Rao remained as the First Judge for
over a year. He was succeeded by Sankaranatha Pandala Jyotsyar.
68
The presence of
all the four judges, was deemed necessary during the investigation of cases. However,
two of them with the aid of the sastri and the mufti were competent enough to decide.
69
The seventh and eighth regulations, framed by Cunden Menon, authorized the Appeal
Court judges to perform the work of the sessions court. The judges of the Appeal
Court on circuit were empowered to impose fines up to two hundred rupees and
imprisonment up to three years.
70


The Appeal Court was transformed into the Sadr Court in 1862. Krishnan
Parameswaran Namboodiri became the First Judge of the Sadr Court. In 1864,
Sadasiva Pillai from the Nagarcoil Court was made the First Judge of the Sadr Court.
He had earlier been the zilla munsiff at Madurai. In 1866, the Sadr judges received a
hike of one hundred rupees in their pay. Regulation I of 1047 M.E (1872-73) provided
for the opinion of the most senior judge to prevail over the other judges, in the event of
a split verdict. The Sadr Court was given appellate and revisionary powers over the
magistracy
71
.

Regulation III of 15 August, 1879, resulted in the remodeling of the Sadr Court. The
number of judges was reduced from four to three. A single judge, as such, got more
48
42

powers. He was empowered to dispose cases or reverse judgment for another judge
or the whole court, to hear and decide on appeals whose value exceeded seven
hundred rupees, to call information from a lower court or correct any error of law or
practice. He was also entitled to transfer a case from one court to another and dispose
small cause appeals and references. If the opinion of a single judge goes against an
earlier judgment of the court, then the verdict had to be reserved for the whole court. A
two-judge bench was to hear and dispose all regular and special appeals and referred
criminal cases where capital punishment or imprisonment for life was awardable. Such
serious criminal cases were to be referred to the Sadr Court by the zilla Courts. If the
sentence awarded exceeded seven years, the convict was entitled to be heard by a
two-judge bench of the Sadr Court. When it came to questions of fact, only one appeal
was allowable. In 1874, Chellappa Pillai became the First Judge of the Sadr Court. It
was due to his efforts in concert with Arianayagam Pillai of the Alleppey Sub-Court,
which led to the codification of all the then existing laws. In 1056 M.E(1881-82), two
regulations were passed, which, resulted in the near total adoption of the Indian Penal
Code and the Criminal Procedure Code as the law of Travancore
72
.

The Sadr Court was transformed into the High Court in 1882. It functioned from within
the present Secretariat building. The High Court consisted of one Chief Justice and
four judges, assisted by a pandit. A. Ramachandra Aiyar became the first Chief Justice
of the Travancore High Court. A single judge was empowered to call information from
the subordinate courts, correct errors of law or practice, revise the calendars and
examine returns in the criminal cases and those submitted by the civil courts. He was
49
43

also enabled to refer any point of law to a Division Bench. A two-judge Bench had,
comparatively, more powers in the new set-up. It was empowered to hear appeals
from the zilla and the sessions courts and could transfer cases from one court to
another. In civil cases, when there was disagreement between judges in a Division
Bench, the case, which could otherwise be appealable to the Sovereign, was referred
to the Full Bench consisting of all the five judges, for disposal. There was to be no
appeal against its verdict. In cases of a special character or involving an important
point of law, a Full Bench consisting of all the five judges, was referred to and the
decision of the Court was deemed to be final
73
.

In the matter of appeals to the Sovereign from the decrees of a Division Bench of two
judges, provision was made for referring such appeals to a judicial committee
comprising of the remaining three judges of the High Court, if the subject matter of the
suit in the court of first instance and in appeal was valued at five thousand rupees and
more. If the judgment of the Division Bench affirmed the decision of the subordinate
court, an appeal lay to the Sovereign. This was to be feasible only if the case involved
some substantial question of law. The judicial committee which heard the appeal was
to submit their opinion to the Maharaja, through the diwan. In 1061 M.E (1885-86), the
then Viceroy, Lord Dufferin notified that the decrees of Travancore Courts might be
executed in India as if they had been made by the courts in British India. A similar
arrangement was arrived at with Cochin too. Soon a set of rules prescribing the mode
of executing foreign decrees in Travancore and laying down the form in which,
Travancore decrees should be forwarded for execution outside, was formulated. A
50
44

reciprocal system of services and processes, free of cost between Travancore and
British India was introduced in1064 M.E (1888-89). After more than two decades, in
1088 M.E (1912-13), it was declared by means of a Royal Proclamation that the
British-Indian Government should sue and be sued in Travancore in the name of the
Secretary of State for India in Council. A regulation passed in 1061 M.E (1885-86)
authorized a single judge, while sitting as a vacation judge, to dispose applications for
staying execution of civil court decrees and criminal court sentences
74
.

By a regulation of 1065 M.E (1889-90), a reconstitution of the High Court took place.
The number of judges was reduced from five to four. A single judge was empowered
to hear and dispose regular appeals in suits of the value of two thousand five hundred
rupees and above, with the provision of further appeal to the Sovereign, which was
heard by three judges sitting as a judicial committee. Regulation 1 of 1067 M.E (1891-
92) abolished the system of intermediate appeals. A three judge bench was to hear
and decide all appeals from the decisions of the district courts. From 1068 M.E (1892-
93) onwards, the judges of the High Court began to conduct regular inspection of the
subordinate courts. Until 1894, there existed a Royal Court of Final Appeal'
corresponding more or less to the judicial committee of the Privy Council in England.
After its abolition, the said functions were to some extent exercised by a Full Bench of
the High Court
75
.

The year 1071 M.E (1895-96) saw the passage of an Act aimed at providing greater
protection to judges, magistrates and others acting judicially. It was declared that no
51
45

person acting judicially was to be sued in court for any act done or ordered to be done
by him in the discharge of his judicial functions, whether or not within the limits of his
jurisdiction, provided that he at the time, in good faith, believed himself to have
authority to do so
76
. The Travancore Penal Code was passed by Regulation I of 1074
M.E (1898-99). Regulations II and III during the same year amended the Criminal
Procedure Code. In 1081 M.E (1905-6), new rules for enrolment as vakil were made.
Only Barristers-at-Law, Attorneys of British High Courts and graduates in law were
permitted to be enrolled. Regulation I of 1086 M.E (1910-11) raised the minimum value
of appeals to be heard and determined by a Full Bench of three judges from Rs.2500
to Rs.5000, subject to the formal approval of the Maharaja. Regulation VIII of 1087
M.E (1911-12) invested a single judge of the High Court with power to hear and decide
every application, for determining in which of the several courts a suit shall be heard,
for the admission of an appeal in forma pauperis or presented after the expiry of the
period of limitation, and for the transfer of any suit, appeal or other proceedings from
one civil court to another. The above two regulations were aimed at reducing the
workload of the High Court. The arrears of appeals in the High Court which was five
hundred and eighteen in 1084 M.E (1908-9) rose to nine hundred and fifty by 1088
M.E (1912-13). Two additional judges were appointed temporarily for one year
between 1913 and 1914. A similar measure was resorted to in 1092 M.E (1916-17)
77
.

The High Court was conscious of its privilege and status. In 1917, when the then
British Resident H.L. Braidwood happened to cast aspersions on the sentence
awarded in a criminal case, the then Chief Justice K. Raman Menon, took exception to
52
46

the observation made by the Resident. During this confrontation, Sir M. Krishnan Nair
held the office of the diwan. He himself was a former Chief Justice of the High Court.
The Chief Justices of the High Court held regular correspondence with the diwan,
regarding all aspects of judicial administration including the matter of recruitment of
personnel into the judiciary
78
. The High Court was transferred to a new location on 31
May, 1943. From then on the Sri Mulam Buildings at Vanchiyoor began to house the
Travancore High Court. Many other courts in the capital city were brought to the new
court complex. The first Chief justice of the Travancore High Court was A.
Ramachandra Aiyer, who later headed the Chief Court of Mysore. K. Krishnaswami
Rao was working as a sub-judge in the Madras Judicial Department, before coming to
Travancore. T. Sadasiva Aiyar held the office of the Chief Justice for 5 years and later
became a judge of the Madras High Court. The appointment of M. Krishnan Nair was
the first instance of direct recruitment from the Bar; he belonged to the Calicut Bar.
Later, he also adorned the office of the Diwan of Travancore. His successor K. Raman
Menon was formerly the Chief Justice of the Chief Court of Cochin. R. Viraraghava
Aiyengar was the first native of Travancore to become the Chief Justice of the High
Court. Alexander Varghese was a judicial officer in the Madras Judicial Service prior to
his joining the Travancore Bench. Joseph Thaliath who had a long and distinguished
service in the Travancore High Court had earlier served as judge of the Chief Court of
Cochin. The new building of the High Court was inaugurated during the tenure of T.M.
Krishnaswamy Aiyar. U. Padmanabha Kukillaya was the Head Sirkar Vakil for a
decade, before ascending the Bench. He was succeeded by Puthupalli S. Krishna
Pillai who was the last Chief Justice of the Travancore High Court.

53
47

Cochin
Instructions regarding laws and legislations in Cochin were conveyed for the guidance
of the officers concerned through the medium of written instructions called variolas.
However, regular courts of law were established after the advent of British supremacy.
The treaty concluded between the English East India Company and Tipu Sultan in
1792, brought Cochin under the former's supremacy. Early in 1793, a Commission
consisting of W.S. Farmer, Jonathan Duncan, Charles Boddam and Alexander Dow,
sought detailed information from the Raja, regarding the then civil and criminal law of
Cochin and the medium through which it was administered. The establishment of
British supremacy was not immediately followed by a code or laws or a system of
judicial administration. The British influence first exhibited itself in the issue of certain
ordinances or precepts to the officers of the State. The differentiation in the functions
of the public servants had not taken place, though several limitations were placed on
the powers which they had once possessed.
79

It was in 1811 that a clear separation of judicial and administrative machinery was
ushered in. Revenue officials were relieved from the work related to the administration
of justice. The kariakars were divested of their judicial authority. However the
chattavariola of 1812 provided for the kariakars to continue to have the complaints of
suitors enquired into by panchayats and to have them disposed of according to equity
and good conscience. The chattavariola constituting the courts was finally
promulgated in 1813. A Huzur Court consisting of four judges, including the diwan was
established at Ernakulam. Two smaller courts having three judges each were
54
48

established at Trichur and Thrippunithura. All disputes were to be settled according to
the Dharmasastras and the custom of the land, unless otherwise directed.
80

Complaints against public servants in the discharge of their duties were forwarded to
the Huzur Court to be submitted to the diwan for disposal. The tanna naick, who was
responsible for the working of the Police in a taluk, was also charged with the service
of processes issued by the courts. They were to give effect to the decrees of courts in
conjunction with the kariakar, who was the Chief Revenue Officer of the taluk.
Generally, all matters were to be enquired into in public by subordinate courts, appeals
against their decisions lying to the Huzur Court. The hukmnama in this regard had
provisions for enforcing the attendance of parties, for executing decisions without any
application from parties, for referring disputes, both civil and criminal to panchayats for
their disposal etc. Later, the jurisdiction of the courts was also defined. Suits
exceeding 300 fanams in value and all suits against the white Jews were made directly
cognizable by the Huzur Court. All other suits were to be disposed of in the first
instance by the subordinate courts, appeals lying to the former from their decisions.
81

Lieutenant Blacker, the Assistant Resident held the reins of Government between
1814 and 1818. He issued several hukmnamas which were basically aimed at setting
the procedure, the practice and the jurisdiction of the courts. The hukmnama of 1815
introduced the provisions for the collection of court fess (dasturipanam). Achadiolas
introduced by this hukmnama corresponded to the court fee stamps of today. Charges
of murder were directly cognizable by the Huzur Court. A hukmnama issued by
55
49

Lieutenant Blacker in 1816, fixed the procedure applicable to criminal cases. The
decisions of the two inferior courts in criminal cases were subject to confirmation by
the Huzur Court. Another, hukmnama issued in 1816, contained detailed rules
regarding the procedure of the civil courts. It had a provision enabling parties to
appear by pleaders. All the decisions of the two inferior courts were subject to
confirmation by the Huzur Court. The appeals by defendants against the decision of
the inferior courts were admissible only on his furnishing security for the decretal
amount.
82

In 1818, Nanjappa Iyer became the diwan of Cochin. One of the earliest acts of his
administration was the Proclamation establishing the two zilla courts and the Appeal
Court. The Huzur Court gave way to the Appeal Court. All matters civil and criminal
were enquired into and disposed of by zilla courts, which were finally subject to
confirmation by the Appeal Court.
83
The constitution of the courts remained unchanged
for quite a long time. Regulation I of 1010 M.E (1835), which was passed for extending
the jurisdiction of the courts, left the constitution of the courts, virtually untouched. In
1861, minor changes were effected in relation to the jurisdiction of the courts.
84



However the Regulation I of 1057 M.E (1881-82) considerably modified the
constitution of the courts. As a result, new classes of courts were constituted. They
were the Raja's Court of Appeal Court, the zilla court and the munsiffs courts. The
maximum and minimum limit respectively, of the munsiffs and the zilla courts
jurisdiction was fixed at Rs.500. In cases of immovable and movable property valued
56
50

below Rs.1000 and Rs.3000 respectively, a Bench of two judges was to hear and
dispose appeals against the decisions of the zilla courts. Suits of higher value were to
be heard and disposed of by a single judge of the Appeal Court. It was generally heard
by the two other judges of the Appeal Court. In cases where the State was not a party
the diwan had the power to direct the appeals to be heard by the two judges of the
Appeal Court in association with himself.
85

Regulations II and III of 1076 M.E (1901) effected major changes in the constitution of
the courts. The former gave birth to the Chief Court. The Raja's Court of Appeal
ceased to exist as a regular court of appeal. A Full Bench of all the three judges of the
Chief Court was to hear appeals against the decisions of the District judge. However,
Regulation IV of 1079 M.E (1904) introduced a modification by which to two judges of
the Chief Court was empowered to hear and finally dispose of cases. Being the Civil
Courts Regulation, Regulation III of 1076 M.E (1901) increased the jurisdiction of the
munsiffs from Rs.500 to Rs.1000. The limit of the small cause jurisdiction of the District
munsiffs was raised to Rs.50. The appellate small cause jurisdiction of the District
munsiffs was no longer provided for but in its place instead, a provision was introduced
to bestow original small cause jurisdiction on District Judges up to a limit of Rs.200.
Regulation I of 1010 M.E (1835) enacted elaborate provisions pertaining to the
procedure of the civil courts. A Code of Civil Procedure was enacted in 1039 M.E
(1863-64) on the lines of the British Indian Act VIII of 1859.
86

57
51

The Regulation IV of 1010 M.E (1835) appointed the judges of the Appeal Court as
circuit judges for the trial of sessions cases. One of the judges of the Appeal Court
held quarterly sessions at Ernakulam and half yearly sessions at Trichur for the trial of
cases committed by the criminal court. The circuit court had the power to award
imprisonment for three years, thirty-six stripes and a fine of Rs.200. All cases
deserving heavier punishments were to be referred by the circuit judge to the Appeal
Court. The powers of the circuit were raised by the Regulation I of 1036 M.E (1860-
61). Regulation I of 1043 M.E (1868) abolished the circuit or sessions courts, and
reconstituted the zilla criminal courts to try and dispose of cases of every description,
the sentence being referable to the Appeal court for approval if they exceeded three
years imprisonment, thirty-six stripes or a fine of Rs.200. The Regulation reconstituted
the Appeal Court, which was to consist of three or more judges. There was also a
provision for the appointment of a pandit to the Appeal Court.
87


As regards the power of the Appeal Court, sentences subject to confirmation of the
King were limited to those of death and imprisonment for life. The Appeal Court and
the civil courts subordinate to it were able to refer any question of Hindu law for the
opinion of the pandit. By virtue of Regulation I of 1043 M.E (1868), the Appeal Court
and the zilla courts were to be guided by the Indian Penal Code in the exercise of their
criminal jurisdiction. A system of laying court fees came into being in 1764. It was then
known as peramper. Later, it came to be known as dasturipanam. The Hukmnama of
November 1814 enacted provisions for the collection of court fees by means of
acchadiyolas or stamped cadjans. The judges of several courts were themselves the
58
52

ex-office vendors for the sale of such cadjans.
88
The hukmmama of May 1816 had a
provision enabling parties to appear by a representative. However no qualifications
were prescribed for vakils until the posting of the Regulation I of 1041 M.E (1865). The
High Court of Cochin was inaugurated on 18 June, 1938. Its first Chief Justice was
V.D. Ouseph.















59
53


END NOTES

1. Haripada Chakravarti, Criminal Justice in Ancient India, pp.3-26.
2. Ibid.
3. Ibid.
4. Ibid.
5. S. Radhakrishnan, The Cultural Heritage of India, Vol.2, p.447.
6. K. Srikantan, Administration of Justice in Ancient India, p.61.
7. N. Subramanian, Sangam Polity, pp.188-208.
8. Ibid.
9. Ibid.
10. Ibid.
11. S.R. Sharma, A Constitutional History of India, p.8.
12. B.B. Misra, The Judicial Administration of the East India Company in Bengal
1765-1782, pp.4-132.
13. Ibid.
14. A.B. Keith, A Constitutional History of India 1600-1935, pp.11-35.
15. Ibid.
16. Ibid.
17. S.R. Sharma, op.cit., pp.14-15.
18. A.C. Patra, The Administration of Justice under the East India Company in
Bengal, Bihar and Orissa, pp.33-41.
60
54

19. B.B. Misra, op.cit., p.138.
20. A.C. Patra, op.cit., p.33-41.
21. Ibid.
22. S.R. Sharma, op.cit., pp.14-15.
23. B.B. Misra, op.cit., pp.137-138.
24. A.B. Keith, op.cit., pp.46-48.
25. Ibid.
26. B.B. Misra, op.cit., p.187.
27. A.C. Patra, op.cit., p.105.
28. B.B. Misra, op.cit., pp.187-191.
29. Ibid.
30. A.C. Patra, op.cit., p.106.
31. A.B. Keith, op.cit., pp.88-90.
32. A.C. Patra, op.cit., p.107.
33. A.B. Keith, op.cit., pp.107-109.
34. B.B. Misra, op.cit., pp.191-205.
35. A.B. Keith, op.cit., p.150.
36. S.R. Sharma, op.cit., pp.59-77.
37. Ibid.
38. Ibid.
39. Abdul Hamid, A Chronicle of British Indian Legal History, pp.155-159.
40. B.B. Misra, The Administrative History of India 1834-1947, pp.531-532.
41. H.E. Hennessy, Administrative History of British India, pp.167-168.
42. P. Mukherji, Indian Constitutional Documents vol.1, pp.412-415.
61
55

43. Abdul Hamid, op.cit., p.164.
44. A.B. Keith, op.cit., pp.426-434.
45. B.B. Misra, op.cit., p.562.
46. Dipasri Banerji, Aspects of Administration in Bengal 1898-1912, pp.169-170.
47. Abdul Hamid, op.cit., p.166.
48. B.B. Misra, op.cit., p.563.
49. A.B. Keith, op.cit., pp.420-423.
50. S.R. Sharma, op.cit., p.270.
51. T.K. Ravindran, Malabar under Bombay Presidency, pp.2-29.
52. Ibid.
53. T.K. Ravindran, Cornwallis System in Malabar, pp.3-25.
54. T.K. Velu Pillai, Travancore State Manual, Vol.4, p.75.
55. V. Nagam Aiya, Travancore State Manual, Vol.3, p.546.
56. P. Shungoonny Menon, A History of Travancore from the Earlist Times, p.124.
57. V. Nagam Aiya, op.cit., p.546.
58. B. Sobhanan, Rama Varma of Travancore, p.71.
59. B. Sobhanan, Diwan Velu Thampi and the British, p.11.
60. P. Shungoonny Menon, op.cit., pp.296-303.
61. Ibid.
62. Ibid.
63. T.K. Velu Pillai, Travancore State Manual, Vol.4, p.76.
64. P. Shungoonny Menon, op.cit., p.373.
65. T.K. Velu Pillai, op.cit., pp.82-83.
66. Ibid.
62
56

67. P. Shungoonny Menon, op.cit., p.413.
68. Nittu, Vol.29, dt. 1011/2/23.
69. T.K. Velu Pillai, op.cit., p.84.
70. V. Nagam Aiya, op.cit., p.442.
71. T.K. Velu Pillai, op.cit., p.85.
72. V. Nagam Aiya, op.cit., p.443.
73. T.K. Velu Pillai, op.cit., p.90-91.
74. Ulloor S. Parameswara Aiyar, Progress of Travancore under HH SriMulam
Thirunal, pp.416-21.
75. T.K. Velu Pillai, op.cit., p.102.
76. T.K. Velu Pillai, Travancore State Manual, Vol.3, p.672.
77. Ulloor, op.cit., pp.427-30.
78. Lekshmi Reghunandan, At the Turn of the Tide, Appendix.F.
79. N.V. Subbarama Iyer, The Unrepealed Regulations, pp.iii-iv.
80. C. Achuta Menon, Cochin State Manual, pp.445-6.
81. Ibid.
82. N.V. Subbarama Iyer, op.cit., p.viii.
83. P. Sankara Menon, Cochin and Her Courts of Law, pp.105-6.
84. N.V. Subbarama Iyer, op.cit., p.viii.
85. P. Sankara Menon, op.cit., p.126.
86. N.V. Subbarama Iyer, op.cit., p.x.
87. C. Achuta Menon, op.cit., pp.449-55.
88. N.V. Subbarama Iyer, op.cit., pp.xii-xiii.

63
57


CHAPTER-2
THE HIGH COURT OF TRAVANCORE-COCHIN


The first step towards the amalgamation of Travancore and Cochin was the formation
of an Integration Committee, headed by N.M. Buch ICS, then joint-secretary to the
Government of India. Its members, V.O. Markose and Panampilly Govinda Menon,
were from Travancore and Cochin, respectively. The Buch Committee played a
decisive role in deciding the fate of the new High Court. The pages of the Buch
Committees report reveal that Ernakulam was selected to be the seat of the new High
Court, despite the members themselves being convinced of the unsuitability of that
place, in this respect. The report, did appreciate the facilities which were available at
Trivandrum. By all means, the capital of Travancore was acknowledged to be amply
spacious to house all the heads of Government, Legislature, Executive and Judiciary.
In spite of having clear knowledge of the advantages present in Trivandrum, the Buch
Committee showed marked partiality towards Cochin. This indeed influenced the
Report, which even expressed itself against the constitution of a Bench of the High
Court at Trivandrum. Ernakulam lacked the facilities for the proper accommodation of
the High Court staff, lawyers, clerks, peons etc. It posed a difficulty for the law officers
of the Government, who had to travel, constantly, between the seat of the High Court
and the State capital.
1
On the eve of integration, the High Court of Travancore had six
64
58

permanent judges, including the Chief Justice, namely, Puthupally S. Krishna Pillai, P.
Habeeb Mohammad, K. Sankaran, K.S. Govinda Pillai, P.I. Simon and Mathew
Muricken. The Cochin High Court had only three judges including the Chief Justice.
They were, K.T. Koshi, S. Govinda Menon and Paul. P. Mampili.
2

The rulers of Travancore and Cochin entered into a Covenant to unite their States into
one, with a common Executive, Legislature and Judiciary. The new entity was named
The United State of Travancore and Cochin, better known as Thiru-Kochi. The
Maharaja of Travancore became the Rajpramukh of the United State. A Council of
Ministers was to aid and advice him in the exercise of his functions. They were to
comply with the directions of the Government of India. Questions of disputed
succession in regard to a covenanted State were to be decided by the Rajpramukh
after referring it to the High Court of the United State and in accordance with the
opinion of the latter.
3

The United State of Travancore-Cochin was inaugurated on 1 July, 1949. In exercise
of the powers conferred by Article XI of the Covenant, the Rajpramukh promulgated an
Ordinance which declared that the laws existing in the two states should mutatis
mutandis continue to be in force in their respective territories and the courts, both civil
and criminal, would uninterruptedly enjoy their jurisdiction and powers conferred on
them. The courts were to eliminate conflicts arising from the application of laws by
interpretation. Another Ordinance led to the creation of the High Court of the United
State of Travancore-Cochin.
4
The Rajpramukh was empowered to appoint the Chief
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59

Justice and other judges of the High Court whose number was fixed at not less than
five. The Ordinance prescribed the powers and jurisdiction of the High Court including
the superintendence over all subordinate courts. All appeals pending before the High
Courts of Travancore and Cochin were to be heard by the High Court of the United
State. The seat of the new High Court was decided to be at Ernakulam. The
Rajpramukh had already executed an Instrument of Accession under section 6 of the
Government of India Act, 1935, thereby accepting the supremacy of Dominion
Legislature.


The difficulties caused by shifting of the High Court and the Law College from
Trivandrum to Ernakulam were echoed in the new State Legislative Assembly. An
adjournment motion was moved by Kalathil Velayudhan Nair, on 6 August, 1949, in
order to highlight this problem. The plight of employees especially of the low paid
clerks and peons was compared to that of the refugees in Punjab. Boarding and
lodging facilities were thoroughly inadequate at Ernakulam. The people who were
forced to shift to Ernakulam, found it very difficult to make both ends meet. The price
of food stuffs in that place was higher than that was prevalent in Trivandrum. Students
of the Law College were also at the receiving end, as that institution, too, was shifted
along with the High Court. Spaces assigned to clerks were mostly open corridors of
Government buildings, instead of separate rooms or houses. From the very beginning
itself, the Government claimed to have solved the grievances of people who were
victims of the regimes tughlag-model decision. However, the ground situation was to
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60

the contrary. The Government was persuaded to provide free quarters for the
aggrieved staff and lawyers it within the premises of the new High Court.
5

Speaking for the motion, Pattom Thanu Pillai criticized the policy of appeasing the
Cochin lobby as being against the spirit of integration. He said I am definitely of the
opinion that it was wrong to have shifted the High Court to Ernakulam. The necessity
of shifting of the High Court was questioned. The number of lawyers in Ernakulam was
hardly a quarter of the number, present in Trivandrum. Similar was the case with the
clerks and the staff. The urgency seen in the shifting of the High Court was absent in
the matter of providing proper accommodation for the displaced victims. Official apathy
was unbearable. Despite being a United State, there remained separate budgets for
Travancore and Cochin. He ridiculed the contention that the High Courts should not be
placed in the Capital city because Ministers might influence them. Trivandrum was a
better place to house the High Court, than Ernakulam. The shifting of the Law College
from Trivandrum to Ernakulam was also severely condemned. This act was hastily
executed, unmindful of the need, for making decent arrangements in this regard. The
callousness shown by the Government and the University towards the plight of
students of the Law College was indeed intolerable. Pattom strongly affirmed that the
Law College ought to have been at Trivandrum, itself.
6

Representing the Government, Panampilly Govinda Menon grew eloquent on the
policy of the State towards affording facilities at Ernakulam, for lawyers, clerks and
peons. Buildings within the premises of Ram Mohan Palace were told to have been set
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61

aside for the convenience of these people. An Ordinance was also issued to facilitate
convenient lodging for them. The Minister claimed that ample facilities were being
provided for the proper working of the Law College and for lodging its students. An
attempt was made to portray the condition of the Law College students in a lighter
vein. Panampilly stated that the public would forget all these contentious issues within
a span of three or four months. Concluding his response to the adjournment motion,
Panampilly Govinda Menon expressed the hope that the motion would not be pressed
in the light of the Governments assurances towards mitigating the crisis caused by
shifting of the High Court and Law College. Conceding to the pressures from the
treasury benches, Kalathil Velayudhan Nair decided not to press the motion.
7

The year 1949 which saw the formation of the United State of Travancore-Cochin, also
witnessed notable litigations involving the State Government. The Travancore Interim
Constitution Act
8
promulgated by the then Maharaja of Travancore had aimed at
establishing a responsible Government in the State. Accordingly, a Council of
Ministers, headed by a Prime Minister, was constituted. Pattom Thanu Pillai was
sworn in as the Prime Minister of Travancore. T.M. Varghese and C. Kesavan were
inducted into the Ministry. However, the regime was short lived. It was succeeded by a
new Council of Ministers, headed by Parur T.K. Narayana Pillai as the new Premier.

Meanwhile the Malayali, a newspaper, published a number of articles avowedly with a
view to discredit the new dispensation in the State. Soon, the Government cancelled
the license granted to the said newspaper by citing the relevant section of the
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62

Travancore Newspapers Act
9
. The notice given under section 5 of the Act indicated
fourteen different articles. Under section 10 of the Act, the High Court was bound to
decide whether those articles were or werent in fact of the nature described in the
section 5. The printer and publisher of the Malayali, Ramakurup, questioned the
legality of the Governments order by approaching the State High Court. He was
represented in the Court by eminent lawyers namely, K.G. Kunju Krishna Pillai,
Kalathil Velayudhan Nair and K. Parameswaran Pillai. They argued that the notice
issued under section 5 of the Travancore Newspapers Act was insufficient in law and
that the order of forfeiture was void and hence liable to be revoked for that very
reason. Having issued the notice, the Government was told to have burdened itself
with the responsibility of precisely indicating the articles that fell within the mischief of
respective provisions of the section. The High Court was told that the Governments
contention that the said fourteen articles contravened all the several clauses of the
relevant section of the said Act, was in fact an insufficient compliance with the
statutory requirements of that very section.
10

The Court disagreed with these contentions. The Bench explicitly stated that its
jurisdiction was circumscribed by section 10 of the Travancore Newspapers Act which
had authorized the Court only to decide whether the words, signs, visible
representation or matter contained in the newspaper in respect of which the order in
question was made were or were not in fact of the nature described in section 5.
Moreover, section 15 of the very same Act had further provided that no order passed
or action taken under the Act could be called into question in any court other than in
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63

accordance, with the provisions of the Act. Rejecting the contention of the petitioners
counsel, the High Court held that to bring a newspaper publication within the mischief
of sedition, it was enough if it was proved that the publication tended to or was likely to
create feelings of disaffection, hatred or contempt towards the Government and not
necessarily to incite people to rebellion. The Court however, observed that there was
considerable scope for speculation in this regard and that it was applying the law as it
stood then. The High Court observed that the law recognized a certain amount of
liberty in the citizen to criticize the Government with reference to the latters policies
and added that it was never considered to be unlimited. The Bench pointed out that all
the articles referred to in the case, were couched in strong and highly inflated
language which at many instances had descended to vulgarity. Among the fourteen
articles examined, six of them were considered by the High Court to be seditious,
while two were held partly seditious.
11

However, the Malayali was absolved from the charge of having created class hatred. A
particular article was found to have exaggerated the influence of one section of the
society, namely, the Syrian Christian community in the affairs of the State. The Court
held that a statement to the effect that a section of the populace was in greater power
than the others had not been known to create hatred against the former. The Court
saw considerable force in the contention that the newspaper delights in discussing
decent subjects in indecent language and in expressing them in terms of sexuality and
obscenity. Even while holding two articles as defamatory, the Court expressed its
inability to pronounce whether they were punishable under section 503 of the
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64

Travancore Penal Code. Doubts were expressed on the feasibility of holding the
newspaper guilty of habitual publication of defamatory matter. The Bench opined that
the materials presented before the Court were insufficient to establish the above
charge. The case was heard and decided by a Bench consisting of the then Chief
Justice Puthupally S. Krishna Pillai and Judges, K. Sankaran and Mathew Muricken,
on 14 October, 1949.
12

The fiscal policy of the post-independence era has been characterized by deficit
budgets of Governments. As a result, new avenues for taxation were explored. The
possession and sale of tobacco within the confines the princely State of Travancore,
was restricted by statute and regulated by rules. The Travancore Tobacco Act
13
of
1911 superseded all the earlier statutes in this regard. Section 4 was pertaining to the
right of possession and sale of tobacco except under the rules framed under Section
31 of the Act. Consequently, rules were issued for providing a system of licensing, in
which, stocking and sale of tobacco were authorized. Even though stocking and sale
of tobacco were permissible only under licenses, the license itself was obtainable by
all who applied for. The license had validity of one year and was renewable on the
same teams.

Later, the Government introduced a new system, under which the right to stock and
vend tobacco was to be farmed out to the highest bidder by public auction. The
Gazette notification of 12 July, 1949 proposed to hold such public auctions at various
places, in order to make the new system enforceable from 17 August, 1949, the day
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65

when the earlier licenses were set to expire. A fresh set of rules was published in this
regard in the Gazette dated 26 July, 1949. The new rules which were issued under
section 31 of the Travancore Tobacco Act were in supersession of the then existing
rules issued under the very some Act. Some merchants of Quilon and Trivandrum felt
aggrieved at the said new initiative of the State Government. They filed petitions
before the High Court, challenging the act of the Government. The petitioners were led
by one Subrahmonia Iyer. As stockists and wholesale dealers in tobacco, they
contended having customary and legally vested rights in the trade. The steps initiated
by the Government, were alleged to be hostile to their enjoyment of such rights. The
petitioners pleaded for the issuance of the writs
14
of mandamus, prohibition and
certiorari against the Chief Minister, the Minister for Excise and Customs and the
Excise Commissioners of the United State of Travancore-Cochin.

The High Court observed that the State Legislature had vested the Government with
full powers to control and regulate the sale of tobacco, which included the power of
modify it as often as the State deems it fit. This was told to be explicit from section 14
of the Travancore General Clauses Act of 1072 M.E (1896-97)
15
. The said provision
had stated that where a power was conferred on any authority to make rules,
regulations or byelaws, that power was to be construed as including a power to
rescind, revoke, amend or vary these rules or regulations. The rules were to come into
operation after the expiry of the licenses issued under the old rules. A writ of
mandamus was sought to be issued against the Government. However, the Court
opined that the petitioners failed to make out a case that they had acquired any
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66

statutory or customary right to carry on forever, the trade as stockists and sellers of
tobacco. Their sole privilege was told to be under a license granted under a statutory
rule. The petitioners were told that they were not entitled to demand the continuance of
their licenses, when the very system of licensing was abolished. A writ of prohibition
was one intended to keep the inferior court (to which it is directed) within its proper
jurisdiction. The High Court stated that neither the Chief Minister, who was in charge of
Excise, nor the Excise Commissioner, could be treated as an inferior court. The Court
added that the respondents could not be held to have acted in excess of jurisdiction as
such jurisdiction was explicitly conferred on them by the statutory rules. Similarly, the
writ of certiorari was for the purpose of seeking a review of a judicial act of an inferior
tribunal. The system of farming out by public auction to the highest bidder the right to
trade in tobacco in any particular area, was held not to be a judicial proceeding, even
remotely.
16

Initially, the Government Pleader T.N. Subramania Iyer had contended that despite
being the highest court in the State, the High Court had no jurisdiction to issue any of
the prerogative writs. The ground for the said contention was section 6 of the
Ordinance II of 1124 M.E (1949). The above section had provided for the State High
Court to be a court of record. The said statute had not clearly enumerated the
jurisdictional power of a court of record, as such. Rejecting, the contention, the High
Court held that its powers were not inferior to those a court of record, which happened
to be the superior court elsewhere.

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67

The erstwhile Cochin High Court and the Travancore High Court had not claimed to
have the power to issue the prerogative writs. However, the Bench considered these
instances as of meagre importance. Ordinance II of 1124 M.E (1949) had declared
that the jurisdiction and powers of the High Court were to be exercised subject to the
provisions of the said Ordinance. This was explicitly stated in section 18 of the
Ordinance. Section 6 was told to be conferring on the State High Court, all the powers
of a court of record which existed elsewhere. Finally it was pronounced that the
petitioner had not made out a case for the grant of extraordinary reliefs claimed by
them. The case was decided by a Bench consisting of the then Chief Justice
Puthupally S. Krishna Pillai and Justices, K. Sankaran and S. Govinda Menon, on 14
November, 1949. Justice S. Govinda Menon while concurring with the judgement,
expressed doubts on the jurisdiction of the High Court pertaining to the issue of
prerogative writs.
17

Original Petitions formed only a part of the work done by the High Court. Appeals
against the verdicts of the subordinate courts were also entertained by the High Court.
One such case did help to throw light on the working of the judges of the High Court.
This case had actually originated during the days of the Travancore High Court. A
second appeal was heard by a Bench composed of Justices, Sankarasubba Iyer and
Lukkose. They differed in their conclusion regarding the disposal of the said second
appeal. Justice Sankarasubba Iyer was for confirming the decision of the lower
appellate court and dismissing the plaintiffs suit. On the contrary, Justice Lukkose
favoured reversing the decision of the lower appellate court and restoring the munsiffs
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68

decree which had granted the plaintiff relief against the defendants. Due to this
difference of opinion, the case was referred to another judge in accordance with
section 9 of the Travancore High Court Act
18
. That judge happened to be the then
Chief Justice, Joseph Thaliath. He was in agreement with the decision of Justice
Lukkose. As a result, a decree was drawn up according to the majority opinion.
However, when the decree had to be signed, Chief Justice Joseph Thaliath and
Justice Lukkose, both had retired from their offices. This led to the decree being
signed on their behalf by the new Chief Justice, T.M. Krishnaswami Aiyer.
19


However, the decree bore the date 20-5-1118 M.E (1943), i.e, the date when the then
Chief Justice Joseph Thaliath pronounced his decision. Justice Lukkose retired on 27-
4-1117 M.E (1942). It was contended by the appellant that after the decision of the
third judge the case should have gone back to a Bench for final disposal. The Court
disagreed with the above view by throwing light on section 9 of the Travancore High
Court Act. It read as follows-in any case, civil or criminal, if the two judges forming a
Division Bench agree as to the decree, order or sentence to be passed, their decision
shall be final. But if they disagree, they shall deliver separate opinions, and their upon
the Chief Justice shall refer, for the opinion of another judge, the matter or the matters
on which such disagreement exists, and the decree or order or sentence shall follow
the opinion of the majority of the judges hearing the case. Thus it was affirmed that
the High Court had only acted in consonance with the section 9. The Bench also
observed that the High Court of the United State of Travancore-Cochin was following
the precedents established by the High Courts of the erstwhile Travancore and
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Cochin. The section 9 of the Travancore High Court Act was equated with section 48
of the Government of Cochin Act, 1938.
20

The Appellant was told that the decree was not of a single judge (Chief Justice Joseph
Thaliath), but of the majority of the judges who heard the case. It was also declared
that there was nothing wrong in the Chief Justice T.M. Krishnaswami Aiyer signing the
decree on behalf of his predecessor in office. The Civil Procedure Code was quoted in
this regard. It had provided that when a judge had vacated office after pronouncing a
judgement but without signing the decree, a decree drawn up in accordance with such
judgement might be signed by his successor. The second appeals were hence,
dismissed by the Bench consisting of Justices, K.T. Koshi and Mathew Muricken, on
23 December, 1949.
21

By virtue of the United State of Travancore-Cochin Administration and Application of
Laws Act, 1950, the High Court of the United State was designated to hear appeals
from any order or sentence of the Special Tribunal.
22
The use of Malayalam in
proceedings of the High Court was authorized by the Rajpramukh with the consent of
the President of the Indian Union, with effect from 26 January, 1950. However,
judgments decrees and orders, passed or made by the High Court were exempted
from the rule. This initiative was based on the clause (2) of Article 348 of the
Constitution of India.
23

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In 1950, the very appointment of the then Chief Justice of the United State of
Travancore-Cochin was challenged in the course of litigation. The United State of
Travancore and Cochin High Court Act
24
passed by the Legislature came into force on
28 December, 1949. Earlier on 16 July, 1949, the Rajpramukh had promulgated an
Ordinance
25
for creating a Public Service Commission for the United State. The
Ordinance was in force till 16 January, 1950. On 14 July, 1949, the Rajpramukh
appointed C. Kunhiraman as the Chairman of the State Public Service Commission.
The latter was an ex-judge of the Madras High Court. For the continuance of the
Public Service Commission from 16 January, 1949 up to 26 January, 1950, the State
Legislative Assembly passed the Act I of 1950.
26
On 20 January,1950, C. Kunhiraman
resigned the chairmanship of the Public Service Commission. On the very same day
itself, his resignation was accepted and he was appointed as the Chief Justice of the
State High Court by the Rajpramukh.

According to the law prevalent in Travancore a sentence of imprisonment for life
passed by a sessions judge had to be submitted for confirmation by the High Court. In
such a case, the reference for confirmation and the appeals preferred by the accused
against their conviction and sentence, came up for hearing before a Division Bench
consisting of the Chief Justice, C. Kunhiraman and Justice K.T. Koshi. The case was
heard for two days. On the conclusion of the hearing the Chief Justice confirmed the
conviction and sentence passed by the Sessions Judge. Ten days later on 24
February, 1950, petitions were filed by the accused to obtain certificates under Articles
132(1) and 134(1)(c) of the Constitution of India
27
, to prefer appeals to the Supreme
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Court. The grounds taken in those applications were that the Bench which heard and
disposed of the appeals was not properly constituted resulting in it being incompetent
to hear or decide the case and that the decision confirming the conviction and
sentence was wrong and unsustainable in law. The petitioners were represented by
K.G. Kunjukrishna Pillai and N. Padmanabha Panicker while the Advocate General
T.N. Subramania Iyer appeared for the State.


The petitioner contented that the appointment of the then Chief Justice had
contravened the provisions of sub-section (5) of section 3 of the Travancore-Cochin
Public Service Commission Ordinance (read with the Travancore-Cochin Public
Service Commission (continuance)) Act, 1950, which had made the Chairman and
other members of the Public Service Commission ineligible for further employment
under the Government of the United State of Travancore-Cochin. It was also urged on
behalf of the petitioners that section 9(1) of the Travancore-Cochin High Court Act had
also been violated. Petitioners claimed that non-compliance of mandatory provisions in
the appointment of the Chief Justice had rendered the appointment invalid and thereby
rendering the appointees acts in that office void.
28

In the course of the arguments Article 376 (2) of the Indian Constitution came to the
notice of the Court. It read as follows- The judges of a High Court in any Indian State
corresponding to any State specified in Part B of the First Schedule, holding office
immediately before the commencement of this Constitution shall unless they have
elected otherwise, become on such commencement, the judges of the High Court in
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the State so specified and shall not withstanding anything in clauses(1) and (2) of
Article 217 but subject to the proviso to clause (1) of that Article, continue to hold office
until the extirpation of such period as the President may by order determine. It was in
pursuance of the above clause that the President had passed on order on 26 January
1950 which read as follows-
In pursuance of the provisions of clause (2) of Article 376 of the Constitution, I hereby
determine that Sri. C. Kunhiraman, Chief Justice of the High Court in the State of
Travancore-Cochin shall, notwithstanding anything contained in clauses (1) and (2) of
Article 217 but subject to the proviso to clause (1) of that Article continue to hold office
until and including the 25
th
January 1952. The counsel for the petitioners, K.G.
Kunjukrishna Pillai contended that the said order was invalid as the President could
not fix any term for a judge who had passed the age of sixty.
29

The Advocate General launched his broadside by throwing light on Article 13 of the
Covenant entered into by the Rulers of Travancore and Cochin. It was the founding
document of the United State. The said article clearly stated that until a Constitution
comes into operation, the Rajpramukh and the Council of Ministers were bound to
comply with the directions of the Government of India. The appointment of the Chief
Justice took place in compliance with a direction issued by the Government of India.
Meanwhile, the relevant extract from a communication received from the Union
Government dated 16 January 1950 was produced in the Court. It explicitly showed
that the appointment of the than Chief Justice was made with the consent and
approval of the Government of India. The Advocate General claimed that the
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judgeship of the Travancore-Cochin High Court was not an employment under the
Government of the State. He told the Bench that the sub-section 5 of section 3 of the
Public Service Commission Ordinance had only made its members, including its
Chairman ineligible for further employment under the Government of Travancore-
Cochin State. On the contrary, the petitioner was of the view that, since the judges of
the High Court were appointed by the Rajpramukh, by virtue of him being the head of
the State, such an appointment did constitute an employment under the Government
of the United State.
30

The Section 9(1) of the Travancore-Cochin High Court Act had provided for every
permanent judge to hold office until he was sixty years old. The Advocate General did
not regard it to be an obstacle in the way of appointing a person above the age of
sixty, to the office of judgeship of the State High Court. He told the Bench that being
above the age of sixty years, was not a disqualification under section 9(2) of the High
Court Act and that the provision in section 9 (1) only gave a guarantee of service to
those appointees who were under sixty years of age. It was contended on behalf of
the State that the said sections of the Public Service Commission Ordinance and the
High Court Act were not of a mandatory nature but merely directory. It was also urged
that the objection to the constitution of the Bench was an afterthought as no objection
was raised when the appeals were heard. The High Court also observed that clause
(1) of Article 217 of the Indian Constitution, too, fixed the normal retiring age of a judge
at sixty. But, the Bench added, that it neither did operate as an absolute bar against a
judge being retained in service beyond the age of sixty years nor disqualify a judge
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from holding office on completing sixty years of age. Among the qualifications
prescribed for being a judge of the High Court, neither clause (2) of section 9 of the
High Court Act, nor clause (2) of Article 217 of the Indian Constitution, had mentioned
any such age limit. Moreover, Article 224 of the Constitution had expressly provided
for entertaining the services of retired High Court judges, on the Bench, under certain
circumstances.
31

When the Constitution came into force an 26 January 1950, C. Kunhiraman was
holding the office of the Chief Justice. On the very same day, the President of the
Republic of India issued an order contemplated by clause (2) of Article 376 of the
Constitution, which effectively empowered the Chief Justice to continue in office until
and including 25 January 1952. It was not an order of appointment. However, the
Bench opined that the said order had the effect of ratifying the initial appointment
made by the Rajpramukh, and of accepting the appointment as a proper and valid one.
By strictly and literally construing clause (2) of Article 376, it was clear that the
President could act as if clause (1) and (2) of Article 217 did not exist. There was a
temporary and transitional provision in Article 376 which empowered the President to
fix the period of service of those judges of the High Court in the States specified in
Part B of the First Schedule of the Constitution, who were holding office at the
commencement of the Constitution.
32


The Court was of the view that judicial tenure was essentially different from
employments under the Executive Government. Identical provisions in the Indian
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75

Constitution and in the Travancore-Cochin High Court Act had emphasized the
independent status of judges. In fact the independence of judiciary was recognized in
the United State of Travancore-Cochin even before the commencement of the
Constitution of Free India. Article 12 of the Covenant, which gave birth to the United
State, had expressly forbade the Rajpramukh from assuming to himself any of the
powers vested in or exercisable by the High Court or to suspend either wholly or
partly, any law relating to the High Court.
33


The appointment of C. Kunhiraman was made with the approval and as per direction
of the Government of India. This fact was clearly proved by a communication to that
effect sent by the Government of India to the Government of the United State, on 16
January 1950. By virtue of Article 13 of the Covenant, the State was bound to obey
that direction. It was only on 19 January 1950 that the legislature of the United State
passed a resolution, adopting the Indian Constitution as the Constitution of the State
too. A Proclamation was issued to that effect by the Rajpramukh on 25 January 1950.
Until that date Article 13 of the Covenant was in full force. Hence the High Court
concluded that the direction issued by the Government of India on 16 January 1950,
pertaining to the appointment of C. Kunhiraman as the Chief Justice of the High Court
was perfectly correct and that the validity of the appointment was unquestionable. The
applications of the petitioners were dismissed on 3 June 1950.
34

In the course of the trial of a murder case at the Parur Sessions Court, the judge made
strong remarks against the conduct of the then Assistant Surgeon in charge of
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76

Moovattupuzha, Hospital. She was accused of being indifferent towards the injured
person. The Sessions Judge had opined that the deceased could have survived if the
necessary medical aid was rendered in time. The doctors professional competence
was questioned by the Sessions Judge.
35
The aggrieved Assistant Surgeon petitioned
the High Court to expunge the remarks about her in the judgment of the Sessions
Judge. The High Court discovered that the remarks made by the Sessions Judge were
unwarranted and unjust. Justice Govinda Pillai observed that the witnesses were not
given an opportunity to defend themselves. The Bench categorically stated that the
courts should not travel beyond the necessities of the case and that remarks in bad
taste were unworthy of being a part of a judgement. The High Court affirmed that it
had the power to entertain an application by way of revision to expunge such remarks
made in a judgment, against witness. Meanwhile, the Government Pleader who
appeared for the State did concede that the remarks made by the Sessions Judge
were unwarranted and devoid of evidentiary support. Finally, on 8 August, 1950, the
said contentious remarks were expunged by the High Court.
36

The continuous strife between the INC and the TTNC was a notable feature of the
polity of the United State of Travancore-Cochin. T.M. Varghese, a prominent member
of the INC became the first Speaker of the Legislative Assembly of the State. The
legality of T.M. Varghese holding the speakership of the State Assembly was
questioned by A. Nesamoni, who was a legislator and the leader of TTNC. The latter
filed a writ of Quo-warranto in the High Court, in this regard. The Legislature of the
United State of Travancore-Cochin was constituted under the Covenant entered into
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77

by the Rulers of these two erstwhile princely states. T.M. Varghese held the office of
the Speaker of the above body. After the commencement of the Constitution, the State
Assembly continued to exercise the powers and duties of the Legislature for the
United State, by virtue of Article 385

of the Constitution.
37
However, no provision of the
Constitution had provided for the President of the Assembly to remain in that place,
after 26 January 1950. According to the petitioner the then Speaker had committed an
illegal usurpation of a public office.

The State was also impleaded in the case. T.N. Subramania Iyer, the then Advocate
General appeared on behalf of the counter petitioners. Raising a preliminary objection,
the Advocate General stated that the petition of the kind which was being considered
could be filed only by a person who was defeated in an election for speakership or
someone having a similar interest. Overruling the said contention, the Bench observed
that apart from his right as a citizen, the petitioner in being a member of the Legislative
Assembly had every right to know by what authority does the Speaker functions.
Hence the petitioner was considered competent to file the said petition. Article 382 of
the Indian Constitution had provided for the continuance of the Speaker of the
Legislative Assembly in Part-A States. But, there was no such corresponding provision
in Article 385 with regard to the Speaker in the Legislature of Part-B States.

The historical evolution of the Constitution was analyzed by the High Court. The
Constituent Assembly was created by virtue of section 8 of the Indian Independence
Act 1947. The Legislatures in Part-A States (originally known as Provinces) were
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78

constituted under section 18 of the Government of India Act 1935. These Acts of
1947 and 1935 had in fact laid the foundation for legislative bodies that existed before
26 January 1950. The above Acts were repealed by Article 395 of the Indian
Constitution. The Legislative Bodies of Part-B States were not governed by either of
the above two Acts. Had they joined the Federation as envisaged in the 1935 Act, the
Part-B States (formerly known as Native or Princely states) would have come within
the purview of the Government of India Act, 1935. As a result Part B states stood on
an entirely different footing from the Part-A States.

The legislatures of Travancore and Cochin States were integrated by virtue of Article
10 of the Covenant. The Rajpramukh had promulgated Ordinance III of 1124 M.E
(1949) to regulate and control the Legislative Assembly of the United State. The
counter-petitioner was elected Speaker under the provisions of the above statute. He
continued to hold that office by virtue of Ordinance VIII of 1124 M.E (1949). Thus the
body of authority which functioned immediately before the commencement of the
Indian Constitution as the Legislature of the United State was the Legislative Assembly
created by the Covenant and strengthened by the above two Ordinances. It was this
legislature which was referred to in Article 385 of the Constitution.
38

Article 372(1) of the Constitution and the Adaptation of Laws Order 1950 led to the
continuance of the existing laws in Part-B States. Article 385 had provided for the
continuance of legislatures in Part-B States. In the light of these facts, the Bench
opined that the Speaker was legally eligible to continue in his office. It was also
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79

affirmed that a Speaker had a special status and separate existence apart from the
Assembly over which he presided. The Speaker was told to be an officer of the
Legislature who continues to be in office even if the Assembly was dissolved and who
continues in that office till the commencement of the next Assembly. Finally, on 27
June, 1950, the High Court declared that the mere absence of a provision for the
continuance of the Speaker of the Legislative Assembly of Travancore-Cochin in
Article 385 of the Indian Constitution was not liable to affect the tenure of speakership
of T.M. Varghese.
39

On 1 April, 1952, P.S. Nataraja Pillai proposed the Travancore-Cochin High Court Act
(Amendment) Bill. However, a point of order was raised against it at the very outset
itself. The competency of the State Legislative Assembly to consider the said Bill was
questioned by the Minister for Finance and Civil Supplies, Panampilly Govinda Menon.
The subject matter of the Bill was alleged to have fallen under Entry No.78 in List I,
Schedule VII of the Constitution, which exclusively sets it apart for the consideration of
the Union Parliament. The Bill was portrayed as one which sought to reconstitute the
High Court, by having a Bench at Trivandrum. It was told that the Bill was legally
invalid for not being accompanied by the previous sanction or recommendation of the
Rajpramukh. The Minister did not fail to draw the attention of the House to a few legal
and constitutional points, in order to buttress his stand on the issue.
40


Rule 35 of the Assembly Rules stated the following, Every Bill shall unless the
Speaker otherwise directs be accompanied by a financial memorandum which shall
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80

invite particular attention to the clauses involving expenditure and shall also give an
estimate of the recurring and non-recurring expenditure involved in case the Bill is
passed into law. The Speaker had exempted P.S. Nataraja Pillai from the production
of such a financial memorandum. Article 207(3) of the Constitution had said, A Bill
which of enacted and brought into operation would involve expenditure from the
Consolidated Fund of a State shall not be passed by a House of the Legislature of the
State unless the Governor (or the Rajpramukh) has recommended to that House the
consideration of the Bill. According to Rule 34 of the Assembly Rules, Any member
other than a Minister desiring to move for leave to introduce a Bill, shall give notice of
his intention and shall, together with the notice, submit a copy of the Bill and a full
Statement of objects and Reasons. If the Bill happened to be one which, under the
Constitution, cannot be introduced without the previous sanction or recommendation of
the Rajpramukh, the member had to annex to the notice a copy of such sanction or
recommendation, and the notice was not be valid until this requirement was complied
with. Questions with regard to sanctioning or recommending such a Bill, was to be
referred to the Rajpramukh whose decision was final. This was the substance of the
then prevalent legislative procedure.
41

P.S. Nataraja Pillai countered the point of order raised by Panampilly Govinda Menon.
The formers request for exemption from the requirement of a financial memorandum
was granted on 13 March, 1952. It was claimed that the Bill did not contemplate any
additional charge on the Consolidated Fund. The Speaker was told to possess the
absolute right to decide whether a Bill was a Money Bill or whether it contemplated a
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81

charge on the Consolidated Fund. This was on the strength of Article 199(3) of the
Constitution which ran as follows, if any question arises whether a Bill introduced in
the Legislature of a State .is a Money Bill or not the decision of the Speaker of
the Legislative Assembly of such State thereon shall be final . As a result, the matter
was solely under the Speakers discretion. Unless the House and the Speaker was
satisfied that the Bill contemplated a charge on the Consolidated Fund, the question
did not require the recommendation of the Rajpramukh. The Speakers decision was
told to be final, in this regard.
42

Article 124, which began with the heading Establishment and constitution of the
Supreme Court, deals with the number of judges and their appointment by the
President of India. Article 216, having the marginal heading entitled, Constitution of
High Court, dealt with the judges. It read, Every High Court shall be a court of record
and shall have all the powers of such a court including the power to punish for
contempt of itself. As far as its constitution was concerned, the Article further read as
follows, Every High Court shall consist of a Chief Justice and such other judges as the
President may appoint. As long as the issue did not deal with the number of
judges or about the composition of the Benches, the House was free to handle other
matters, which definitely fell within the purview of the Administration of Justice, that
was well within the ambit of the State Government. The judges were the organs of the
High Court. As such, matters dealing with them alone, qualified to be associated with
the organization of the High Court. The subordinate officers and servants do not
come within its purview. Entry 3 of List II had clearly placed the officers and servants
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of the High Court within the purview of the House which had the power of locating the
Court anywhere where justice would be administered. A precedent was already set in
the Legislature, in this regard; it was by Act I of 1952, which regulated the business
and jurisdiction of the High Court. The said Act had been approved by the President of
India. It was taken as proof to show that the House had the right and jurisdiction to
legislate on such and other analogous matters.
43

Nedumangad R. Kesavan Nair took the Minister for Finance to task for obstructing the
Bill at the introduction stage. Article 207(3) had said that a Bill involving expenditure
from the Consolidated Fund of the State should not be passed without the Governors
sanction. It does not say that the Bill should not be introduced without the Governors
sanction. The objection that the Rajpramukhs sanction had to be obtained before the
introduction of the Bill did not stand on the reading of sub-clause 3 of Article 207. The
Travancore-Cochin High Court (Amendment) Act, 1951 (Act I of 1952) was passed by
the Legislature of the State, which received the assent of the President on 8 January,
1952. The preamble of the Act says, Whereas it is necessary to make provision
regulating the business of the High Court for fixing the jurisdiction and powers of single
judges, Division Benches and Full Benches and for certain other matters connected
with the functions of the High Court, it is hereby enacted as follows. In the light of this
fact, it was claimed that the question of regulating the business of the High Court was
very recently, treated essentially as a State subject.
44

89
83

A. Kunjan Nadar and M. Gopalan Nair too spoke in favor of the Bill. N. Raghava Kurup
submitted that the shifting of the High Court from the then location to a new place,
would not affect the constitution of the apex court of the State. He pointed out that
during the last mid-summer vacation, the then vacation judge (a single judge) held his
court at Trichur, away from the seat of the High Court at Ernakulam. The Member
affirmed that the Bill, which was proposed to be introduced before the House by P.S.
Nataraja Pillai, had just contemplated a similar circumstance where one single judge
and a Division Bench, would have to sit at a place different from the seat of the High
Court. By the example of the above vacation sitting, the High Court was assumed to
have opined that the shifting of the Bench from the then location did not come within
the ambit of the constitution of the High Court. The above incident had taken place
well after the inauguration of the Constitution of India.
45

The Advocate-General, as expected, spoke in favour of the Government of the State.
He justified the Travancore-Cochin High Court (Amendment) Act (Act I of 1952) on
grounds of it being a matter of jurisdiction and powers of the High Court which was
based on entry No.65 of the State List in the Constitution. He opposed the use of
words constitution and organization in juxtaposition to jurisdiction and power.
Pattom Thanu Pillai dealt with the previous legislation regarding the State High Court
i.e., Act I of 1952. Article 225 of the Constitution was quoted as follows, Subject to the
provisions of the Constitution and to the provisions of any law of the appropriate
Legislature made by virtue of powers conferred on that Legislature by this Constitution,
the jurisdiction of, and the law administered in, any existing High Court, and the
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84

respective powers of the judges thereof in relation to the administration of justice in the
Court including any power to make rules of court and to regulate the sitting of the court
and of members, thereof, sitting alone or in Division Courts, shall be the same as
immediately before the commencement of this Constitution. No.46 in the Concurrent
List has the following words- Jurisdiction and powers of all courts, except the
Supreme Court, with respect to any of the matters in the list. Pattom remarked that
the proposed Bill dealt with a matters of much less importance in respect of
administration of justice than taking away power from judges, investing them with new
powers, investing the Division Bench with powers of a Full Bench, dispensing with the
Full Bench altogether in respect of civil matters.
46

The Speaker, after examining all facets of the matter, held that the Bill proposed by
P.S. Nataraja Pillai was within the legislative competence of the State Legislature. The
latter moved for leave to introduce the Travancore Cochin High Court Act
(Amendment) Bill. It was seconded by A. Achuthan. Panampilly Govinda Menon
opposed the motion. While speaking on the Bill, P.S. Nataraja Pillai opined that the
integration of Travancore and Cochin was a political act which was not based on the
willingness and consent of the people, whose representatives were not a party to the
Covenant. The Legislative Assembly which came into being after the integration was a
creation of the Executive. The general public of Travancore was denied the
opportunity to know why the High Court situated at Trivandrum was shifted to
Ernakulam, after integration. The responsible authorities had paid little attention to the
popular aspirations, in this regard. In order to rectify manifold grievances of the
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85

litigants, it was proposed to have the High Court located at two places-one portion at
Trivandrum and another at Ernakulam. The Government opposed the Bill tooth and
nail. A.J. John, the then Chief Minister vehemently spoke against the very idea of
shifting the seat of the High Court back to Trivandrum. He also opposed the proposal
to have a Bench of the High Court at Trivandrum. As there was opposition to the
introduction of the said Bill, a poll was taken in which fifty one legislators voted in
favour of considering the Bill, while thirty one opposed it. One stood neutral.
47


The Travancore Cochin High Court Act (Amendment) Bill, moved by P.S. Nataraja
Pillai intended to remedy the hardship and inconvenience to people of Travancore
region, who were aggrieved at the shifting of the High Court to Cochin. Formerly, both
Travancore and Cochin had their respective High Courts. Comparative statistics
showed that more than half of the cases filed in the High Court were from the area of
jurisdiction of the four District Courts of Nagercoil, Trivandrum, Quilon and
Mavelikkara. Nataraja Pillai reminded the House that the shifting of the High Court was
not included as provision in the Covenant entered into by the erstwhile states of
Travancore and Cochin. Also, there was no agreement to this effect. The Rajpramukh,
under the advice that was tendered to him by the Ministry, promulgated the Ordinance
II of 1949, which resulted in the shifting of the High Court. The aforesaid Bill proposed
not only the shifting of the High Court, back to Trivandrum, but also the establishment
of a Division Bench at least at Ernakulam. Thus there was complete absence of the
element of regionalism in the Bill. On the contrary it sought to alleviate the suffering of
a vast section of the population, without making any other section feel aggrieved. The
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learned members also narrated instances of how, the bifurcation of the High Court of
other states, were effected with perfect harmony. The examples of Allahabad and
Lucknow in Uttar Pradesh, Gwalior and Indore in the then Madhya Bharat and that of
Jaipur and Jodhpur in Rajasthan were cited vividly. At the time of integration, the
Travancore High Court was of the opinion that the High Court might be bifurcated and
allowed to function, one at Ernakulam and the other at Trivandrum. Unfortunately, by
the necessity of political exigencies of the time, it was decided to shift or re-locate the
Trivandrum High Court to Cochin to be called Travancore-Cochin High Court.
48


Nataraja Pillai proposed the referring of the Bill to a Select Committee, having for its
members, other than himself and the Deputy Speaker, Nedumangad R. Kesavan Nair,
N.P. Varghese, C. Achutha Menon, R. Gangadharan, M. William and T. A. Majeed.
The Advocate General was to be an ex-officio member. The quorum of this committee
was decided to be four and its report was to be submitted with ten days. The Chief
Minister, A.J. John, opposed the motion to refer the Bill to a Select Committee, and
stated that the decision to locate the High Court of the United State of Travancore-
Cochin was taken at the time of integration. He referred to the report of the Integration
Committee, i.e., the Buch Committee. Despite the Governments opposition to the
change of seat of the High Court as proposed by the Bill, the Chief Minister explicitly
informed the House about his intention to introduce a Bill to amend the High Court Act
in the next session of the Assembly, so as to enable the constitution of Bench at
Trivandrum. He also told the Legislature that the Chief Justice would be invested with
the authority to decide the details of the Bench and its personnel. The Chief Minister
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wished that Nataraja Pillai would withdraw the Bill in the right of the formers
statement.
49

The CPI member, T.V. Thomas criticized the so-called 'delaying tactics' of the
Congress Government. Despite being not in favour of shifting the High Court back to
Trivandrum, he did support the installation of a Bench at that place. He exhorted the
Government to work through the Select Committee if it had any bonafide designs, in
this respect. M. Gopalan Nair and C. Kunjan Nadar, too, spoke in favour of the Bill
moved by P.S. Nataraja Pillai. M.M. Abdul Khader admitted to the absence of any
provision regarding the shifting of the High Court in the Covenant signed between the
rules of Travancore and Cochin. He found no harm in the Bill being referred to a Select
Committee on the definite understanding that the seat of the High Court shall be at
Ernakulam and only a Single Division Bench need be situated at Trivandrum.
50


Chandrasekhara Pillai and K.P. Krishna Menon requested for the withdrawal of the Bill
in the light of the assurance given by the Chief Minister. Pattom Thanu Pillai spoke
strongly supporting the initiative of P.S. Nataraja Pillai. He also supported the
contention that it would be better to have both the High Court and the seat of
Government at one place. He cited the example of the Advocate General who had to
be present in the Assembly. Pattom stressed the point that facilities for litigation in
both Ernakulam and Trivandrum should be the same. The then High Court was to be
managed by eight judges. Thanu Pillai advocated stationing of four judges at
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Trivandrum and the rest for at Ernakulam. He told that he had no objection to head
quarters of the High Court being at Ernakulam .The Select Committee was to have full
power to decide the number of judges. Pattom did cast aspersions on the sincerity of
the Government, which spoke of its intention of bringing in a fresh Bill in the next
session, even when a Select Committee was going to be sufficiently empowered to
decide the matter amicably. He again informed the House that the sole aim behind the
Bill was the bifurcation of the High Court.
51


Suit in S.A and A.S
Trivandrum - 2774
Cochin - 380

C.M.P
Trivandrum 5855
Cochin -168

C.R.P
Trivandrum - 991
Cochin - 77

Session Appeals
Trivandrum -171
Cochin - 2

Criminal Appeals
Trivandrum -171
Cochin - 6

Criminal R.P.S
Trivandrum 400
Cochin -13

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89

Another member of the Assembly, Nedumangad R. Kesavan Nair, thanked P.S.
Nataraja Pillai for having set the ball in motion. He also endorsed the statements made
by Pattom Thanu Pillai. Kesavan Nair revealed the finding of the Buch Committee with
regard to Trivandrum being the most suitable place for locating the High Court. The
statistics taken by them was astounding. The Committee also gave figures prevalent
as on 10 September, 1949.
52

The Buch Committee's arguments showed that they were definitely in favour of
locating the High Court at Trivandrum. The quality of the buildings here, the facilities
for accommodation and above all a continuous tradition dating back to 1882, weighed
in favour of Trivandrum. After having said all these things, the Committee instead of
arriving at the natural conclusion, held that the High Court had to be located at
Ernakulam so as to "respect the sentiments of the Cochinites'. Kesavan Nair reminded
the House of the need for the Central Government's permission for bifurcating or
relocating the High Court. Despite being in favour of the Bill, he preferred to follow his
party line as he was satisfied by the Chief Minister's assurance in this regard.
53


T.K. Diwakaran, the eminent leader of the RSP supported the move for referring the
Bill to a Select Committee. He commended the tone of moderation in the legislative
proposal by P.S. Nataraja Pillai and asked the treasury benches to respond favorably
in the interests of public convenience The then Minister for Home Affairs, T.M.
Varghese, reiterated the stand of the Government regarding the Bill, i.e., the promise
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of an alternative legislation in the next session. He also enumerated the need for
securing the nod of the Union Government in favour of any changes in the High Court.
The Minister did make a candid disclosure to the effect that the decision to locate the
High Court at Ernakulam was taken under the direction of the Central Government.
This in effect vindicated the statement made by P.S. Nataraja Pillai that the location of
the High Court at Ernakulam was decided upon as a result of political action.

Unfortunately, when the poll was taken, only forty-two members voted in its favour;
fifty-eight opposed it. As a result the motion was declared lost.
54

When the United State of Travancore-Cochin was under the Presidents rule, the
Parliament passed the Travancore-Cochin High Court (Amendment) Act, 1953. As a
result, the following was added to Section 6 of the Principal Act, provided that such
judges of the High Court, not exceeding three in number, as may from time to time be
nominated by the Chief Justice shall sit at Trivandrum and exercise, in respect of
cases arising in the district of Trivandrum, the jurisdiction and powers conferred by this
Act on a single judge or a Division Bench of 2 judges, as the Chief Justice may
determine.
55

On 14 June 1954, K.T. Koshi, the then Chief Justice, inaugurated the Bench of the
High Court at Trivandrum. In his address on the occasion he admitted that the judges
of the State High Court were against the very idea of a Bench away from their principal
seat. However, he added that they were yielding to the legislative enactment which
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91

had established a Bench of the High Court at Trivandrum.
56
Justices, K.S. Govinda
Pillai and T.K. Joseph were nominated to sit at the Trivandrum Bench.
57

During the second session of the Travancore-Cochin Legislative Assembly, the Chief
Minister Pattom A. Thanu Pillai moved for a supplementary grant of Rs. 1, 94,000
under the Demand of Administration of Justice. It took place on 31 July 1954. The
motion was seconded by P.K. Kunju. In it, Rs.6000 was set apart as salary for two
Government pleaders at the Trivandrum Bench of the High Court. It was contented by
many Congressmen in the House that there was no need for two pleaders at
Trivandrum and that one was just enough to handle the cases at the Bench. The Chief
Minister spoke on the matter by citing relevant data. The total number of Government
pleaders in the High Court was six. Out of them, two were then posted at the
Trivandrum Bench. There were one hundred and fifty and one hundred civil appeal
cases, respectively, at Ernakulam and Trivandrum. The number of criminal appeal
cases was fifty and thirty, at Ernakulam and Trivandrum, respectively. Earlier, there
was only a single Government pleader at the Trivandrum Bench, which heard about
forty percent of the cases in which the Government itself was a party. In the light of
such workload, the Chief Justice, and the Advocate General had strongly asked for
one more pleader to handle Governments cases before the Bench. As a result, R.
Narayana Pillai and one Mr. Aiyengar were appointed as Government pleaders. These
two persons were well known for their legal acumen.
58

98
92

Panampilly Govinda Menon, the leader of the Congress Legislature Party made few
observations regarding the matter. Out of the eight judges of the High Court, only two
were nominated to sit at the Trivandrum Bench. Both of them either sat together as a
Division Bench or heard cases separately as two single judges. Usually, it was the
Division Bench which heard cases involving the Government. Appeals from the
decisions of District and Sessions courts used to come before a single Bench.
However, the bulk of its work arose from the revision petitions and second appeals
from the munsiff courts to which the Government was not a party. Panampilly alleged
that the appointment of more than one pleader at Trivandrum was a wasteful
expenditure. While negating the criticism, the Chief Minister gave few more details
regarding the cases being fought by the Government in the High Court. One hundred
and fifty Division appeals were pending at Ernakulam, while over a hundred of such
cases were pending before the Trivandrum Bench. The number of criminal cases at
Ernakulam and Trivandrum were sixty and thirty, respectively. Fourteen criminal
appeals had already been filed at the Trivandrum, in addition to thirty similar cases,
brought from Ernakulam. In all, one hundred and eleven single appeals were
delegated by the High Court for hearing at the Bench in the Capital city. The fact that
the number of judges sitting at Ernakulam was equal to the number of Government
pleaders there was stressed by the leader of the House. Unfortunately the efforts of
the Government proved to be a futile exercise. The motion under Demand for
Administration of Justice was defeated in the Legislature. Only fourteen votes were
cast in its favour, while thirty three opposed it. Twenty seven stood neutral. The House
was adjourned after this event.
59


99
93

However, a new development came to the fore. Joseph Chazhikkat, an independent
member representing Ramapuram constituency moved a motion under Rule 43
expressing confidence in the then Ministry. Being a matter concerning the very
existence of the Government, it was given top priority by the Speaker. At this juncture
a point of order was raised by a legislator belonging to the CPI, Changarapilli P.
Narayanan Pootti. It was regarding the fact that the mover of the confidence motion
was neither a member of the ruling party not he belonged to any other party in the
House. Also by quoting Rule 40 (a) of the Assembly Rules, he reminded the House
that having seen a confidence motion hardly a year ago, another motion of the same
kind was not legally feasible. The previous confidence motion had taken place on 23
September 1953. Rule 40 (c) said, It shall not raise a question substantially identical
with one and which the Assembly has given a decision within the space of one year
previous The Speaker opined that as an independent member, the mover had
every right to bring a motion expressing confidence in the Government. The Chief
Minister expressed the view that the motion may be taken up just as if it were being
brought by a member of the party in power.
60


Joseph Chazhikkatt grew eloquent on the motion. He reminded the House that they
had passed the Budget for the year 1954-55 after having discussed it for the fifteen
days. The Budget had estimated an income worth Rs.17.5 crore. An expenditure of
Rs.18.75 crore was anticipated. The Appropriation Bill was also passed. The House
was accused of behaving in a childish manner by rejecting the supplementary grant of
Rs.1, 94, 000. The ground on which it was rejected was told to be hollow. The work of
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the PSP led Government was appreciated. The Cabinet was praised for practicing
austerity by having the ministers salary reduced from Rs.750 to Rs.500. The
Congress which was more or less the supporting opposition was accused of harassing
the Government by voting against a mere supplementary grant, after having voted for
the whole Budget. This was told to be nothing short of treachery and deception.
61


P. Viswambaran, a PSP legislator representing Nemon constituency, lashed out at the
Congress Party. He reminded the House that when Congress regimes were at the
helm in the State, Government pleaders were appointed mostly from the ranks of
Congressman who had failed to get elected to the Assembly. The earlier practice of
temporarily hiring eminent lawyers on very high fees, to argue particular cases for the
Government, was criticized. The PSP Government, however made a break with past
and appointed top legal brains as pleaders in the High Court.
62

The leader of the Congress Party, Panampilly Govinda Menon tried to portray the
crisis as a mere storm in a tea cup. He assured the House that his Party continues to
support the PSP Government. However, he advised the ministry to work cautiously as
it was a minority regime. He threw light on his two letters to the Chief Minister in which
he had assured the latter, the full support for running the Government, even after the
confrontation over the supplementary grants. Panampilly sought to negate the
misgivings regarding his partys stand over land reforms. P.K. Kunju, a Minister in the
PSP cabinet had alleged that the Congress was conspiring to overthrow the PSP
Government owing to the latters proactive attitude towards land reforms. Panampilly
101
95

quoted the circulars issued by the AICC President to all state units of the party, in
which the importance of land reforms was specially stressed.
63


M.P. Menon, a CPI legislator cast doubts on the necessity behind the confidence
motion, in the light of repeated assertions from the Congress leaders that they were
still backing the minority regime. He exhorted the PSP to abandon the reins of power
in order to avoid insults from the Congress. The member explicitly told the House that
the CPI was not going to vote in favour of the motion as their policies and those of the
PSP were in no way similar. The Governments policy of suppressing the Tamilnad
agitation and the transport workers strike were severely criticized. He claimed that as
his party was the effective opposition in the legislature, they were in no obligation to
rescue the Government.
64


T.K. Divakaran of the RSP opposed the confidence motion. He lashed out at the PSP
for aligning with the INC, thus subverting the anti-Congress mandate. The then
Government of Travancore-Cochin was accused of being hostile towards the activities
of labour unions. He compared the clash between the PSP and the Congress to the
storm in a tea cup. He ridiculed the PSP to be nothing more than a personal fief of
Pattom Thanu Pillai. The delay in the separation of the judiciary from the executive
was severely criticized. Congress regimes in other states had already accomplished it.
The Government was also accused of ignoring the services, by breaking the promise
of bringing in a hike in the pay of employees. T.V. Thomas too, spoke strongly against
Pattom Thanu Pillai, for having defected from the left-front after contesting the mid-
102
96

term elections in unison. The policies of the regime were also made a subject of
criticism.
65
Joseph Mundassery, a communist fellow-traveler informed the PSP that
they were ready to consider the matter of cooperation with the ruling dispensation on
the basis of specific conditions.
66
Finally the motion expressing confidence in the
ministry was put to vote and passed. Sixty one voted in its favour, while, forty opposed
it. One legislator, T.S. Ramaswami, stood neutral.
67

The TTNC always demanded the merger of Tamil speaking areas of the Travancore
region with the Madras State. Meanwhile, the PSP led by Pattom Thanu Pillai and a
section of the INC was opposed to any such initiative. In the elections of 1954, no
party secured a majority of seats in the State Assembly. This finally led to the
formation of a minority government led by the PSP, with the support of the INC.
Pattom Thanu Pillai, the Chief Minister was determined to defeat the designs of the
TTNC, which unleashed a violent agitation against the regime. Police dealt with the
excited agitators in a stern manner. 11 August, 1954, saw unprecedented violence
which resulted in Police firing. Kunjan Nadar, a prominent legislator of the TTNC was
taken into custody by the Police at Nagercoil. On 23 August, 1954, a petition was filed,
on behalf of Kunjan Nadar, before the High Court at Ernakulam questioning his arrest
and detention. After a preliminary hearing on 25 August a Division Bench consisting of
Chief Justice K.T. Koshi and Justice Kumara Pillai directed the respondents of the said
petition to show the cause why the petition should not be allowed. The High Court
issued directions for the prisoner to be produced before the Trivandrum Bench on 31
103
97

August 1954. Twelve similar petitions which were filed on behalf of the associates of
Kunjan Nadar were also posted for hearing at Trivandrum on the very same day.
68


The respondents to these thirteen petitions were the same. They were the Inspector
General of Police, the District Magistrate of Trivandrum and the United State of
Travancore-Cochin, represented by the Chief Secretary to the Government. The
arguments lasted three full days- 31 August, 2 and 3 September 1954. The petitioners
were represented by T.N. Subramania Iyer while the Advocate General Mathew
Muricken represented the respondents. The petitioners affidavit in support of the
petition claimed that the prisoner (A. Kunjan Nadar) was arrested for having committed
no crime and that he was not produced before any Magistrate, resulting in him being in
illegal detention. On the contrary, the counter affidavit on behalf of the respondents
clearly showed that the arrest was related to the prisoners involvement in two cases
involving several cognizable and non-bailable offences. These events were told to be
forming part of a series of acts of lawlessness committed on 11 August 1954. As the
dictator of Travancore Tamil Nad Congress which was holding 11 August as
Deliverance Day, Kunjan Nadar was accused No.1 in both the said cases.
69


The Court was informed of the fact that within twenty four hours of his arrest Kunjan
Nadar was produce before the Kuzhithura Stationary First Class Magistrate. He was
remanded to Police custody first for ten days, then for five days. On the expiration of
the period of the second remand, the Police had their charge-sheets laid in the two
said cases. Thereafter Kunjan Nadar was kept in custody as an under-trial prisoner.
70
104
98


The Counsel for the petitioner T.N. Subramania Iyer raised a number of objections
against the legality of the arrest and the validity of the detention. However, the Court
firmly stated that it was absolutely irrelevant to consider whether the arrest or the
detention up to the point of the magisterial order remanding the prisoner to custody as
an under trial was valid or not. Though the petitioners affidavit stated that the prisoner
was never produced before the Magistrate and that he was manhandled, the prisoner
had not filed an affidavit of his own supporting that of his wife, who happened to be the
petitioner.
71

Meanwhile, it had become clear that on 13 August 1954, Kunjan Nadar had moved for
bail. The bail application signed by him had no averment of him being illegally detained
or subjected to any physical violence. The said bail plea was rejected by the
Magistrate on 20 August 1954. Thereafter no attempt was made to take the matter
before a higher tribunal. The Advocate General urged that the petition be rejected on
the sole grand of the absence of material facts in the affidavit supporting it. The Bench
went to the extent of citing records which showed that free interview with the prisoner
had been allowed for his relations and friends, with the permission of the court. The
High Court refused to believe the contention that the wife of the prisoner was unaware
of the proceedings in the court. That the prisoner Kunjan Nadar himself was able to
take an application for bail on 13 August was taken as proof of the fact that there was
no impediment in him, making the motion himself. The facts of the case were told to
negate the averment that the restraint of the Police had prevented the accused from
105
99

making the motion himself. Despite having admitted to the substantial nature of the
above point, the High Court refused to dispose of the petition on that narrow ground
alone.
72

On the basis of several decisions of the erstwhile Federal Court and the Supreme
Court, the High Court opined that it was not necessary for the purpose of the said case
to examine whether the detention prior to the order under which Kunjan Nadar was in
custody on 31 August 1954 or the arrest which led to it, was valid or not. The need to
examine the validity of the order in force on 31 August was too stressed. Towards the
final stages of the argument T.N. Subramania Iyer laid emphasis on the point that the
accused persons, including Kunjan Nadar were sent by the Magistrate back to the
custody of the Police and not to judicial custody. However, the High Court considered
it to be a distortion of the true facts of the case. It was stated by the Bench, that the
character of the remand or the nature of the detention was not altered by the fact that
the Sub-Inspector had to keep the accused persons in Police lock-up. The Court noted
the fact that some districts or taluk centers in Travancore area had no separate Sub-
Jails which led to under-trial prisoners being kept in Police Stations of those regions.
The Court asserted that the remand since 26 August 1954 had been to judicial
custody.
73

Turning back to the pages of History, the High Court threw light on the relevant section
of the Criminal Procedure Code of Travancore as enunciated by Act V of 1067 M.E
(1892), Act VIII of 1117 M.E (1942) and Act V of 1908. It read as follows, Unless
106
100

when otherwise provided by any law for the time being in force, our Government may
direct in what place any prisoner liable to be imprisoned or committed to custody under
this code shall be confined. Rule I (a) of the rules promulgated by the Government of
Travancore on 7 March 1935 under section 59 of the Travancore Prisons Act of 1071
M.E (1895-96) had provided the following- subsidiary jails shall be the ordinary place
of confinement of persons committed to custody pending trial or preliminary
investigation before a Magistrate. Rule 2 (e) had stated In stations where there is no
subsidiary jails, prisoners of the clauses mentioned in clauses (a) to (e) of Rule (1)
shall be confined in the Police lock-up.
74


There was no subsidiary jail in Kuzhithura or any other place within the jurisdiction of
the Stationary First Class Magistrate of that place. There was also none within the
jurisdiction of the Sub-Divisional Magistrate of Padmanabhapuram who had remanded
to custody some of the prisoners in the companion cases. The High Court referred to
Rules which were issued under Criminal Procedure Code dated 12 November 1925.
Rule I of the said set of Rules read, The Local Magistrate shall be primarily
responsible for the well-being of remanded and short term convicted prisoners
confined in police station.
75
The notification which amended the above Rules, led to
remodeling of Rule I which became as follows, The local stipendiary Magistrate of the
lowest class shall be primarily responsible for the well-being of the remanded and
short term convicted prisoners confined in Police Stations; provided however that in
respect of under-trial prisoners who are involved in cases before the Sessions Court,
the Sessions Judge concerned shall be so responsible.
76
107
101


The High Court clearly pointed out the lack of proper facilities for detaining under trial
prisoners. It expressed the hope that the Government would make necessary
provisions in that regard. The Court stated that the Code of Criminal Procedure had
given the Government the right to direct at what place under trial prisoners were to be
confirmed. It went on to say that the provisions which were discussed above appeared
to be the only directions which were in force then. Accordingly, the arguments of the
counsel T.N. Subramania Iyer in that respect were negatived. Finally, the Bench
consisting of Chief Justice K.T. Koshi and Justice T.K. Joseph refused to hold that the
detention of A. Kunjan Nadar since 26 August 1954 had been illegal or irregular. The
allegations made in the affidavit of the petitioner, were dismissed on 20 September,
1954 and A. Kunjan Nadar was sent back to the custody of the Kuzhithura Stationery
First Class Magistrate.
77

After the initial debacle Kunjan Nadar again approached the High Court of the United
State of Travancore -Cochin. The purpose of the fresh petition was for the writ of
mandamus
78
in order to enable Kunjan Nadar himself to attend the session of the
State Legislative Assembly which was summoned to commence its sittings on 25
January 1955. It was argued on behalf of the petitioner, that it was his paramount right
to attend the proceedings of the Legislative Assembly. Though admitting that his
detention was under due process of law, the petitioner wanted it to be subordinated to
the right to attend the session of the Legislative Assembly. However, the counsel for
the petitioner did admit to the fact that the claim made by his client was not available to
108
102

a member of the House of Commons in the United Kingdom and that the petition was
based on the assumption that a wider privilege existed in India by virtue of Article
190(3) (a) and Article 191(1) (e) of the Constitution and Section 7(b) of the
Representation of People Act 1951.

Article 190(3)
79
provided that- If a member of a House of the Legislature of a State
(a) becomes subject to any of the disqualifications mentioned in clause(1) of Article
191 his seat shall there upon become vacant.

Article 191(1) said the following-
A person shall be disqualified for being chosen as and for being a member of the
Legislative or Legislative Counsel of a State-
(e) if he is so disqualified by or under any law made by Parliament.

Section 7 of the Representation of the People Act
80
states- A person shall be
disqualified for being chosen as and for being a member of either House of Parliament
or of the Legislative Assembly or Legislative Council of a State:
(b) if, whether before or after the commencement of the Constitution he has been
convicted by a court in India of any offence and sentenced to transportation or to
imprisonment for not less than 2 years, unless a period of five years or such less
109
103

period as the Election Commission may allow in any particular case, has elapsed
since his release.

The Court remarked that the arguments based on the above said provisions, were
devoid of relevance or substance, thus being fit for rejection. The judges added that
the grounds on which a disqualification might be incurred and seat vacated had
nothing to do with what the Court was called upon to decide, in the said case. The
present petition was told to be one concerned with the existence or otherwise of the
privilege or immunity claimed by the petitioner. The next argument taken up by the
petitioner counsel was based on Article 195(4)
81
which provided that-
If for a period of 60 days a member of a House of the Legislature of a State is without
permission of the House absent from all meetings thereof the House may declare his
seat vacant.

The substance of the argument was that the petitioner stood in danger of his seat
being declared vacant by the House, if he was not allowed to attend the impending
session of the Legislative Assembly. It was also told that the petitioner stood to lose
the allowance of Rs.10 per day if he does not attend the proceedings of the Legislative
Assembly. The Court opined that as long as the detention was legal, the danger of the
petitioner losing his seat or the certainty of his losing his daily allowance could not
form the basis of relief against the very normal or probable consequences of the
detention. Finally, the counsel for A. Kunjan Nadar pleaded for amending the order of
the High Court in which bail was denied to the petitioner. This was to enable him to
110
104

attend the session of the Legislative Assembly under Police escort. However the
Bench was of the view that such a prayer had to be sought within the framework of the
Code of Criminal Procedure, 1898 and that the petition moved could not be possibly
adjudged in that regard. As a result, the petition was dismissed by the Division Bench
consisting of Chief Justice K.T. Koshi and Justice M.S. Menon, on 7 January, 1955.
82
Later the TTNC leaders approached the Supreme Court and got their cases
transferred to the Mysore High Court. Soon, they were released on bail.

In the erstwhile Travancore State, the Judiciary was not separated from the Executive,
unlike the erstwhile Cochin State where it stood separated. Article 50 of the
Constitution of India had a directive for the States to separate the Judiciary from the
Executive. The United State of Travancore-Cochin took earnest steps to bring about a
uniform system throughout its realm. Initially, the scheme of separation was told to
take effect on 1 April, 1955.
83
However, it was delayed due to problems pertaining to
housing of new courts. The scheme took effect on 1 May, 1955.
84
As a result two
categories of Magistrates came into being. The Judicial Magistrates, who were brought
under the direct control of the High Court, dealt with the work related to the disposal of
cases. The Executive Magistrates performed purely administrative work. They were
Revenue Officers invested with the powers of Magistrate under the Code of Criminal
Procedure and had to preserve law and order within their respective jurisdiction.

The integration of Travancore and Cochin was based on the Covenant signed
between its Rulers. Article 21 of the Covenant had authorized these Rulers to exercise
111
105

the powers of suspension, remission or commutation of death sentences awarded by
courts. A person who was accused of murder was tried and awarded death sentence
by the Additional Sessions Judge of Trichur. He was kept in custody at the Central
Jail, Viyyur. The High Court upheld the conviction and confirmed the sentence while
the Supreme Court refused to interfere in the matter. Mercy petitions filed before the
President of India and the Rajpramukh of the United State of Travancore-Cochin
proved to be a futile exercise. Meanwhile the Superintendent of the Central Jail Viyyur
on 28-3-1955, addressed the sessions court for the issued of warrant fixing the date of
execution. It was issued on 29-3-1955 in which the Court fixed 6-4-1955 as the date
for execution. On 1-4-1955, the Superintendent informed the Court that the petitioner
had sent a mercy petition to the Maharaja of Cochin. The Superintendent requested
the court to intimate him as to whether the execution had to be stayed pending receipt
of orders on the said mercy petition. However, the court itself had no prior intimation
regarding the above mercy petition. Under such circumstances the Sessions Court
passed an order staying execution of the death sentence. On 30-5-1955, the public
prosecutor prayed for an order vacating the stay an execution by claiming that no
mercy petition lay to the Maharaja of Cochin.

While vacating the order staying execution of the death sentence the judge observed
that the judicial power of pardon guaranteed to the Maharaja of Cochin under Article
21 of the Covenant
85
did not come within the personal rights, privilege and dignities
referred to in Article 362 of the Indian Constitution. The Court affirmed that no mercy
petition lay to the Maharaja of Cochin.
112
106


The High Court fully agreed with the above verdict. The Bench consisting of Chief
Justice K.T. Koshi and Justice Kumara Pillai, explicitly stated that the powers of
suspension remission or commutation of death sentences retained by the Maharaja of
Cochin by virtue of Article 21 of the Covenant in respect of offences committed in the
territory of Cochin cannot survive the passing of the Constitution of India. After 26
January 1950, no power of sovereignty continued to vest in the members of the
princely order. The Bench made it clear that after the commencement of the
Constitution no individual or body or institution in India could exercise any executive
judicial or legislative power unless the Constitution confers it or countenance its
exercise. The counsel for the petitioner, K.K. Mathew had readily acceded to the
request of the High Court to appear as amicus curae in the case. He had contended
that the Covenant should be treated as law in force within the meaning of Article 372
of the Constitution. On that ground the counsel interpreted that the Covenant would
continue in force until altered or repealed or amended by a competent legislature or
other competent authority. On the contrary, the High Court was of the view that Article
372 had provided for the continuation of pre-constitution laws only subject to the other
provisions of the Constitution. The President and the Governor had the power to grant
pardon, reprieves or remissions by virtue of Article 72(1) and Article 161 respectively
of the Constitution. Article 238 read along with Article 161, conferred the said powers
on the Rajpramukh too.
86

113
107

When the petitioners counsel sought to uphold Article 21 of the Covenant by taking
refuge under Article 362 of the Constitution, the Bench squarely rejected the
contention. It was clearly stated that Article 362 had nothing to do with an executive
power like the suspension remission or commutation of a sentence passed by a
competent court. That Article of the constitution was told to be concerning itself only
with the guarantee or assurance given under such a Covenant or agreement as was
referred to in clause(1) of Article 291 with respect to the personal rights, privileges and
dignities of the Ruler of an Indian State. Dismissing the petition, the High Court held
that after the commencement of the Constitution, the Maharaja of Cochin could not
invoke the powers reserved in him under Article 21 of the Covenant.
87
This verdict was
delivered on 17 June 1955.
114
108


END NOTES

1. Buch Committee Report.
2. Proceedings of the Travancore-Cochin Legislative Assembly, 2
nd
session, Vol. ,
dt. 27 October, 1950, pp.502-4.
3. The Covenant
4. Ibid.
5. Proceedings of the Travancore-Cochin Legislative Assembly, 1
st
session, Vol.1,
dt. 6 August, 1949, pp.56-71.
6. Ibid.
7. Ibid.
8. Travancore Government Gazette No.52, dt.10/8/1948.
9. The Regulations and Proclamations of Travancore, Vol.6, pp.1167-1173.
10. 1949 KLT.27
11. Ibid.
12. Ibid.
13. The Regulations and Proclamations of Travancore, Vol.3, pp.208-259.
115
109

14. Writ is an instrument to utilize the Right to constitutional remedies, as
embodied in the Constitution.
15. The Acts and Proclamations of Travancore, Vol.1, pp.324-61.
16. 1949 KLT.77
17. Ibid.
18. The Regulations and Proclamations of Travancore, Vol.5, pp.568-81.
19. 1950 KLT.101
20. Ibid.
21. Ibid.
22. Travancore-Cochin Gazette Extraordinary, dt. 7/9/1950.
23. Travancore-Cochin Gazette, dt. 5/9/1950.
24. The Travancore-Cochin Code, Vol.1, pp.117-124.
25. 1949 KLT.33 (Pt.1)
26. 1950 KLT.1
27. Shorter Constitution of India, Vol.1, p.781;811.
28. 1950 KLT.439
29. Ibid.
30. Ibid.
116
110

31. Ibid.
32. Ibid.
33. Ibid.
34. Ibid.
35. 1950 KLT.392
36. Ibid.
37. Article 385 was repealed by the Constitution (Seventh Amendment) Act, in
1956.
38. Actually, Articles 379-391, were repealed in 1956.
39. 1950 KLT.372
40. Proceedings of the Travancore-Cochin Legislative Assembly, 1
st
session, Vol.5,
dt. 1 April, 1952, p.456.
41. Ibid., p.459.
42. Ibid., p.461.
43. Ibid., pp.463-66.
44. Ibid., pp.467-68.
45. Ibid., pp.470-71.
46. Ibid., pp.477-79.
117
111

47. Ibid., pp.482-84.
48. Proceedings of the Travancore-Cochin Legislative Assembly, 2
nd
session, Vol.6,
dt. 5July, 1952, pp.521-33.
49. Ibid.
50. Ibid.
51. Ibid., pp.539-52.
52. Ibid.
53. Ibid.
54. Ibid.
55. Travancore-Cochin Gazette, dt. 29/12/1953
56. 1954 KLT.27
57. Travancore-Cochin Gazette, dt. 15/6/1954.
58. Proceedings of the Travancore-Cochin Legislative Assembly, 2
nd
session,
Vol.11,dt. 31 July, 1952, pp.1595-99.
59. Ibid.
60. Proceedings of the Travancore-Cochin Legislative Assembly, 2
nd
session,
Vol.11, dt. 2 August, 1954, pp.1615-33.
61. Ibid.
62. Ibid.
118
112

63. Ibid.
64. Ibid., pp.1635-50.
65. Ibid.
66. Ibid., p.1664.
67. Ibid., p.1683.
68. 1954 KLT.71
69. Ibid.
70. Ibid.
71. Ibid.
72. Ibid.
73. Ibid.
74. The Acts and Proclamation of Travancore, Vol.10, Appendix, p.221.
75. The Acts and Proclamation of Travancore, Appendix, pp.1311-12.
76. The Acts and Proclamation of Travancore, Vol.13, pt.2, p.835.
77. Op.cit., 1954 KLT.77
78. Writ of Mandamus
79. D.D. Basu, Shorter Constitution of India, Vol.2, pp.1127-28.
80. S. Malhotra, Manual of Election Laws, pp.206.
119
113

81. D.D. Basu, op.cit., p.143.
82. 1955 KLT.211
83. G.O. No. CJ.3. 12614/4/CS dt. 15/3/1955
84. G.O. No. CJ.3. 12614/54/CS dt. 30/3/1955
85. The Covenant.
86. 1955 KLT.727
87. Ibid.











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114


CHAPTER-3
THE HIGH COURT OF KERALA


The State of Kerala was formed on 1 November, 1956, by virtue of the provisions of
the States Reorganization Act, 1956. Earlier, on 23 March, 1956, the President of India
had taken over the administration of the erstwhile United State of Travancore-Cochin.
This dispensation continued even after the formation of Kerala State. The President
assumed all functions of the Government of Kerala in addition to the powers vested in
or exercisable by the Governor. The powers of the legislature of the new State were
assigned to the Union Parliament. The operation of many provisions of the
Constitution pertaining to the State was suspended. References to the Governor and
to the Legislature of the State were to be construed as references to the President and
the Parliament, respectively. Article 356 of the Constitution of India was fully applied.
1
By virtue of section120 of the States Reorganization Act, 1956, the State Government
was empowered to adapt and modify certain laws, whether by way of repeal or
amendment, for facilitating the application of such laws in relation to Kerala. In
exercise of the powers conferred by the said section, the State Government introduced
the Kerala Adaptation of Laws Order, 1956.
2


121
115

Due to the States Reorganization, the posts in various departments in the areas
transferred to the Madras State ceased to be under the control of Kerala State. The
Kerala High Court inherited 3409 cases from the erstwhile High Court of the United
State of Travancore-Cochin and 1504 cases from the Madras High Court. Likewise,
the posts in the areas transferred from Madras came under the control of Kerala,
leading to changes in the cadre strength of the services under the latter. The
Government of Kerala took steps to fix the cadre strength of its officers. A three-
member committee was constituted to advise the Government on matters relating to
the integration of services in the judicial department. It was headed by Justice K.T.
Sankaran, of the Kerala High Court. The two other members were N.E.S.
Raghavachari, then Chief Secretary of Kerala and P.T. Raman Nair, the Special Law
Secretary. The recommendations of the said committee were accepted by the State
Government. Soon, a conference of judicial officers of Malabar and Travancore-
Cochin regions was held. It was presided over by the then Minister for Law, V.R.
Krishna Iyer. The conference discussed all aspects concerning the integration of
personnel in the judicial department. It was observed that there could be hardships to
certain category of personnel from Malabar who could have already got a promotion if
they had continued in Madras service and whose juniors had by then been promoted
there. The aggrieved personnel complained that they would have to wait for few more
years to get a similar promotion in Kerala. In order to mitigate this grievance the
Government of Kerala effected certain changes in its policy. Some vacancies were
exclusively created for giving due regard to the seniority of the aggrieved personnel.
3


122
116

Article 214 provided for a High Court for each State in India. A High Court has both
judicial and administrative functions. The judicial functions are to be performed by the
judges and cannot be delegated. The High Court conducts its judicial functions,
through the judges sitting in Single or in Division Bench. Very special cases are
considered by a Full Bench. The power of distribution of work in the High Court rests
with the Chief Justice and the work is distributed depending on the subject matter of
the cases. The constitution of sittings and work distribution is published daily. There
are all together 13 judicial sections in the High Court to deal with 50 types of cases,
from filing to issue of certified copy of judgements and orders. The cause list of cases
posted before different courts or chambers are also published daily and weekly. On
the contrary, administrative functions could be delegated or entrusted by authorization
to the ministerial staff. The Registry aids the judges in the discharge of their duties.
The High Courts are empowered to frame rules for the conduct of their business.
Article 226 of the Constitution conferred extraordinary powers on the High Court to
issue prerogative writs. There are no prescribed limits on the exercise of this
jurisdiction and it is left to the discretion of the High Court. Article 226 empowered the
High Court to issue writs, directions or orders in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari in cases of infringement of the
fundamental and legal rights of citizens. The writs issued by a High Court cannot run
beyond the territories subject to its jurisdiction. Moreover, persons or authorities to
whom the High Court is empowered to issue writs are to be amenable to the latters
jurisdiction either by residence or location within those territories. The High Court
cannot possibly direct an authority to violate statutory provisions; its power under
Article 226 is to enforce the law and ensure that the State and other statutory
123
117

authorities adhere to the law. Article 226 cannot be changed by ordinary legislation.
Nothing short of a Constitutional amendment could curtail the powers under this
provision. The jurisdiction of the High Court to enforce fundamental rights under Article
226 is akin to that of the Supreme Court under Article 32. The Union Parliament, by
virtue of Article 230, could extend the jurisdiction of a High Court to any Union
Territory. The application of this provision has placed the Union Territory of
Lakshadweep under the jurisdiction of the High Court of Kerala.
4


The appointment of the officers and servants of the High Court and the making of rules
governing their conditions of service, are under the purview if the Chief Justice of each
High Court. This is by virtue of Article 229 of the Constitution of India. The rules
framed under this provision require the approval of the Governor of the State. The
administrative expenses of a High Court including salaries, pensions and allowances
of employees are charged under the Consolidated Fund of the State. By giving
absolute control over its staff, the independence of the High Court is sought to be
maintained. The judges and staff of the High Court are protected from the interference
of the executive and the legislature. Wide powers have been given to the Chief justice
to conduct the administration of the High Court in an independent manner. A judge of
the High Court individually or all the judges sitting collectively, as the Full Court,
cannot alter the rules made by the Chief Justice. The latter himself appoints the
Registrar of the High Court; in addition to it, he is empowered to create posts and
grant premature increments to the servants of the High Court. He is the sole authority
who fixes the salary and other emoluments of the employees of the High Court. The
124
118

power to appoint does include the power to suspend, dismiss, remove or compulsorily
retire an employee of the High Court. The power of appointment invested in the Chief
Justice by Article 229, cannot be abridged by the Legislature. If the rules made by the
Chief Justice pertain to salaries, allowances, leave or pension of the employees, those
rules require approval of the Governor before it could be enforced. Such approval is
ordinarily granted. After approval, those Rules could not be questioned by anyone. If
the Rules made by the Chief Justice concern the conditions of service other than those
mentioned above, the need for Governors approval does not arise.
5


The High Court of Kerala was established on 1 November, 1956. One of the earliest
notification issued by the Chief Justice of the High Court, read as follows ..... every
person, who immediately before the 1st day of November 1956, was holding any post
or office in the High Court of Travancore-Cochin at Ernakulam and at the High Court
Bench at Trivandrum, shall from the first day of November 1956, in the absence of any
order to the contrary, continue of hold the same post or office in the High Court of
Kerala.
6
Another notification of 7 November, 1956, explicitly stated that the officers and
servants of the High Court of the erstwhile United State of Travancore-Cochin, were to
hold corresponding position in the Kerala High Court.
7
The above two notifications
clearly prove the fact that the Joint Registrar, who was in charge of Trivandrum
Registry under the Travancore-Cochin High Court Act, continued to hold the same
position and power in the High Court of Kerala, including that of accepting the cases
instituted.

125
119

Soon, on 12 December the Chief Justice by exercising the powers conferred by sub-
section (3) of section 56 of the States Reorganization Act, 1956, appointed Trivandrum
as a place where judges and division courts of the High Court might also sit to dispose
of such cases, which might arise from time to time, specified on that behalf by the
Chief Justice himself.
8
This very notification effectively curtailed the powers of the
Bench at Trivandrum, which henceforth lost the power of filing cases. The High Court
Bench at Trivandrum was relegated to the status of a mere Circuit Bench. After the
assumption of office, the first elected Government of Kerala, withdrew twenty two
cases registered in connection with the agitation for a High Court Bench at
Trivandrum.
9


On 28 September, 1957, one M. Subbayya Pillai presented a civil revision petition
against an order of the munsiff of Neyyattinkara before the Assistant Registrar of the
High Court at Trivandrum. Unfortunately, the petition was returned on grounds of it
being contrary to the notification issued by the Chief Justice on 12 December, 1956.
Being aggrieved, the petitioner brought the petition under Article 226, before the
Principal seat of the Kerala High Court, at Ernakulam, praying for the issue of the writs
of certiorari and mandamus. The High Court adopted a very strange and superfluous
stand. It declared that the Trivandrum Bench was not the High Court of Kerala. It said,
It is the judges and division courts of the High Court of Kerala and not the High Court
itself that sits at Trivandrum. This was against the letter and spirit of the notification
issued by the Chief Justice on 1 November, 1956, which had clearly stated that every
person holding any posts or office in the High Court of Travancore-Cochin at
126
120

Ernakulam and at the Trivandrum Bench of the same, were to continue in those posts
or office, in the High Court of Kerala. Thus, it is evident, that the Kerala High Court,
from the very beginning itself, had a full-fledged Bench at Trivandrum, having filing
powers too. The Joint Registrar of the Registry of the Travancore-Cochin High Court
Bench, at Trivandrum, continued to function as the Joint Registrar of the High Court of
Kerala at the Trivandrum Bench. Justice P.T. Raman Nair, while delivering this verdict
against M. Subbayya Pillai, failed to consider the notification of 1 November, 1956.
10


The Kerala High Court Bill was introduced in the Legislature on 24 August, 1957. It
was piloted by the then Minister for Law, V.R. Krishna Iyer. The Travancore-Cochin
High Court had transformed itself into the Kerala High Court. However, the jurisdiction
and powers of the High Court happened to be different in the Malabar area from those
in the Travancore-Cochin region. The powers of the Travancore-Cochin High Court
were derived from the Travancore-Cochin High Court Act. On the other hand, the
powers of the Madras High Court were conferred by the Letters Patent relating to it,
the Madras Appellate Jurisdiction Rules and the Madras Ordinary Jurisdiction Rules.
The Kerala High Court Bill was proposed as an initiative to rectify the anomalous state
of affairs, by unifying the jurisdiction of the State High Court. Intervening in the debate,
M. Narayana Kurup criticized the High Court for maintaining a colonial mentality in the
matter of court procedures. Despite the huge increase in the number of cases, the
judges of the High Court were enjoying 60 days vacation, annually. Even during
working days, judges were alleged to be sitting on the Bench, daily from 11 am to 5
pm only. For them, it was as though there were only five working days in a week. In
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the past, European judges had resorted to having long summer vacation on account of
them being unaccustomed to Indian climatic conditions. The Indian judges were
accused of blindly imitating their European predecessors. The former had no grounds
to make such pretence. M.C. Abraham and R. Raghava Menon asked the Government
bring in suitable amendment for clearly stating the location of the High Court. Similarly,
K. Hasan Gani requested the Government make suitable provision for holidays on
Muslim festivals like Ramzan.
11


The Minister for Law, V.R. Krishna Iyer told the House that the Government had only
just copied section 31 of the Travancore-Cochin High Court Act, pertaining to the
matter of holidays. It read as follows, "The High Court with the sanction of the
Government may adjourn for a period not exceeding sixty days for summer, not
exceeding seven days for Onam and not exceeding ten days for Christmas". The
Minister voiced the need for fixing a ceiling, in this respect. He also assured that the
normal holidays enjoyed by other officers of the Government could be enjoyed by
those in the High Court too. However, the Minister expressed helplessness in the
matter of fixing the location of the High Court. He quoted section 51 of the States
Reorganization Act in this regard. The said section entitled, Principal seat and other
places of sitting of High Courts, read as follows-
(1) The principal seat of the High Court for a new State shall be at such place as the
President may, by notified order, appoint.
(2) The President may, after consultation with the Governor of a new State, and the
Chief Justice of the High Court for that State, by notified order, provide for the
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establishment of a permanent Bench or Benches of that High Court at one or more
places within the State other than the principal seat of the High Court and for any
matters connected therewith.
(3) Notwithstanding anything contained sub-section (1) or sub-section (2), the judges
and division courts of the High Court for a new State may also sit at such other place
or places in that State as the Chief Justice may, with the approval of the Governor,
appoint.

The Minister for Law informed the Legislative Assembly that, the inclusion of any
provision fixing the Principal seat of the High Court in the Bill could make it liable to be
challenged as ultravires to the Constitution of India. The Bill was referred to the Select
Committee consisting of K. Govindankutty Menon, E. Chandrasekharan Nair, T.V.
Thomas, K.K. Viswanathan, K. Hasan Gani, and the Minister for Law himself.
12

On 3 March, 1958, the Kerala High Court Bill, as reported by the Select Committee
was taken into consideration by the State Legislative Assembly. At this juncture,
Pattom A. Thanu Pillai expressed his doubts regarding the Bill giving too much power
to single judges. The Bill had provided for the hearing and disposal of criminal appeals
by a single judge unless the sentences passed by the lower court, was one of capital
punishment or one with imprisonment for life. The jurisdiction of a single judge in the
case of civil appeals was fixed in excess of the limits that were imposed under the then
existing economic conditions. However, the Minister for Law, V.R. Krishna Iyer opined
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that the said provisions of the Bill were constructed after consultations with the Kerala
High Court. Resolutions passed at the Law Ministers Conference were also told to
have influenced the Bill. He affirmed that there had not been any wide departure in the
Bill, from the then settled or established practices in other States of the Indian Union.
He sought to assure the House that the question of restricting the powers of single
judges, could be taken up in the future after learning from the actual working of the
enactments regarding the High Court. The motion of Pattom A. Thanu Pillai in this
regard was put and lost.
13

The Law Ministers conference had expressed the view that the High Court should
work for two hundred and ten days and that the daily working hours must be
increased, in order to undo the general accumulation of arrears of cases.
Unfortunately, the Government was unable to inflict statutory limitations on the High
Court. Originally, there was no provision for holidays for Ramzan in the Bill. But, the
Select Committee had provided six days for Onam, eight days for Christmas and four
days for Ramzan, without disturbing the total number of holidays. This was deemed to
be a good gesture towards ensuring social harmony. The Kerala High Court Bill was
finally passed.
14


On 31 August 1957, the Government of Kerala appointed a committee under the
Chairmanship of Komattil Achyuta Menon, with the intention of making Malayalam as
the sole official language of the State. The Committee had recommended for the
continued use of English as the language in courts of law along with provision for
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translating judgements of the High Court into Malayalam for the benefit of litigants. The
judges of the Kerala High Court welcomed the idea of instituting Malayalam as the
language for administrative purposes. But, the then Chief Justice, K.T. Koshy,
demanded a 10-year moratorium on the proposed replacement of English. He did hold
on to the view that judgements had to be compulsorily in English. However, the Union
Government permitted the State of Kerala to use Malayalam in High Court
proceedings. The then Union Home Minister, G.B. Pant had spoken about it in the Lok
Sabha on 4-7-1958.

On 1 April 1958, the then Chief Minister E.M.S. Namboodiripad, moved a resolution in
the State Legislative Assembly, recommending the President of India, to establish a
permanent Bench of the High Court of Kerala at Trivandrum, by virtue of powers
vested in the latter, under section 51(2) of the States Reorganization Act. Gwalior,
Indore, Nagpur and Rajkot, each, were having a temporary Bench of their respective
High Courts, with filing powers, under section 51(3) of the States Reorganization Act.
Unfortunately, the Chief Justice of the Kerala High Court adamantly held the view that
the above Act did not permit him to grant filing powers to a Bench. This interpretation
was contrary to the stand taken by the Chief Justices of the High Courts of Bombay
and Madhya Pradesh. A temporary Bench of the Kerala High Court had been
functioning at Trivandrum since 12 December, 1956. Sadly, it was devoid of filing
powers. The Chief Justice was dead against granting filing powers to the Trivandrum
Bench. It was under such circumstances, that the State Government resolved to
initiate steps to pave the way for a permanent Bench of the Kerala High Court at
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Trivandrum. The Chief Minister made it clear that the people of Kozhikode and
Tellichery would not feel aggrieved at this or demand a Bench for their region as they
were formerly going to Madras, and that, now they had to resort to Ernakulam. The
Trivandrum Bench was one intended to cater to the needs of Trivandrum and Kollam
districts, alone.
15

The Resolution received the backing of legislators cutting across party lines. While
supporting the Motion, Ponnara G. Sreedhar declared that while the people of
Trivandrum were desirous of a Bench at the capital, they were not opposed to having
another Bench at some other part of the State. The hostile attitude of the Kerala High
Court towards aspirations of Trivandrum was criticized. M. Kunjukrishnan Nadar
reminded the House that the verdicts of the erstwhile Travancore High Court were
honoured not only by the then British Indian High Courts but also the Privy Council.
When that High Court ceased to exist, an intense agitation took place, in which the
people irrespective of caste, religion and political affiliation, participated vigorously.
Finally, the agitation was withdrawn on the basis of an undertaking by the Communist
Party to the effect that they would strive for the revival of the Trivandrum Bench, on
their coming to power. The Minister for Law was accused of having made statements
contrary to this declared policy, while being in NewDelhi.
16


Pattom A. Thanu Pillai briefly threw light on the history of the High Court at
Trivandrum. He referred to the evolution of the High Court from the Sadr Court. The
efforts put in by the Praja Socialist Party for amending the Travancore-Cochin High
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Court Act was narrated. The erroneous interpretation of the States Reorganization Act
by the Chief Justice of the Kerala High Court was thoroughly exposed. Pattom opined
that the matter was fit for reference to the Supreme Court of India, for an authoritative
interpretation, which, would be binding on the Chief Justice of Kerala. He even
remarked that it was a case better fitted for reference to the Supreme Court than the
Education Bill. Article 143 of the Constitution of India was quoted in this regard. The
Home Minister was told to have opposed the demand for Bench at Trivandrum on the
flimsy ground that it could induce the people of Calicut to make a similar demand.
Pattom Thanu Pillai justified the demand for Benches on grounds of public
convenience. He proposed the setting up of Benches at both Trivandrum and Calicut,
each having two judges, the rest, remaining at Ernakulam itself. He pitied the plight of
Kerala which remained as the only State in India that lacked the High Court or even
Bench of it, at the capital. He ridiculed the argument that the Courts prestige would
suffer if the judges sit in different places. The very validity of that argument was
challenged. Pattom declared that the prestige and dignity of the High Court did not
consist in the then eleven judges sifting together. He proposed the inclusion of
Trivandrum and Kollam districts and the region of Mavelikkara under the jurisdiction of
the Trivandrum Bench.
17

V. Sreedharan drew the attention of the House towards a statement made by the then
Union Deputy Home Minister, B.N. Datar, in the Parliament, when Kerala was under
the Presidents Rule. The Union Minister had categorically stated that the difference of
opinion among the members of the Consultative Committee, which was constituted to
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advice P.S. Rao, who officiated as the Governor of Kerala, obstructed the Central
Government from taking a favourable decision in this regard. While supporting the
resolution, C.G. Janardhanan opined that the industrial backwardness of the southern
region should have been ameliorated before deciding upon the shifting of the High
Court from Trivandrum. He claimed that the constitution of a Bench at Calicut would be
a burden on the State; this statement was severely condemned by M. Narayana
Kurup, as being unwarranted and uncalled for. Finally, E.P. Eapen expressed
immense pleasure in supporting the resolution as his Assembly constituency
(Trivandrum I) comprised the former seat of the High Court. He praised the sacrifices
made by Thundil Pachu Pillai, who had suffered imprisonment twice, for participating
in the agitation for the High Court Bench at Trivandrum. In the end, the resolution was
adopted by the House, unanimously.
18

On being directed by the President of India, the Governor returned the Kerala High
Court Bill to the State Legislative Assembly for the latters reconsideration. The Motion
to this effect was introduced in the House by the Law Minister himself, which, was
seconded by the Minister for Health, Dr. A.R. Menon. The President had given the
direction that clauses 3, 4,8,12 and 13, were not within the competence of the State
Legislature on the ground that these fell within item 78 of the Union List in the Seventh
Schedule of the Constitution of India. That item related to the Constitution and
Organization of the High Courts. The President and the Government of India, held the
view that the said clauses were ultravires. On, the contrary, the State Government
opined that the State Legislature was competent to include those clauses. Strangely,
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the Government of India had, previously, concurred with the view of the Government
of Kerala. The Law Department, the High Court and the Advocate General had upheld
the contention of the State in this regard. The Union Government had also informed
the State that the former was contemplating a legislation covering all the deleted
provision of the Kerala High Court Act.
19

M. Narayana Kurup had alleged that the Law Minister was making unnecessary
insinuations against the Central Government. This was countered by V.R. Krishna
Iyer, who claimed to be presenting the plain facts. It was also revealed that the Bill
which was passed by the House was actually drafted during the Presidents Rule in
the State. T.A. Thomman questioned the very need for bringing in the said Bill in the
light of the Central Governments intention to legislate in that regard. Arguing strongly
in favour of the Bill, the Law Minister pointed out various practical difficulties caused
due to the lack of a single unified High Court Act in Kerala. Various provisions in the
Letters Patent Act of Madras were different from those of the Travancore-Cochin High
Court Act, especially, the ones concerning the scope of second appeal, the power of
the Chief Justice to constitute a single Bench, the matters to be considered by Full
Bench etc. The Minister also stated that the Union law which was going to be
introduced would deal only with Constitution and Organization of the High Court.
Jurisdiction was told to be a State subject.
20


The Kerala High Court Bill had originally been passed by the Legislative Assembly
with fourteen clauses. It was intended to pass the Bill after deleting five clauses, which
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alone were declared objectionable by the President of India. Pattom A. Thanu Pillai
warned the House that the passing of the Bill would result in the total repeal of the
Travancore-Cochin High Court Act. Clause14 of the Kerala High Court Bill dealt with
the repealing of the above Act. This meant that the Kerala High Court Bill, if passed in
the modified from would lack provisions regarding the Constitution and Organization
of the High Court. Section 3 had dealt with the administrative control of the High
Court, while, Section 4 was concerned with the regulation of the business in the High
Court. Both of them were deleted. The Law Minister affirmed that the State Legislative
Assembly had the power to repeal the laws which it had enacted, However, he added
that the State Legislature was powerless to repeat or enact laws, relating to the
Constitution and Organization of High Courts.
21


On the suggestion of Pattom A. Thanu Pillai, V.R. Krishna Iyer, the Minister for Law,
moved an amendment to clause14 of the original Bill, which was renumbered as
clause 9. It sought to repeal only those provisions of the Travancore-Cochin High
Court Act, which related to the matters provided in the Kerala High Court Act in its
modified from. This was opposed by M.C. Abraham who stated that the very
provisions which were deleted would be retained in the Travancore- Cochin High Court
Act. P.T. Chacko observed that the object of deleting certain sections would be
defeated if the very same provisions were allowed to remain in other Acts, making it
liable to be objected to, by the President of India. He also opined that the State
Legislative Assembly was not competent to consider the above amendment. On the
contrary, V.R. Krishna Iyer held the amendment to be in order. Pattom Thanu Pillai
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reminded the House that the Travancore-Cochin High Court Act was still in force and
was being followed by the Kerala High Court. He stated that the deletion of a few
sections of the Kerala High Court Bill would not repeal the corresponding provisions of
the Travancore-Cochin High Court Act. The leader of Opposition opined that as the
House was not competent to legislate on the matter under its consideration, the proper
course for the Government would be to withdraw the Bill. T.A. Thommen advised the
Government to withdraw the Bill citing the Law Ministers statement itself to the effect,
that, the Central Government was intending to bring in a fresh legislation concerning
the High Courts. E.P. Poulose too expressed the same opinion. The Bill in its reduced
form had nine clauses only, of which, two or three, were of a substantial nature. Those
were the sections relating to the powers of the single judge and the Division Bench.
Beyond that, there was nothing substantial in the Kerala High Court Bill. Citing the
above facts, Pattom Thanu Pillai suggested that the existing law be left to operate until
the enactment of the new proposed law by the Union Parliament. Finally, the Bill was
passed with sixty three legislators voting in its favour while, fifty one votes were cast
against it.
22


On 23 March 1962, the Kerala Legislative Assembly, took the Kerala High Court
(Amendment) Bill for consideration, It was originally brought in by V.R. Krishna Iyer,
However on the anointed day he was absent from the House. Instead, P.
Raveendran, another legislator, was authorized to move the Motion for the
consideration of the said Bill. It sought to modify section 5 of the Kerala High Court
Act, which specified the conditions under which an appeal could be had before a
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Division Bench. The decision of a single judge by virtue of his original jurisdiction was
eligible to be considered by the Division Bench. However, cases decided by a single
judge using his powers under appellate jurisdiction, had to be certified as being fit for
appeal by the judge himself, in order to make it eligible for the consideration of the
Division Bench. The Kerala High Court Act did not specify these matters. These were,
in fact, based on Articles 226 and 227 of the Constitution of India. Article 227 remained
as an obstacle in the way of instituting appeal against the verdict of a single judge. An
appeal against such a decision of Justice C.A. Vaidialingam was dismissed by a
Division Bench consisting of Justices, T.K. Joseph and M.S. Menon. A relevant portion
of decision read as follows- It must follow that in cases where a single judge exercises
his jurisdiction under Article 227 of the Constitution, a jurisdiction which can in no
sense be considered as original, no appeal will lie from his judgment or order and that
this appeal which is from a judgement under Act 227 of the Constitution should be
dismissed. The High Courts of Allahabad and Madras, had earlier opined that the said
jurisdiction which was involved was revisional jurisdiction and not the extraordinary
jurisdiction of High Court under Article 226 of the Constitution.
23

The Bill intended to eliminate this handicap posed by Article 227 by making special
provisions in the Kerala High Court Act. The legislator informed the House that the Bill
was in tune with the demands raised by the Bar Associations of Calicut, Ernakulam,
Tellichery and others. He also portrayed the negative attitude of Government towards
Private Members Bills. The attention of the House was drawn to two important Private
Members Bills which were passed by their respective legislatures. These were the
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Parliamentary Proceedings Protection of Publication Bill (1956) by the late Feroze
Gandhi in the Lok Sabha and the Prohibition of Bigamy Bill in the Madras Legislative
Assembly by Kaleswara Rao. As a member of the Madras Legislature, V.R. Krishna
Iyer himself, had successfully got an amendment to the Malabar Tenancy Act, passed.
Citing these precedents, P. Raveendran made a passionate appeal to the treasury
benches to support the Bill. He also reminded the Minister for Law, K.
Chandrasekharan that the latter too, had once brought in a Private Members Bill.
24

The Government however, did not extend support to the said Bill. The Minister for
Law, K. Chandrasekharan, stated on the floor of the House, that the exercise of
jurisdiction by a single judge of the High Court was by virtue not of appellate
jurisdiction but revisional jurisdiction. A single judge of the High Court was always
found to sit in revision over orders passed by subordinate court, and when once a
revisional jurisdiction has been provided for, there was no provision for appeal from
that order passed in revision. It was only with the consent of the judge that the matter
could be canvassed before the Division Bench. The Minister claimed that the
provisions present in section 5 of the High Court Act were adequate enough. He also
opined that the demand for an appeal to a Division Bench even when their High Court
exercises revisional jurisdiction, was prima-facie unnecessary. He did state that the
then existent cycle of appeals was sufficiently large and that the High Court and the
Advocate General needed to be consulted, on the matter.
25

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133

The discussion on the Kerala High Court (Amendment) Bill, resumed on 6 April, 1962.
The originator of the Bill, V.R. Krishna Iyer, himself spoke for the Bill. He told the
House that the clauses contained in the Bill were simple, straight forward and
undeniably necessary. He expressed surprise over the opposition to the Bill. The
House was apprised of the support for the said Bill from various quarters like the
Kerala High Court Advocate Association and various District Bar Associations, etc.
Even the Advocate General of the State, was told to have agreed with the provisions
of the Bill, almost in its entirety, barring same minor matters. In this respect, V.R.
Krishna Iyer narrated his personal experience in the High Court. Once when he was
arguing a case in a first appeal, the absence of provision for appeal against the single
judges decision was encountered. The judge himself was told to have enquired
whether there could not be an amendment to the High Court Act. This problem was
absent in Madras, Bombay and Bengal as their respective High Courts had provided
for appeals in such situations. The former Law Minister remarked that there was a
moral obligation on his part to bring the proposed measure, because, it was he who
had piloted the Kerala High Court Bill of 1959.
26

Stalwarts in the legal fraternity did appreciate the legislative initiative of V.R. Krishna
Iyer. They included Thaikad Subramonia Iyer, P.K. Subramonia Iyer, K.P. Abraham,
Kalathil Velayudhan Nair, K.V. Suryanarayana Iyer, P.K. Kuttikrishna Menon and such
other legal luminaries. In the course of the discussion, a serious anomaly was pointed
out by V.R. Krishna Iyer. He stated that when the suit was large and the subject matter
and the stakes were heavier, the logic was that there should be a larger right of
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appeal. The reality, he felt, was to the contrary. He lamented that Kerala was the only
State in India where the less important suits had many appeals, even a spiral of
appeals, while, the more important ones had not much right of appeal. The litigant and
the lawyer were found to regard Articles 226 and 227 as covering fairly the same
ground. The House was informed that from 1959 onwards, appeals against the orders
under Article 227 by a single judge were being entertained by the Kerala High Court.
However, it was in early 1962 that a Division Bench of the Kerala High Court held that
Article 227 vested only a supervisory jurisdiction and not original jurisdiction. As a
result, the right of appeal which was hitherto enjoyed by the litigants was taken away.
V.R. Krishna Iyer concluded his speech by stating that the Bill was neither political nor
economic, but a practical arrangement for the exercise of jurisdiction by the highest
court of the State, for the benefit of the litigant public. However, his initiative was not
successful. Only thirty three legislators favoured the consideration of the said Bill,
while, forty five opposed it.
27


On 11 September 1963, the Kerala Legislative Assembly witnessed the introduction of
a Motion for ratification of the amendments to the Constitution of India which was
proposed by virtue of the Constitution (Fifteenth Amendment) Bill 1963, as passed by
both the Houses of Parliament. The motion was brought in by the then Minister for
Home Affairs, P.T. Chacko. It was seconded by his colleague, E.P. Poulose, who held
the charge of Food and Agriculture. The Bill sought to make charges in chapter VI of
part 5 and chapter V of part 6 of the Constitution. It was mandatory under Article 368
of the Constitution, to have such a Bill ratified by one half of the State Legislatures.
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The Bill mainly dealt with matters regarding the age of judges in the High Court, the
authority to determine the age in cases of dispute, the transfer of judges of the High
Court, the compensatory allowance that may be paid to such judges and the question
of jurisdiction of the High Court under Article 226 of the Constitution, etc. The Bill also
proposed to increase the retiring age of the judges of the High Court from 60 to 62. It
also sought to make provision for the appointment of ad hoc judges.
28

Answering a query from C. Achutha Menon, the Minister justified the proposal for
inducting ad hoc judges, as the easiest way for the expeditious disposal of the
business of the High Courts and even the Supreme Court. Occasions like the
temporary disability of a judge due to illness and the occasional increase in the
pressure of work requiring its early disposal, were cited in defense of the Bill. The
provision in the Constitution for ad hoc judges was resorted to many times with regard
to the Supreme Court. The new Bill sought to have a similar provision regarding the
appointment of ad hoc judges in the High Courts. The proposal for on increasing the
retirement age of judges was criticized by E.P. Gopalan. He pointed out that, while the
Central and State Government employees retire at 58 and 55 respectively, the judges
alone were pampered by increasing their retirement age. It was asserted that unlike in
many other sectors, there was no dearth of legal talent in India. The need for younger
brains in the Bench was expressed. He however supported the practice of transferring
judges from a State High Court to another.
29


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K. Chandrasekharan stressed on the need for mechanism for the purpose of
determining the age of the judges who were already appointed and who were going to
be appointed in the future. He described the whole situation as not only delicate but
also an embarrassing one. The then existing procedure relating to the appointment of
a judge was elaborated. It was for the Chief Minister, who with the consent of the Chief
Justice, to send the name of a person to the Governor, who in turn was to send that
information to the Centre. The Union Government, having accepted the nomination,
passes on the name to the President of India. Later, the Chief Secretary requests the
person concerned to send up his materials or records, with regard to his age. It was
suggested that the Chief Justice of the State High Court be made responsible for
verifying the credentials of a prospective judge. K. Chandrasekharan opined that,
instead of ad hoc judges, additional judges should be appointed as the litigation was
steadily increasing. However, the Member favoured the appointment of ad hoc judges
on the illness or some other inconvenience of sitting permanent judges. The likeliness
of ad hoc judges being insincere to their task was also raised in the House. In the light
of ever increasing volume of litigation, the Government was advised to appoint more
additional judges.
30

K. Balakrishna Menon and P. Balachandra Menon opposed the move to increase the
retirement age of judges. They objected to the discrimination against the other judicial
officers in this regard. The conservatism displayed the courts was attributed to the old
age of the judges. They also considered the nomination of ad hoc judges as being
against all democratic norms. The possibility of abuse of power by the ruling party was
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foretold in the House. C. Achutha Menon threw light on the intolerance shown by
judges towards opinions criticizing their conduct. When the then Governor of Bihar,
Anantashayanam Aiyengar happened to make a comment on them, the judges
retaliated by passing a resolution against it. The judges, alone were told to be enjoying
a virtual immunity from criticism. Citizens of the India were free to criticize Government
servants, politicians, Governors and even the President, but not the judges. Achutha
Menon alleged that the move for increasing the retirement age of judges was due to
the pressure exerted by the latter on the Government. The Minister for Home Affairs,
P.T. Chacko, informed the House that it was not competent to make any amendment
to any of the provisions in the Bill. It was told to be only a motion for ratification of a Bill
that had already been passed by the Parliament. Finally the House adopted the
resolution.
31


The third session of the Kerala legislative Assembly, in 1971, saw a Resolution for the
establishment of a Bench of the Kerala High Court in Trivandrum. This initiative by M.
Kunjukrishnan Nadar, on 13 August, 1971, aimed at inducing the then Government to
initiate steps for bringing in a Bench possessing filing powers, in the State capital. The
learned member threw light on the history of the High Court of Kerala. The loss
sustained by Travancore region on account of the merger with Cochin and the
subsequent advent of Kerala State, was amply illustrated. The House was reminded of
the fact that the regime led by P.S. Rao, who initially tried to suppress the agitation for
High Court Bench in 1956, was compelled to concede the demand of the agitators.
This had resulted in the formation of a Circuit Bench at Trivandrum. The State
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Government was spending about 20 lakh rupees, annually, for conducting its cases at
Ernakulam. Kerala was the only State in India which did not have a High Court or a
Bench of it, in the capital city. Many legislators, while supporting the demand for a
Bench at Trivandrum pleaded for a similar arrangement at Kozhikode, too.
32
The then
Chief Minister, C. Achutha Menon informed the House that the opposition from the
High Court was an obstacle in the path of establishing a Bench away from Ernkulam,
the seat of the High Court, in Kerala. However, he assured that appropriate steps were
going to be taken to persuade the Central Government to establish a Bench with filing
powers at Trivandrum. On this assurance of the Chief Minister himself, M.
Kunjukrishnan Nadar withdrew the Resolution.
33


Justice Satish Chandra Misra was the chairman of the Central Office Language
(Legislative) Commission. On 16 November, 1971 he met the Chief Minister, C.
Achuta Menon and discussed the need for taking early measures for implementing the
programme of introducing Malayalam as the language of the subordinate courts in
Kerala. The former had earlier held discussions with K.P. Ramunni Menon (Member of
the Central Commission), A. Madhavan (Member of the State Commission), the Chief
Justice and the judges of the State High Court, regarding the feasibility of introducing
Malayalam in the subordinate courts. Citing the provisions of section 137 of the Code
of Civil Procedure and section 558 of the Code of Criminal Procedure, the State
Government was advised to issue notification to enable judicial officers to render
judgments and orders in Malayalam and also to enable lawyers to argue their cases in
Malayalam. Many of the northern States had already taken steps to introduce their
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regional language in the subordinate courts and this measure was warmly welcomed
by the people of those States. The Madras Rules of Practice had provided that
arguments were to be in the language of the area where a court was situated and that
special permission was compulsorily required for anyone who desired to argue in
English. Justice Misra stressed the need for stepping up the work of the State
Commission in order to make more Acts available to the public in Malayalam
language. It was suggested that lawyers and such other qualified persons be entrusted
with the drafting of the translations, on a piece-rate basis. The State Government
pursued the matter eagerly. The possibility of immediately switching on to Malayalam
in all subordinate courts of the State was examined. The idea was to enforce the said
plan from 26 January, 1972 onwards. Soon, the Government sought the views of the
High Court in this regard. Responding to it, the latter opposed the very suggestion for
the introduction of Malayalam as official language from 26 January, 1972. The
Registrar of the High Court wrote that the said plan was not in the interests of
administration of justice and not feasible. Meanwhile, the Director of the State Institute
of Language had voiced the need for a declaration that except under inevitable
circumstances, all court proceedings, orders and judgments had to be in Malayalam.
34


The Chairman of the Official Language (Legislative) Commission had advised the
Government to make a declaration to the effect that Malayalam and English were
deemed to be the languages to be used in all subordinate courts. However, the High
Court felt that the introduction of Malayalam would have to be in stages. While
objecting to the proposal to have the orders and judgments of courts in Malayalam, the
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High Court was not averse to have the other proceedings in the regional language. As
a prelude to the introduction of Malayalam, the Government was told to make statutes
and law books, available in that language along with changing the medium of
instruction in the law colleges to Malayalam. That, the lions share of the literature in
law was in English, was shown to be an impediment in way of a sudden switch over to
the local language. The High Court was the view that writing judgements in Malayalam
would consume more time as it might not be possible to dictate the judgements to the
shorthand writers, leading to the presiding officers themselves having to write out the
judgements. The language of the High Court was English. In the light of this fact, the
High Court anticipated difficulty when judgements written in Malayalam were to be
considered for appeal before the apex court of the State. It was claimed that the
judiciary was ill-equipped for a transition (in the realm of language) for want of proper
text books and translations of technical expressions, in Malayalam. The insufficient
strength of the judiciary and the problem of mounting arrears, were too cited as the
reasons for opposing the introduction of Malayalam.
35

The High Court observed that both English and Malayalam were in use in the
subordinate courts and that no purpose was going to be served by a fresh declaration
as suggested by Justice Sathish Chandra Misra. The High Court affirmed that such a
declaration would not compel a court to write judgements in Malayalam. The Director
of the State Institute of Language had prescribed a declaration to the effect that except
under, inevitable circumstances, all court proceedings, orders and judgements had to
be in Malayalam. The High Court considered it to be beyond the scope of section 137
147
141

of the Code of Civil Procedure and section 558 of the Code of Criminal Procedure. The
State Government was told that such a declaration could not at all dictate the use of a
particular language in court. It was again asserted that the insistence on writing
judgements and orders in Malayalam, as proposed, would neither be feasible nor
condusive to the public interests. The Government was advised to implement the
switchover in due course, gradually but not in an abrupt manner. The High Court did
stress on the fact there was no bar on the use of Malayalam, except in judgements
and orders the subordinate courts. In the region of Travancore-Cochin, decrees were
written in Malayalam, while the courts of Malabar still used English in this regard.
36


The Official Language Acts passed by the Kerala Legislative Assembly designated
both English and Malayalam as the official languages of the State. In 1973, the State
Government notified that civil and criminal courts of the State could use Malayalam
also, for writing judgements, other than English. After the passage of the 1973 Act, the
State Government took up the issue of permitting judges to write their judgements in
Malayalam. Section 1 B of the Act had empowered the Government to issue
notification directing that Malayalam or English shall be used for official purposes.
Soon notifications were issued in the Kerala Gazette of 11 May, 1973, permitting all
civil and criminal courts, which were subordinate to the High Court, to use either
English or Malayalam for writing judgements and other proceedings. The Official
Language Act had not made it obligatory on the State Government to consult the High
Court before issuing directions with regard to the language to be used in courts.
However the High Court was consulted in this regard. Orders issued from time to time,
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142

for facilitating the use of Malayalam. Sadly the rules lacked the initiative to push
through reforms in this regard. In 1978, the State Government prepared a 5-year
action plan for promoting Malayalam as the official Language. It was resolved to have
Malayalam as the sole language of the courts from 1980-81 onwards.

The Justice K.K. Narendran Committee was authorized to enquire into the prospects
of having the judgements and proceedings of all the courts of the State, including that
of the High Court, in Malayalam. It was constituted on 24 May, 1985. The Committee
recommended the need for a law journal in Malayalam containing short-notes of
judgements of the Supreme Court and the Kerala High Court. The main argument
against the use of Malayalam was the alleged lack of law books in that language.
However, the Committee noted that the Official Language (Legislative) Commission
had already published 171 central laws including those pertaining to civil and criminal
courts, in Malayalam. State laws were too available in Malayalam. The need for an
updated glossary was too stressed. The Government was asked to provide for more
typewriters in Malayalam. The Committee threw light on the need to have Malayalam
as the medium of instruction in law colleges of Kerala. The model successfully
adopted by many States such as Uttar Pradesh, Rajasthan, Madhya Pradesh, Bihar,
Haryana and Gujarat was cited in this respect. The feasibility of imparting training to
the judges of the High Court, in handling Malayalam, was examined. The Committee
seriously considered testing of Malayalam language proficiency of recruits to the posts
of munsiffs & magistrates. A three- language formula was at work in Kasargod District.
Pleadings and arguments were done in English or Kannada or in Malayalam. The
149
143

examination of witnesses too was on similar lines. Orders and decrees were invariably
in English.
37


In 1996, the Government of Kerala had sent a proposal for establishment of a High
Court Bench in the State Capital. On receipt of the proposal, the Centre asked the
State Government to convey the views of the Chief Justice of the Kerala High Court
and the Governor, regarding the proposal. On 10 December 1999, the then Chief
Minister had conveyed to the Centre that the opinion of the Chief Justice would be
obtained and forwarded to the Centre, at the earliest. This did not materialize at all.
Later, on 25 June 2004, the then Chief Minister of Kerala reminded the Centre about
the proposal. The Union Government again stressed on the need to obtain the views
of the Chief Justice.
38

On 9 November 1998, at a function organized by the Trivandrum Bar Association, the
then Chief Justice of Kerala High Court, Justice Om Prakash, spoke in favour of the
demand for High Court Bench in the State Capital. The then Member of Parliament
and the Member of State Legislative Assembly, representing Trivandrum, were
present in the venue. The Chief Justice stated that the demand for a Bench at the
Capital was genuine and that it would help the people to get justice at low cost.
39

There was a renewed effort to get a Bench of High Court in the State Capital. A
memorandum was submitted in this regarded to the then President of India, A.P.J.
Abdul Kalam, by concerned citizens of Trivandrum.
40
150
144


In 2003, the State Government declared that it would continue to press the High Court
for clearance to set up a Bench in the Capital. Meanwhile, the High Court had sought
details of cases and the relevant expenditure being incurred by the Government for
conducting cases at the formers principal seat at Ernakulam.
41
In May 2003, the State
Government informed the Chief Justice that the building and infrastructure for the
Bench were already available and hence, requested the latter for a favourable
recommendation. In January 2004 the Chief Justice responded by saying that such a
Bench would neither help in improving the dispensation of justice nor would it be in
public interest.
42
The Department of General Administration had between 1 April 2006
and 31 March 2007, spent 64.42 lakh rupees for conducting cases before the High
Court, at Ernakulam. Other departments of the Kerala Government had too spent a
considerable amount of their financial resources on meeting expenses concerned with
litigation at the High Court.
43

As the agitation began to gain momentum, the Union Law Minister, H.R. Bharadwaj
declared that the opposition from the Kerala Chief Justice was the obstacle in the way
of sanctioning a Bench at Thiruvananthapuram. He clearly stated that Central Law
Ministry was, otherwise, not averse to the idea of a Bench at Thiruvananthapuram.
44

However, this contention was not accepted by the Thiruvananthapuram Bar
Association. Its President, C .K. Sitaram opined that the President of India was free to
establish a High Court Bench in any State irrespective of the opinion of the Chief
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145

Justice or Governor of the concerned State. He added that consultation in the States
Reorganization Act, 1956 was being wrongly construed as consent.
45

On 3 February, 2008, the Law Minister of Kerala affirmed that the demand for setting
of a High Court Bench in the State capital would be achieved at any cost. He stated
that the demand was being turned down in utter disregard to the political consensus in
its favour. The unanimous resolution passed by the Kerala Legislative Assembly in this
regard was also highlighted. The Minister made these comments while inaugurating
the 14
th
annual meeting of the Federation of Residents Association at
Thiruvanthapuram. Speaking on the occasion, the former Union Minister, O. Rajagopal
expressed the view that the State Cabinet should pass a resolution demanding a High
Court Bench.
46
The mounting agitation led to many tense moments in the premises of
the District Court at Thiruvananthapuram. Lawyers, who staged a protest march in the
Court premises, were arrested by the Police. Talks held between the District judge and
the representatives of the Bar Association remained inconclusive. Lawyers were firm
in their demand for the removal of the policemen from the Court premises.
47


Meanwhile, on 12 February, 2008, the Kerala High Court Advocates Association
passed a resolution opposing the setting up of a Bench of the High Court at
Thiruvananthapuram. They portrayed the demand as being childish. The Association
opposed the very idea a Bench, anywhere in Kerala, other than the principal seat at
Ernakulam.
48
On 13 February, 2008, lawyers in Thiruvanantapuram boycotted the
courts in protest against the hostility of the High Court towards the establishment of a
152
146

Bench at the State Capital. The attitude of the Court was strongly condemned.
Meanwhile, the agitators ensured the eviction of lawyers, who were not members of
the Bar Association, from the court premises. However, the judges conducted their
sittings even in the absence of lawyers. Addressing the lawyers, the President of the
Bar Association, C.K. Sitaram warned the authorities against invoking obsolete laws
regarding contempt of court in order to suppress the agitation.
49
From the very next
day onwards, the agitation took the form of an satyagraha in front of the District Court.
It was to continue till the demand of a Bench was met. Lawyers wore black badges, as
a mark of protest against the High Court.
50



It was argued that the State Government could save plenty of funds which were being
spent on conducting its litigations, which could well be conveniently done, if it were
before a Bench of the High Court at Thiruvananthapuram. Therefore, a Bench at the
Capital city would help in saving tax payers money. Moreover, the issue was not a
newly conceived one. A Bench had existed there, in the past. The popular demand is
only for its revival. Such a Bench would definitely benefit indigent prisoners who were
finding it hard to conduct their litigation before the High Court. Government
Departments were likely to benefit from having their cases heard before a Bench at
Thiruvananthapuram. They could save the expenditure in the name of allowances to
officials for enabling them to appear before the High Court at Ernakulam. People of
Thiruvananthapuram, Kollam and Pathanamthitta districts, could well be considered as
the prospective beneficiaries of the proposed High Court Bench.

153
147

The Law Minister of Kerala condemned the negative attitude of the High Court towards
the demand for a Bench with filling powers. He urged the Central Government to take
a decision in this regard by invoking section 51(2) of the States Reorganization Act.
51

Earlier the Minister had laid the blame on the Union Ministers from Kerala for not
having acted suitably for sanctioning a Bench of the High Court at
Thiruvananthapuram.
52
The Law Minister stated that the State Government had
already done everything on its behalf for the proposed Bench and that the ball was in
the Centres court. The Kerala Legislature Assembly had passed resolutions to this
effect more than once.
53
Unfortunately, nothing much was achieved beyond this.
54

Moreover, the State Cabinet which met on 16 August, 2006 had brought the very
same matter to the notice of the Chief Justice of the Kerala High Court.
55
On 25
February, 2008, all courts in Thiruvananthapuram district witnessed a boycott by the
lawyers and bench clerks. Courts in Vanchiyoor, Nedumangad, Attingal, Varkala,
Neyyattinkara and Kattakkada, as well as the Family Court and the Lok Ayukta were
affected. Protest marches were taken out on the premises of all the courts. The Local
Self Government Tribunal too, was affected by the agitation.
56


The Chief Justices of the Kerala High Court had been for quiet sometime, hostile to
the idea of a Bench at Thiruvananthapuram. Justices, K.T. Thomas, Jawaharlal Gupta,
N.K. Sodhi, V.K. Bali and H.L. Dattu had consistently taken the stand that a Bench at
the Capital city of the State was neither practicable nor feasible. In December 2007,
the Chief Justice in a letter to the Chief Minister had rejected the request of the latter in
this regard, without specifying the reasons.
57
Meanwhile, the then Union Law Minister
154
148

H.R. Bharadwaj declared that the Bench could be established only with the consent of
the Chief Justice of the Kerala High Court. This information was given to the then
Member of Parliament, Varkala Radhakrishnan by the Union Law Minister himself in a
letter dated 20 February, 2008. This was in response to a question raised by the
former, in the Lok Sabha. The Law Minister quoted a judgement of the Supreme Court
dated 24 July 2000, in which the apex court opposed the establishment of a Bench in
the light of the hostile stand of the then Chief Justice of Karnataka High Court.
58
Later,
the situation in Karnataka underwent a sea change. Circuit Benches were established
at Dharwad and Gulbarga in 2008 and 2009, respectively. As early as in 2004, the
Madurai Bench of the Madras High Court had started functioning. The obstacles in
Kerala towards the realization of a Bench remain as such.

The jurists of Kerala had attained great heights in their career. They were noted for
their learning and wisdom. The first Chief Justice of the High Court of Kerala was K.T.
Koshi. He began his judicial career in 1944, when he was appointed judge of the
Cochin High Court. On the eve of the formation of Kerala State, K.T. Koshi was the
Chief Justice of the High Court of the United State of Travancore-Cochin. He retired
from service in 1959. He was succeeded by K. Sankaran who had his beginnings in
the judicial service of the Travancore State. After having worked as District judge and
Secretary to the Government of Travancore, he was elevated to the judgeship of the
Travancore High Court, in 1946. He also served as the President of the Franchise
Delimitation Committee and as the Special Officer under the Adult Franchise Act. In
1954, he was the one-man Commission which enquired into the violent incidents
155
149

during the TTNC led agitation. S. Velu Pillai belonged to a family of jurists. His father
G. Sankara Pillai and grand-father A. Govinda Pillai were judges of the Travancore
High Court. Since 1948, he served as District judge. In 1959, S. Velu Pillai became
judge of the Kerala High Court. Women have achieved recognition in the judicial arena
of Kerala much earlier. The first ever woman judge in India was Anna Chandy.
Commencing her judicial innings as munsiff, in 1939, she rose to become District
Judge. She reached the zenith of her career on becoming a judge of the High Court of
Kerala, in 1959. C.A. Vaidialingam was the first judge from the Kerala High Court to be
made a judge of the Supreme Court of India. T.K. Joseph and M.S. Menon were
judges of the Kerala High Court ever since its inception. They were formerly judges of
the High Court of the United State of Travancore-Cochin from 1953 onwards. M.S.
Menon had ascended the Bench of the High Court in 1953. He had practiced law
before the High Courts of Cochin and Madras. His father Mannathu Krishna Menon
was a judge of the Cochin High Court. M.S. Menon became the Chief Justice of the
Kerala High Court in 1961 and worked in that capacity till his retirement in 1969. He
had the longest tenure in that office. P.T. Raman Nayar was the only I.C.S judge of the
Kerala High Court. Initially he served in the judicial branch of the civil service in the
Madras State. He also worked as the Registrar of the Madras High Court. He also
became Joint Secretary to the Central Law Ministry. Later he was the Special
Secretary overseeing State reorganization in Kerala. In 1957, P.T. Raman Nayar was
appointed judge of the Kerala High Court, of which he became the Chief Justice in
1969. K.K. Mathew joined the Kerala High Court in 1962. He was elevated to the
Supreme Court in 1971. Later, he also functioned as Chairman of the Law
Commission.
156
150


Chief Justices of the Kerala High Court
K.T. Koshi till 1959
K. Sankaran 1959-60
M.A. Ansari 1960-61
M.S. Menon 1961-69
P.T. Raman Nair 1969-71
T.C. Raghavan 1971-73
P. Govindan Nair 1971-73
V.P. Gopalan Nambiyar 1977-80
V. Balakrishna Eradi 1980-81
P. Subramonian Poti 1981-83
K. Bhaskaran 1983-85
V.S. Malimath 1985-91
M. Jagannadha Rao 1991-94
Sujatha V. Manohar 1994
M.M. Pareed Pillay 1994-95
U.P. Singh 1996-97
Om Prakash 1997-99
Arijith Pasayat 1999-2000
A.V. Savant 2000
K.K. Usha 2000-01
B.N. Srikrishna 2001-02
Jawahar Lal Gupta 2002-04
N.K. Sodhi 2004
B. Subhashan Reddy 2004-05
Rajeev Gupta 2005-06
V.K. Bali 2006-07
H.L. Dattu 2007-08
S.R. Bannurmath 2009-10
J. Chelameshwar 2010 onwards

157
151

P. Govindan Nair became judge of the Kerala High Court in 1962. He became the
Chief Justice in 1973. V. Balakrishna Eradi joined the Bench in 1967 and was the
Chief Justice in 1980. He was elevated to the Supreme Court of India in 1981. P.
Subramonian Poti became judge of the High Court of Kerala in 1969. In 1981, he was
made Chief Justice of Kerala. Later, he also served as the Chief Justice of the Gujarat
High Court. V. Khalid joined the Bench in 1972. In 1984, he was appointed judge of
the Supreme Court of India. V.R. Krishna Iyer, the celebrated judge of the Supreme
Court of India, had served the Kerala High Court from 1968 to 1973. Earlier, he was
the Law Minister in the first elected Government of Kerala. E.K. Moidu had worked in
the judicial service of Madras for over a decade before joining the Kerala cadre in
1956. He was the Special Officer in charge of determining the jurisdiction of civil and
criminal courts in Kerala. He held the post of District and Sessions Judge till his
retirement in 1967. In 1969, he was appointed judge of the Kerala High Court. M.
Fathima Beevi, the first woman judge of the Supreme Court, began her legal career in
the judicial service of Kerala. She was judge of the Kerala High Court since 1983
before being elevated to the Supreme Court in 1989. In 1994, Sujatha V. Manohar
became the first women Chief Justice of the Kerala High Court. The glory of Keralas
judiciary reached its zenith in 2007 when K.G. Balakrishnan became the first person
from Kerala to be appointed Chief Justice of the Supreme Court of India. After
retirement in 2010, he became the Chairman of the NHRC. Presently, the High Court
of Kerala has twenty permanent judges and nine additional judges. In 2005, the High
Court was shifted from its abode, the Rammohan Palace to a new bigger building. It
was inaugurated by the then Chief Justice of the Supreme Court of India, Y.K.
Sabharwal.
158
152


M.A. Ansari was the first non- Keralite to become the Chief Justice of the Kerala High
Court. He ascended that high office in 1960. After 1985, all the Chief Justices of
Kerala were persons who belonged to other States. This trend which began with the
appointment of V.S. Malimath continues to the present day. However, there had been
two notable exceptions in 1994 and 2000, when M.M. Pareed Pillay and K.K. Usha,
respectively, became the Chief Justice of the High Court of Kerala.








159
153


END NOTES

1. Gazette Extraordinary of Kerala No.1,dt. 1/11/1956.
2. Gazette Extraordinary of Kerala No.2, dt. 1/11/1956.
3. G.O. (MS) No. 300/59/Home dt. 31/3/1959.
4. D.D. Basu, Shorter Constitution of India, Vol.2, pp.1163-96.
5. Ibid.
6. Gazette No.6, 1956.
7. Kerala Gazette vol.1, No.2, pt.1, dt. 13/11/1956.
8. Kerala Government Gazette No.7, dt. 18/12/1956.
9. Proceedings of Kerala Legislative Assembly, 1
st
session, Vol.1, dt. 10 June,
1957, p.652.
10. 1958 KLT.282
11. Proceedings of Kerala Legislative Assembly, 2
nd
session, Vol.2, dt. 24 August,
1957, pp.233-39.
12. Ibid.
13. Proceedings of Kerala Legislative Assembly,1
st
session, Vol.4, dt. 3 March,
1958, pp.328-29.
160
154

14. Ibid., pp.380-82.
15. Proceedings of Kerala Legislative Assembly, 1
st
session, Vol.4, dt.1 April, 1958,
pp.2273-83.
16. Ibid.
17. Ibid.
18. Ibid.
19. Proceedings of Kerala Legislative Assembly, 3
rd
session, Vol.6, dt. 24
November, 1958, pp.55-59.
20. Ibid.
21. Ibid.
22. Ibid., pp.339-46.
23. Proceedings of Kerala Legislative Assembly, 1
st
session, Vol.14, dt. 23 March,
1962, pp.1571-76.
24. Ibid.
25. Ibid.
26. Proceedings of Kerala Legislative Assembly, 1
st
session, Vol.14, dt. 6 April,
1962, pp.2461-67.
27. Ibid.
161
155

28. Proceedings of Kerala Legislative Assembly, 2
nd
session, Vol,17, dt. 11
September, 1963, pp.82-99.
29. Ibid.
30. Ibid.
31. Ibid.
32. Proceedings of Kerala Legislative Assembly, 3
rd
session, Vol.29, 13 August,
1971, pp.2789-2808.
33. Ibid.
34. G.O.No.(MS)77/Home dt. 11/5/1973.
35. Ibid.
36. Ibid
37. Justice K.K. Narendran Committee Report.
38. The Hindu, 17-11-2008.
39. Malayala Manorama, 10-11-1998.
40. The Hindu, 12-8-2002.
41. Ibid., 1-2-2003.
42. Ibid., 7-2-2005.
43. Malayala Manorama, 15-3-2008.
162
156

44. Ibid., 2-2-2008.
45. The Hindu, 3-2-2008.
46. The New Indian Express, 4-2-2008.
47. Ibid., 13-2-2008.
48. Malayala Manorama, 13-2-2008.
49. Ibid., 14-2-2008
50. Ibid., 15-2-2008.
51. Mathrubhumi, 22-2-2008.
52. Malayala Manorama, 28-1-2008.
53. Ibid.,22-2-2008.
54. The policy of the High Court has been obstructionist.
55. Malayala Manorama, 22-2-2008.
56. Ibid., 26 Feb, 2008.
57. The Hindu, 27-2-2008.
58. Ibid., 28-2-2008.




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157


CHAPTER-4
NOTABLE CASES IN THE CONSTITUTIONAL REALM


Challenge to the Kerala High Court Act:
Courts attach great sanctity to legislative enactments. However, it cannot give up its
own duty to determine the constitutionality of a statute. In 1961, a Full Bench of the
High Court of Kerala, consisting of Chief Justice K. Sankaran and Justices, S. Velu
Pillai and C.A. Vaidialingam, decided an important case in which the validity of the
Kerala High Court Act was questioned. The rules pertaining to the internal working of
the High Court was also a topic of this litigation. An appeal arose out of a suit which
was valued at more than Rs.1000. An order passed by the munsiff court at
Karunagapplly in execution of the decree in a suit, was the subject matter of an appeal
in the sub-court at Quilon. It was against the appellate order of the latter that a second
appeal was filed before the High Court, on 5 February, 1959. During that time, the
Travancore-Cochin High Court Act (Act V of 1125, as amended by Act I of 1952) was
in force. By virtue of that legislation, a single judge of the High Court was empowered
to hear only such of the second appeals that came within the prescribed limit of
clause(c) of sub-section (4) of section 20 of the said Act. Every appeal valued at
Rs.1000 or less from an appellate decree and every appeal from an appellate order
where the subject matter of the suit was valued at Rs.1000 or less, did came under
164
158

this category. Second appeals which were beyond the aforesaid limitations were to be
heard by a Division Bench consisting of two judges
1
.

The sub-section (2) of section 11 of the Kerala Civil Courts Act
2
had raised the
pecuniary jurisdiction of munsiff courts to Rs.5000. Section 13 of the above Act had
provided for appeals from decrees and orders of munsiff court to be heard before the
District Court. The District Court was also empowered to entertain appeals from the
decrees and orders of a subordinate judges court, provided the suit value did not
exceed Rs.7500. Second appeals under the above two categories were also provided
for by section 12 of the said Act. The upper limit of the valuation of a second appeal
was changed by an amendment of section 13 of the Civil Courts Act. This was a result
of the Kerala Civil Courts (Amendment) Act
3
. As a consequence of section 4 of the
amending Act, the pecuniary limit of Rs.7500 as stipulated in the parent Act was raised
to Rs.10, 000. However, prior to the passing of Kerala Civil Courts (Amendment) Act,
the Kerala High Court Act
4
was passed. The latter got the assent of the President of
India on 6
th
February, 1959. The Act came into force on 9 March, 1959. Section 9 of
the new Act repealed the provisions of the Travancore-Cochin High Court Act (as
amended by Act I of 1952) in so far as they relate to matters provided in the Kerala
High Court Act.

By virtue of the new High Court Act, a single judge was able to hear even those
second appeals which were to be heard by a Division Bench under the Travancore-
Cochin High Court Act. In accordance with this provision, the present appeal was
165
159

posted for hearing before a single judge. When the appeal was taken up for hearing,
the counsel for the appellant objected to it by claiming that the single Bench had no
jurisdiction to it, and, that a Division Bench ought to hear the appeal, instead. It was
contended that the appellant had obtained a vested right to have the appeal heard by
a Bench of two judges, and, that it was not being denied by the Kerala High Court Act.
5

When the case was taken up by the Division Bench the counsel for the appellant
questioned the validity of the Kerala High Court Act. The State Legislative Assembly
was told to have transgressed its legislative competence. However, the High Court
opined that Administration of Justice was included in the State List alone, and that the
State Legislature was competent to enact laws defining and regulating the jurisdiction
and powers of the High Court. Thus, the allegation of the State Legislature having
trespassed into the legislative domain of the Union Parliament was rejected. The Court
examined the Kerala High Court Act and the purpose for which it was passed, and
observed that the Constitution and Organization of the High Court was not in any way
affected by the Act. Section 3 of the Act dealt with the powers of a single judge and
enumerated the matters that could be heard and disposed by such a Bench. Section 4
was concerned with matters which were to be heard and disposed by a Bench of two
judges.
6
Section 5 had provided for an appeal to a Bench of two judges against a
judgement or order passed by a single judge in the exercise of original jurisdiction and
also against the judgement or order of a single judge in the exercise of appellate
jurisdiction, where the judge happens to declare that the case was one fit for appeal.
Section 6 empowered the Chief Justice to bring any matter under the purview of a Full
166
160

Bench. Section 7 dealt with the procedure to be followed in cases referred to the Full
Bench on a question of law. Section 8 provided for the hearing of urgent matters
during the vacation period of the High Court. Section 9 stated that the provisions of the
Travancore-Cochin High Court Act in so far as they relate to matters provided in the
Kerala High Court Act, shall stand repealed. The High Court observed that the new Act
had merely provided for the internal working of the High Court by providing a law to
regulate the practice and procedure of the Court including the power to be exercised
by the judges sitting alone or in Division Benches. Thus the High Court saw the Kerala
High Court Act to the wholly within the competence of the State Legislative Assembly.
7

The High Court also examined the question whether the Kerala High Court Act had the
effect of taking away any vested right which the appellant and others had at the time
when the said Act came into force. The Court observed that the appellants themselves
had no case that the vested right of appeal which they had, prior to the passing of the
Kerala High Court Act, had been taken away by any of the provisions of the same Act.
The new Act was told to have preserved the right which was available to the
appellants under sections 96 and 100, of the Code of Civil Procedure. The new High
Court Act had provided for the hearing and disposal of certain classes of appeals by a
single judge, contrary to the earlier practice of referring such appeals to a Bench of
two judges. The question therefore, was whether the appellant had a vested right to
get his appeal heard by a particular number of judges. The Court observed that the
rules regulating the internal working the High Court pertaining to its practice and
procedure could not confer any such right on the litigant. The Bench opined that the
167
161

change brought about in the rules of procedure of the Court does not affect any vested
or substantive right of a litigant, and that, those rules were to have retrospective effect.
Thus it was explicitly stated that the variation in the number of judges hearing the case
and rendering the decision, did not prejudice the right of the appellant to have a
decision by the High Court. The High Court maintained that the appellants right was
only to appeal to the High Court and not to a Bench consisting of a particular number
of judges.
8
The case was thus decided on 28 March, 1961.

The Covenant and the State:
In 1962, a Bench consisting of Justices, T.K. Joseph and M.S. Menon decided over an
important constitutional matter. One Ravivarma Raja had in 1958 succeeded in getting
a favourable decree from the subordinate judge at Parur. The former had sought a
declaration to the effect that the liability of the state of Travancore to pay an annuity to
his family had devolved on the State of Kerala. A single judge Bench of the Kerala
High Court had affirmed the decision of the subordinate judge. An appeal by the State
of Kerala against the decision of Justice S. Velu Pillai came up for consideration
before a Bench consisting of Chief Justice M.S. Menon and Justice T.K. Joseph. The
Advocate General argued for the dismissal of the suit on grounds of it being not
maintainable. He opined that the formation of the United State of Travancore-Cochin
on 1-7-1949 and birth of the State of Kerala on 1-11-1956, by virtue of the States
Reorganization Act, 1956, were acts of state and that no municipal forum had the right
to entertain the said suit.
9


168
162

The High Court declared the formation of the United State of Travancore and Cochin
to be an act of state. It was told that the rulers of the two ex-principalities had given up
their sovereignty over their respective territories, and vested it in the ruler the new
United State through the Covenant. The Court also affirmed that the new sovereign
was competent to accord recognition to an existing right in the conquered or ceded
territories. It also added that the said laws were liable to be examined by the municipal
courts of the absorbing State.
10

It was observed that the United State of Travancore and Cochin did not stop the
payment of annuity on the formulation of that State, and that it continued to pay the
annuity till 10-1-1955. The significance of Ordinance No.1 of 1124 M.E (1949), which
was promulgated by the Rajpramukh of the United State, was asserted in this regard.
Clause 7 of the said Ordinance had dealt with the effect of the formation of the United
State by explicitly stating that the formation of the new entity shall not affect any right,
privilege, obligation or liability acquired, accrued or incurred prior to the appointed day.
The said Ordinance was later replaced by Act VI of the 1125 M.E (1950). Section 7 of
the said Act was also to the same effect. The High Court also stated that the formation
of the State of Kerala was an act of state. The States Reorganization Act, 1956, was
termed as a piece of legislation in the exercise of the powers conferred on the Union
Parliament by Articles 3 & 4 of the Constitution of India. Finally, on 20 September,
1962, the appeal was dismissed with costs.
11


169
163

In 1963, the then Chief Justice M.S. Menon along with Justice T.K. Joseph decided an
important case in which too, the matters relating to the Covenant were raised. The
Registrar of the High Court of Travancore had entered into an agreement on 28
February, 1947, with one Ramachandran Nair for the printing of the records of the
High Court along with the judgments and orders of the subordinate courts. Pursuant to
the said agreement, the printing of the records commenced and continued to do so till
1 July, 1949. On that day the two States of Travancore and Cochin merged to form a
new entity named, The United State of Travancore and Cochin. It was an admitted fact
that on and from that date, no printing work of the High Court was entrusted to
Ramachandran Nair. A protracted correspondence ensued between the two parties. It
began with the communication dated 16 July, 1949 addressed by the respondent
(Ramachandran Nair) to the Registrar of the High Court and ended with a letter written
by the latter to the former, dated 17 October, 1950. On being frustrated and let down,
the respondent issued a suit notice addressed to the Chief Minister of the United State
of Travancore-Cochin. This elicited a reply from the Chief Secretary to the
Government, wherein the respondent was informed that the agreement referred to by
the latter in his notice, had ceased to be enforceable on the formation of the High
Court of the United State of Travancore-Cochin.
12


On 30 June, 1952 a suit was instituted against the United State, in which the
respondent claimed the arrears due to him for work already done before 1 July, 1949.
A sum of Rs.1, 70,000 was claimed as damages for the alleged breach of the
agreement by the State. On 4 March, 1953, the respondent obtained a preliminary
170
164

decree for the arrears due to him. Later on 21 November, 1956, the respondent
entered into an agreement with the State of Kerala which brought the whole matter
under the purview of two arbitrators, namely, H. Ramakrishna Iyer and K.C. Abraham,
both of whom were formerly, judges of the State High Court. The arbitrators awarded
to the respondent a sum of Rs.47, 500/- with three percent interest. When this award
was filed in Court, the appellant (State of Kerala) demurred and took two objections,
one on 27 May, 1957 and the other on 5 October, 1957. The State contented before
the subordinate judge that the arbitrators had misconducted themselves or the
proceedings. However, these objections excepting the one pertaining to the award of
three percent interest on the sum of Rs.47, 500, were overruled by the subordinate
judge. As the award of interest was held to the unsustainable, the provision stipulating
for interest in the award was set aside. The arbitration award was passed on 22 April,
1957.
13

The State of Kerala filed appeal against the lower courts decree, in the High Court.
The State (appellant) took the stand that the award passed by the arbitrators was
liable to be set aside on the ground that the two of them, who gave a unanimous
decision had misconducted themselves or the proceedings. The appellant took refuge
under clause (a) of Section 30 of the Arbitration Act, 1940. It was alleged that the
arbitrators had misconstrued the terms of the agreement signed between the Registrar
of the High Court and the respondent. The arbitrators were also criticized for having
failed to note that the said contract was subject to Rule 574 of the Civil Courts Guide,
1944. However, the High Court negated the contentions raised by the State. The
171
165

Bench threw light on clause 12 of the above said agreement which had specifically
stated that the agreement was to be in force for a period of ten years from the
commencement of the work. Rule 574 of the Civil Courts Guide had provided that the
contracts entered into for the purpose of printing records, could be terminated at will by
either party, on one months notice. However the High Court took notice of the specific
averment in paragraph 5 of the plaint that the contract was to subsist for ten years and
that it was not terminable during that period except in case of default as was
contemplated in clause 8 of the contract. The two written statements filed on behalf of
the State (one on 13 January, 1953 and another on 3 September, 1953) had not
raised any contention to the effect that the period of ten years was untenable. The
State also pleaded that the Registrar was incompetent to enter into a contract which
stipulated a term of ten years. The High Court noted that this very contention was not
even raised before the arbitrators. As such, the question of the arbitrators having
misconducted themselves or the proceedings by not considering that plea, was
rejected.
14

The High Court upheld the view that the Convent entered into by the Rulers of
Travancore and Cochin for the formation of the United State of Travancore-Cochin
constituted an act of state. It was also stated that the respondent would not be justified
in placing any reliance on Article 3 (b) of the Covenant.
15
(The said clause read as
follows- all duties and obligators of the Ruler of either of the covenanting States
pertaining of incidental to the Government of that State shall devolve on the United
State, and shall be discharged by it). The State had argued before the subordinate
172
166

judge that the respondent was trying to enforce Article 3 of the Covenant, which,
according to the appellant, the respondent was not entitled to, on account of the
Covenant being an act of state. The subordinate judge had decreed against the State
in this regard. Strangely, the State had not raised this contention earlier. Neither the
two written statements which were filed in answer to the plaint, nor the two objections
taken to the award on 27 May nor 5 October, 1957, did have any such reference to
that effect. This point was not at all raised before the arbitrators. The High Court
upheld the subordinate judges refusal to consider the said belated defense which was
raised for the first time before the latter.

Ordinance I of 1124 M.E (1949) was promulgated by the Rajpramukh of the United
State of Travancore and Cochin. Section 7 of the said Ordinance had provided that the
formation the United State would not affect any right, privilege, obligation or liability
acquired, accrued or incurred prior to the appointed day (1 July, 1949). It was also
further provided in the same section that formation of the United State was not to
affect any penalty, forfeiture or punishment, incurred in respect of any offence
committed against the existing laws of Travancore or Cochin, prior to 1 July, 1949.
Investigation and legal proceedings in that regard were to be continued and
punishments imposed as if the United State had not been formed. Sections 3 and 4 of
the Ordinance had provided for the continuance of the then existing laws of
Travancore and Cochin, in the respective portions of the United State. By virtue of
these provisions, contracts entered into between the citizens of Travancore and those
of Cochin, became enforceable by the application of laws that were in force in the two
173
167

states. Section 7 had further provided for making those laws binding on the United
State of Travancore and Cochin.
16

The United State of Travancore and Cochin acceded to the Indian Constitution by
becoming a Part-B State. This was an act of state. Article 295(2) had explicitly stated
that the Government of each State specified in part-B of the First Schedule of the
Constitution of India, was to be the successor Government of the corresponding
Princely State regarding all property and assets, and all rights liabilities and obligations
arising out of any contract or otherwise, other than those referred to in clause (1) of
Articles 295. The High Court remarked that the contracts referred to in clause (1) of
Article 295 of the Constitution, were not relevant for the purpose of the case. Later, a
reorganization of the States took place which lead to the abolition of Part-B States. As
a result, the United State of Travancore-Cochin became a part of Kerala State. At this
juncture, suitable provisions were made in sections, 87, 88 and 91 of the States
Reorganization Act, to serve the same purpose as was intended by section 7 of
Ordinance I of 1124 M.E (1949) The High Court opined that the former citizens of the
erstwhile principalities of Travancore and Cochin should not be treated as aliens to the
United State. It was also told that there could be no act of state against its owns
citizens. The Bench observed that there was nothing to indicate that the United State
of Travancore-Cochin had repudiated the obligations of the former entities of
Travancore and Cochin. The Covenant and the above Ordinance had envisaged the
continuance of the good Government in accordance with laws that were prevailing in
the State. The United State was deemed to have assumed the obligation of the States
174
168

of Travancore and Cochin, by virtue of Section 7 (6) of the Ordinance I of 1124 M.E
(1949).
17


It was observed that there was no express provision in Ordinance I of 1124 M.E (1949)
or in Act VI of 1125 M.E
18
(1950) that those statues were binding on the State. It was
due to the necessary implication of section 7 of the above two Ordinances that made
the agreement signed between the Registrar of the High Court and the respondent,
binding on the United State. Meanwhile, the High Court repelled the contention that
the appellant (State) was not answerable for the breach of the contract. The High
Court examined the three grounds which had been relied on for contending that the
contract had become frustrated. They were the location of the High Court of the United
State of Travancore and Cochin at Ernakulam, the assumption by a court of
jurisdiction over the area which formed the territory of the State of Cochin and the
promulgation of rules for printing by the High Court of the United State. However,
these were disapproved by the Bench. Attention was drawn to the clause 6 of the
Agreement which had specifically provided for the respondent to adhere himself to all
instructions which were laid down in the Civil Courts Guide and all other rules and
orders passed from time to time, relating to the matter of printing.
19

The High Court found itself unable to discern any fundamental alteration in the nature
of the contract. It opined that the performance of the contract after the formation of the
United State was not radically different from its performance before that date. It was
175
169

also observed that the claim of the respondent was for a sum of Rs.1, 70,000, while,
he was awarded only Rs.47, 500. The case was thus dismissed on 5 April, 1963.
20

The Constitution and the Legislature:
In 1963, an important constitutional matter was raised before the High Court by M.
Kunjukrishnan Nadar, a member of the Kerala State Legislative Assembly. He was
elected from the Parassala constituency in the mid-term polls held during February,
1960. On 23 November, 1963, he wrote to the Speaker of the Assembly to the effect
that he was intending to devote more time for meditation and religious activities and
that he would not be able to continue as a member of the State Legislature. The letter
also requested the Speaker to consider the same as that of resignation of M.
Kunjukrishnan Nadar from the membership of the State Legislative Assembly with
effect from 1-12-1963. Subsequently, on 26 November, 1963, the Speaker read the
said letter in the Legislative Assembly, and announced that the resignation was going
to take effect on 1
st
December, 1963. However, on 29 November, 1963, M.
Kunjukrishnan Nadar wrote to the Speaker, withdrawing the letter of resignation of 23
November, 1963. The new letter was received by the Speaker on 30 November, 1963.
Strangely, it was not given heed to, as the Kerala Gazette dated 10 December, only
had a notification informing the resignation of M. Kunjukrishnan Nadar from the
membership of the Kerala State Legislative Assembly with effect from 1 December,
1963. Matters thus made a legal confrontation inevitable.
21


176
170

M. Kunjukrishnan Nadar approached the Kerala High Court to get the notification
published in the Gazette of 10 December, 1963 declared null and void. According to
him, the letter dated 23 November, 1963 only evidenced an expression of an idea that
he might resign on 1 December, 1963 and that it was not a valid resignation in writing,
as provided by Article 190 of the Constitution of India. The Court was told that the idea
of resignation was changed before it was given effect to and that the intimation of this
change was communicated by the letter dated 29 November, 1963. The petitioners
prayer to the High Court under Article 226 of the Constitution was not only to declare
the said Gazette notification to be null and void but also declare that the petitioner
continued to be a member of the Kerala Legislative Assembly. A counter affidavit was
filled by the Assistant Secretary of the Legislative Secretariat, on behalf of the
Speaker. It was told that latter had accepted the letter of resignation as evidenced by
his initials on the letter dated 23 November, 1963 and as evidenced further by his
reading of the said letter announcing the resignation of the petitioner in the Assembly,
on 26

November, 1963. On those facts, it was contended that the petitioners
resignation had taken effect and that the same could not be recalled by the petitioner.
Two letters, which were addressed to the Speaker on the subject, other than the two
already cited were brought to the attention of the High Court. The first of the newly
produced letters dated 5

December, 1963, spoke of the petitioner referring to his letter
of resignation and its subsequent withdrawal. In it, the petitioner spoke of having
reconsidered the whole matter and the letter concluded with him requesting the
Speaker for to accept his letter of resignation. The other letter dated 12 December,
1963, contained a claim by the petitioner, addressed to the Speaker, that the former
had not resigned his seat by writing under his hand as required by Article 190(3) of
177
171

the Constitution. Contending that his seat had not become vacant, M. Kunjukrishnan
Nadar requested the Speaker to permit him to continue as a member of the Legislative
Assembly with all its privileges.
22

Article 190(3)
23
of the Constitution of India stated that if a member of a House of
Legislature of a State becomes subject to any of the disqualifications mentioned in
clause (1) of Article 191 or happens to resign his seat by writing under his hand
addressed to the Speaker or the Chairman, as the case may be, his seat shall
thereupon become vacant.

The counsel for M. Kunjukrishnan Nadar argued that a prospective resignation was not
contemplated in the aforesaid Article and that the petitioners letter of 23 November,
1963, being expressed to take effect only on 1 December, 1963, was not a letter of
resignation in accordance with the provisions of Article 190(3). It was pleaded before
the Bench, that the letter dated 23 November, 1963, could be constructed only as an
expression of an intention to resign in the future, and that even if it be taken as a valid
letter of resignation, it, having been withdrawn before the date it was designated to
came to effect, had become inoperative. Thereby, it was claimed that the petitioners
seat in the Legislative Assembly had not become vacant. Examining the contents of
the letter, the judge opined that the letter of 23 November, 1963 had a positive
expression of an actual resignation, absolute in itself. The fact that the said letter was
to take effect on a specified future date, was told to have, not militated against the
determined character of the letter. Thus, the High Court overruled the contention that
178
172

the said letter was not one of resignation as such, but only an expression of intention
to resign in future. Referring to the denial contained in the petitioners letter of 12
December, 1963, the High Court noted that the petitioners counsel had conceded the
fact of the letter dated 23

November as satisfying two requisites a valid resignation.
24


At the same time, the Court held that the expression addressed to the Speaker in
Article 190(3) meant conveyed to the Speaker, and not mere naming of the Speaker
in the heading of the letter. Article 190(3) also stated that if a member resigns his seat
by writing under his hand addressed to the Speaker his seat shall thereupon become
vacant. The counsel for M. Kunjukrishnan Nadar argued that the word thereupon
meant immediately or without delay or lapse of time. Rejecting the argument, the
Court opined that thereupon meant upon that or inconsequence of that. Elaborating
on the matter, the Bench opined that if the letter of resignation was expressly made to
take effect on a specified day, the seat becomes vacant on such specified day only
and not immediately on its receipt by the Speaker.
25


The Rules of Procedure and Conduct of Business in the Kerala Legislative Assembly
made by the House under Article 208 (1)
26
of the Constitution of India and published in
the Kerala Gazette dated 3 January, 1961, was cited in this regard. The High Court
also threw light on the fact that the provision in Article 101(3)
27
of the Constitution, for
resignation of seats in the Union Parliament was virtually identical in expression, with
that in Article 190(3), and that the rule for resignation made by the Parliament under
179
173

Article 118
28
was also virtually identical with Rule 162 made by the Kerala Legislative
Assembly.

Finally, the Court held that the petitioners letter 23 November, 1963, resigning his seat
in the Assembly on 1
st
December, was a mute letter till the latter date. On 29
November, i.e., before it became effectual, the letter was withdrawn by the petitioner.
This fact was very much acknowledged by the Speaker himself, whose receipt of the
said letter was admitted in the counter affidavit filed on his behalf. The High Court
viewed it as the neutralization of the latent vitality in the earlier letter dated 23
November. The withdrawal was told to nullify the entrustment or deposit of the letter of
resignation in the hands of the Speaker. The Court stated that the absence of a
specific provision for withdrawal of a prospective resignation in the Constitution or the
Rules was immaterial. It was also noted that the subsequent letters which were
addressed by the petitioner to the Speaker (on 5 and 12 December), contained no
fresh resignation by the former; instead, they referred to the letter of 23 November. On
21 January, 1964, while concluding the proceedings, the High Court declared that
there was no valid letter of resignation on the material date, i.e., 1 December, 1963, to
be given effect to. The petitioners seat in the Legislative Assembly was told to have
not become vacant. The impugned notification issued on 5

December, 1963, published
in the Gazette dated 10

December, 1963, was accordingly declared null and void.
However the petitioner was denied he costs in the petition for not having disclosed all
material correspondence pertaining to his resignation.
29

180
174

Contempt of Court:
In 1968, Chief Justice P.T. Raman Nayar and Justices, K.K. Mathew and T.S.
Krishnamoorthy Iyer sitting on the Bench decided a case filed against the then Chief
Minister of Kerala, E.M.S. Namboodiripad. The Chief Minister cast aspersions on the
character and outlook of the judiciary, at a press conference held on 9 November,
1967. Judges were told to be guided by class prejudices and individual idiosyncrasies.
The content of the Chief Ministers statement was reported in newspapers of 10
November, 1967. The petitioner was a member of the Bar Council of Kerala.
According to him the said statement by the Chief Minister constituted serious contempt
of court which was intended to undermine the confidence of the people in the efficacy
of courts, thereby challenging the authority of law. The President of the Kerala
Advocates Association, too, impleaded himself in the case. The counter affidavit of the
respondent more or less dealt with his political philosophy. It affirmed that his was
merely a fair criticism of the system of judicial administration with a view to making it
conform to democracy, egalitarianism and socialism. The respondent claimed to have
cast no aspersion on any particular judgement or any particular judge. It was further
contended that the statement had neither undermined the dignity of the courts nor
scandalized the judiciary of the State. On the above grounds, it was claimed that the
statement of the Chief Minister did not amount to contempt of court. The Advocate
General supported the arguments of the respondent.
30


The High Court observed that the controversial statement was made by the
respondent in his capacity as the Chief Minister of the State and that it was intended to
181
175

reach the public through newspapers. The respondent did admit to the fact that it was
made for the purpose of educating public opinion. Reacting to the views expressed by
the respondent, the Bench opined that it was not fair and reasonable criticism. The
statement was told to be a calumny calculated to undermine the confidence of the
public in the courts and in the administration of justice. The respondents statement to
the effect that judiciary was an instrument of oppression, was termed false and
wicked.
31

Chief Justice P.T. Raman Nayar held the respondent guilty of grave contempt of court.
The statement of the latter was held to be capable of undermining the confidence of
the public in the courts. The judge took serious note of the fact that the respondent
had not only refrained from expressing regret but also expressed his determination to
persist in upholding his declared ideological position, irrespective of personal risks.
32

However, Justice K.K. Mathew differed with the above view. He threw light on the
statement of the respondent in the latters affidavit that his statement at the press
conference had no tendency to impair the administration of justice. It was further
explained in the affidavit itself, that he had only made a critical evaluation of the
system of judicial administration of the day and that the statement at the press
conference was only a reiteration of the ideas upheld by his party, the Communist
Party of India (Marxist). The respondent had submitted that judiciary was only one of
the organs of the State which were the servants of the people of India. Justice Mathew
opined that a general proposition deduced from a theory of Marx and Engels and
182
176

applicable to the judiciary in all capitalistic states of the world, could hardly amount to
scandalizing a court or judge. It was also told that the respondents statement was to
be viewed from the background of his political philosophy. Justice Mathew explicitly
stated that he might not be agreeing with the respondents theory of state or the
deductions regarding the character of the judiciary, and that his disagreement had
nothing to do with the right of the respondent to express it. Justice Mathew opined that
a general proposition akin to the one in question would not tend to impair the
administration of justice.
33

The petitioner had contended that conscious partiality had been attributed to the
judges by the respondents statement at the press conference that judges were guided
and dominated by class hatred, class interests and class prejudices and where the
evidence was balanced between a well-dressed pot bellied rich man and a poor, ill-
dressed and illiterate person, judges instinctively favour the former against the latter.
However, Justice Mathew opined that a fair reading of the statement as a whole need
not lead to the above conclusion. He observed that the statement did not necessarily
mean that the judge instinctively favours the rich, in weighing the evidence.
34

Justice Mathew preferred the interpretation that when the evidence appeared equally
balanced, the instinctive tendency of a judge is to decide the case in favour of the rich
as against the poor. It was also noted that the respondent had not imputed any
conscious partiality to any judge. There was not even an allegation that the respondent
was motivated by malice to any judge. In his affidavit itself, he had stated that his
183
177

intention was not to scandalize any court or judge or impute any improper motive to
judges or challenge the validity of individual judgements pronounced by them. He had
also stated that the judgements and orders of courts should be obeyed until the whole
system of administration of justice was changed. The respondent did contend that he
had every right to convert the people to his creed by the democratic method of public
discussion. It was held that when there is good faith and absence of malice, when no
improper motive has been attributed, and when there is no intention to bring the
administration of justice to disrepute, the question of the tendency of the speech is
immaterial.
35
Justice K.K. Mathew affirmed that the respondent was not guilty of
contempt of court. Justice T.S. Krishnamoorthy Iyer, however, agreed with the
reasoning of Chief Justice P.T. Raman Nayar. The former too, held the respondent
guilty of contempt of court. As a result, the respondent was sentenced to a fine of
Rs.1000 or to undergo simple imprisonment for a month.
36
The verdict of the High
Court was delivered on 9 February, 1968.

Implications beyond the borders:
In 1969, a Bench consisting of the then Chief Justice M.S. Menon and Justices, P.
Govindan Nair and V. Balakrishna Eradi, decided a unique case having its roots far
beyond the borders of India, and which had been under the purview of a foreign court
of law. Dr. Chacko Pulparampil an Indian citizen had gone to West Germany (Federal
Republic of Germany) in 1958, to pursue a course in medicine. In the course of time,
he fell in love with a German, Margarita Maria who was also studying medicine in the
same institution. Their mutual affection resulted in their marriage according to the Civil
184
178

Law on 20

December, 1963, and in accordance with the ecclesiastical rites on 29
December, 1963. Their daughter Konstanze was born on 15-7-1964 and the second
child the son, Thomas Markus was born on 22-2-1966. Unfortunately, matters had
begun to deteriorate from early August, 1965, onwards. According to the husband, he
was disturbed by the conduct of the mother-in-law and the brother-in-law, towards him,
which had compelled him to leave their home. Soon, the matter was brought before
the German Courts. The father asked for access to his children, while, the mother
sued for divorce. An agreement arrived with the consent of the Court, regarding the
fathers access to his siblings, was not to the formers satisfaction. The wife was told to
have broken the terms of the above agreement. A fresh agreement too, failed. On 22
July, 1966, Dr. Chacko pleaded for an order from the Guardianship Court. Soon, both
the parties agreed on new terms (pertaining to access to their children), on 9

August,
1966.
37


Meanwhile, the divorce petition filed by Margaret Maria had been dismissed on 22-6-
1966, as it was not established that the husband by his fault had disturbed their marital
life so deeply that normal relations could not be expected to be resumed. The mother
appealed against the said order. While that appeal was pending, the father, on the
application of the mother, was ordered to pay maintenance to the children. This took
place on 18-10-1966. Not long after on 27 December, 1966, the father took out the
children in accordance with the terms of the last agreement. However, instead of
returning them to the mother at the stipulated time, Dr. Chacko drove them in a taxi to
Dusseldorf Airport and flew to India. After making frantic enquiries, the mother moved
185
179

a petition before the Appeal Court, the very next day. She obtained an order that the
father should hand over the custody of the children to her. Later, on 21 April, 1967, the
appeal taken by the father from the order directing maintenance to the children was
dismissed. The mother came to know about the whereabouts of the husband and the
children from a letter that she received from the husbands stepmother, in November,
1987.
38

Margarita Maria reached India and came to Cochin on 19 December, 1967. But
unfortunately, her attempts to contact her children did not materialize. The determined
mother approached the Kerala High Court for justice. The petition was heard by a Full
Bench consisting of the then Chief Justice M.S. Menon, and Justices, P. Govindan
Nair and V. Balakrishna Eradi. It was argued on behalf of the petitioner, that the
Agreement reached between her and Dr. Chacko, on 9 August, 1966, was
nevertheless an order passed by the German Court, when they were residing in
Germany. This point was disputed by the first respondent (Dr. Chacko), who
contended that the said document was nothing more than an agreement. At this
juncture, the High Court observed that both the spouses and their children were
resident in Germany, when the above agreement came into being on 9 August, 1966.
That the father had earlier moved the German Court was told to give the latter
jurisdiction and competence to pass on order binding on the former. The High Court, in
fact, upheld the contention that the Agreement of 9 August, 1966, was an order of
Court. It was affirmed that a decree passed on consent was as much binding upon the
parties as a decree passed otherwise.
39

186
180


The High Court faced the question of deciding the custody of the children who were
born of an Indian father and who were present in India, along with the pertinent
question of respecting and honouring the orders of the German Court. It was decided
to respect the order of the German Court and allow the petition unless such a course
was detrimental to the welfare of the children. The Bench found it arguable that even
when the children remained in the control of the mother the legal custody continued
with the father and that if the latter takes the children from the mother, it could not be
illegal. However, the Court, with a word of caution, declared that the above logic was
not applicable in all cases and under all circumstances. A unilateral breach of trust by
the father or the mother was told to be unacceptable. It was emphatically asserted that
an agreement accepted by a court of competent jurisdiction and embodied in an order
of that court, could neither be ignored nor flouted with impunity by one of the spouses.
The removal of the children by the father against the terms of the agreement of 9
August, 1966, that too in a clandestine manner was very much criticized. The first
respondent was told to be callously indifferent to the feelings of the petitioner, in this
regard.
40


The High Court asserted that nothing in the Guardians and Wards Act, 1890 or in the
Travancore Christian Guardianship Act
41
, 1941, stood in the way of it exercising its
jurisdiction. Finally, after thoroughly examining all the facets of the case, the High
Court decided to entrust the children to the petitioner (their mother), subject to certain
safeguards which the Court thought to be necessary. The petitioner was asked to
187
181

execute a bond to the High Court to produce the children whenever so ordered by the
latter. She was to obtain and sent a report from the concerned parish priest, once in
every three months, to the High Court, having details of the childrens health and
welfare. She was also told to send a copy of the above report to the first respondent,
the father. The Registrar of the High Court was to be informed of the address of her
residence from time to time. Moreover, the German Consulate authority in Madras was
asked to provide an undertaking to the effect that they were willing to render all
possible assistance for the implementation of any order of the High Court from time to
time, within the frame work of the German law. The petitioner was forbidden to take
the children outside West Germany without the permission of the High Court,
excepting when they were to be brought to India. She was also told to bring her
children to India, once in three years, at her own expense, during which period the
father was to have access to the children, based on the terms which the High Court
was to frame. Likewise, the father was to have access to the children even in West
Germany if the former happens to visit that place. The whole question of custody was
told to be liable for review at the end of three years, when the children were to be
brought to India.
42

Life and Liberty: The first post-Emergency writ petition
The most unforgettable judgement of the Kerala High Court was delivered by a Bench
having Justices, P. Subramonian Poti and V. Khalid, on 13 April, 1977. The case was
the first writ petition entertained by the Kerala High Court after the lifting of the
National Emergency. The petitioner T.V. Eachara Varier, a resident of Cochin was
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182

formerly Professor of Hindi at the Government Arts and Science College, Calicut. His
son, P. Rajan was a final year student of the Regional Engineering College, Calicut,
during the academic year 1975-76. On 1 March 1976, Rajan, who was then staying in
the College Hostel, was taken into Police custody. On the very same day, the Principal
of the College, Professor Bahauddin informed the petitioner about the said incident
through a registered letter. Not knowing the reason for his sons arrest, the petitioner
made enquiries to various Police officers in this regard. Through such efforts, it
became known that Rajan was arrested under the directions of the Deputy Inspector
General of Police, of the Crime Branch at Trivandrum. On 10 March, 1976, the
petitioner met the then Home Minister of Kerala, K. Karunakaran, whereupon the latter
promised to look into the matter. This promise turned out to be a hollow one. Petition
was sent to the Home Secretary not once, but thrice. However, there was neither a
reply nor an acknowledgement. The petitioner wanted to know at least the
whereabouts of his son so that the sufferings of his family could be alleviated. He
continued with his efforts in this direction.
43


Representations were made in this regard to the President of India, the Union Home
Minister and all the Members of Parliament from Kerala. The President of India
informed the petitioner of the former having referred the matter to the Chief Secretary
of Kerala. Similar representations to the Prime Minister of India and others too, proved
to be futile exercise. Two of the Members of Parliament from Kerala, namely, A.K.
Gopalan and V. Vishwanatha Menon, had informed the petitioner about the intimation
they had received from the Prime Minister and Union Home Minister in the said matter.
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183

Moreover, the issue was raised in the Lok Sabha and the Rajya Sabha, by the
Members of Parliament, Samar Mukerji and V. Viswanatha Menon, respectively.
Meanwhile, the latter provided the petitioner a copy of the intimation received from the
Home Minister of Kerala, to the effect that the release of Rajan was under
consideration. The hapless father searched in vain for his son in the three Central Jails
of Kerala along with various other Police Camps. The then Chief Minister of Kerala, C.
Achutha Menon had personal knowledge of the arrest and detention of Rajan. On one
occasion, the former had expressed his helplessness in the matter to the petitioner, on
the ground that the issue was being dealt with by the then Home Minister, himself. K.
Karunakaran was a candidate in the then just concluded general elections. He was
told to have referred to Rajan in some of the public meetings to the effect that the latter
was being kept in detention due to his involvement in a murder case. Citing the above
statement, the petitioner put forward the case that his son should have been produced
before a Magistrate under the provisions of the Code of Criminal Procedure inspite of
Articles 21 and 22, having remained suspended during the Emergency
44
.

The Home Secretary to the Government of Kerala and the Inspector General of Police,
were the first and second respondents, respectively. The Deputy Inspector General
(Crime Branch) was the third respondent. The then Minister for Home Affairs, K.
Karunakaran, was impleaded as the fourth respondent, while the District
Superintendent of Police of Calicut was the fifth one. Counter affidavits were filed by
the respondents, individually.

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184

The first respondent did admit to the receipt of petitions from T.V. Eachara Varier by
the State Home Department. That the petitioner got no communication or even an
acknowledgement from the Government was not denied in the said counter affidavit. It
was further told that copies of the said petitions were forwarded to the Inspector
General of Police, for enquiry into the allegations made therein. In their counter
affidavits, the Inspector General of Police and the Deputy Inspector General of Police
denied the arrest of Rajan by the Police. It was claimed that Rajan had not been
arrested by any Police Officer of the State. K. Karunakaran, who had by then become
the Chief Minister of Kerala, also filed a counter affidavit denying the averments in the
petitioners affidavit. While admitting to have met the petitioner (on 30-3-76) and to
have written a letter to Viswanatha Menon M.P, he denied having acknowledged the
arrest and detention of Rajan. He also denied having spoken about Rajan in public
meetings.
45

The District Superintendent of Police, Calicut, averred that Rajan was not wanted in
any of the cases then investigated and that the latter was not in the custody of any of
the Police Officers. The fifth respondent also denied arresting Rajan in connection with
the investigation of crime No.19 of 1976 of Kayanna Police Station. While admitting his
presence at the Kayanna investigation camp from 28-2-1976 to 12-3-1976, he stated
that Rajan had not been brought for investigation to the camp by any Police Officer.
However, he acknowledged having heard of Rajan having involved in extremist
activities from one Muraleedharan, a college-mate of Rajan. Muraleedharan was said
to be absconding from the College from 16-9-1975. The District Superintendent of
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185

Police also claimed about Rajan having absconded from the College on grounds of the
latter having apprehended Police action against him after Joseph Chali, a student of
the Regional Engineering College, Calicut, was arrested and detained under MISA.
Rajan was alleged to have helped some of the accused in the Kayanna Police Station
attack case. The High Court faced a peculiar situation as it was being called upon to
undertake the task of finding out the truth or otherwise of the detention itself. The
Court decided to embark upon the examination of the facts to in order to ascertain
whether Rajan was actually taken into Police custody or not. The Additional Advocate
General, T.C.N. Menon, who appeared on behalf of the respondents, did not oppose
the venture of the Court.
46

The first and foremost question considered by the Court was, whether Rajan was
taken into Police custody on 1 March 1976. It was observed that there was
considerable evidence supporting the petitioners contention in this regard. The
Original Petition was filed in the High Court on Friday, 26 March, 1977. It was moved
on the very next sitting of the Court, on 28 March. A day after the said petition was
moved, K. Karunakaran who had by then become the Chief Minister of Kerala, stated
on the floor of the Legislative Assembly that Rajan had never been arrested. After the
filing of counter affidavits by the respondents, the petitioner filed a reply affidavit along
with affidavits of 12 persons who were evidently supportive of the case of the
petitioner. Easwara Iyer was the petitioners counsel.
47

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186

The examination of Professor Bahaddin revealed many facts. He told the Court that it
was the acting Chief Warden who had on 1-3-1976, reported to him that Rajan and
Joseph Chali had been arrested. On the same day itself, Professor Bahuddin informed
the parents of the two said students through registered letters, about the fate of their
wards. Relevant papers in this regard were produced before the Court by the Principal
himself. However, it was observed that he was not a witness to the actual arrest and
that he had spoken about the report being made to him at 7am by the acting Chief
Warden, Dr. Ramakrishnan. Rajan was said to have been taken from the college
premises in a van by about 6.30 am on 1-3-1976. The attendance register of the
College for the final year class also showed the absence of Rajan from 1-3-1976
onwards. Available evidence showed that just before he was taken into custody, Rajan
had only returned to the Hostel after attending the University Arts Festival. It was
admitted that the Police had came to the Regional Engineering College on 1 March,
1976 for interrogating another student Joseph Chali. The Court refused to believe that
the story of the arrest of Rajan by the Police was a fabricated one.
48


Witnesses, who gave affidavits supporting the averments made by the petitioner, were
examined in the Court. Except for some minor negligible discrepancies in their
individual depositions, the crux of their statements before the Bench was more or less,
the same. Through these evidences, it became very clear that Rajan and Joseph Chali
were taken from the College in a Police van. Sub-Inspector Sreedharan of the Crime
Branch and Constable Raghavan Nair were present at the venue. The two boys were
taken to a nearby lodge. From there, Rajan was taken to the Kakkayam Travellers
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187

Bungalow where he was tortured in a room by six policemen, one among whom being
Sub-Inspector Pulikkodan Narayanan. Rajan was thereafter removed from the said
room on him becoming unconscious.
49

Attempts were made to magnify the discrepancies in the statements of the witnesses.
However, the Court opined that there was no material discrepancy. The claim a
witness of him having been detained for twelve days at Kakkayam Camp was taken
serious note of by the Court. Another witness too spoke of being detained at the same
camp. These two witnesses claimed to have seen Joseph Chali and Rajan,
respectively, at the Kakkayam Camp.
50

The Court opined that the evidence of Prosecution witness (No.9) substantiated the
petitioners case. The said witness had categorically stated in his affidavit that he was
detained in the Kakkayam Camp for a number of days and that he saw Rajan there.
The arrest of the above witness on 28-2-1976 and his subsequent detention at
Kakkayam was not refuted by the counsel for the respondents. It was this witness who
admitted to have seen Rajan being tortured by six policemen led by Sub Inspector
Pulikkodan Narayanan. Earlier, another prosecution witness (No.7) had claimed to
have seen Joseph Chali at Kakkayam Camp. This witness himself was taken into
custody at 9.30 pm on 1-3-1976. He was first taken to Kunnamangalam Police Station
and later to the Kakkayam Police Camp. The Additional Advocate General did point
out certain discrepancies in the evidence given by the above witnesses. However, no
attempt was made on his part to indicate that the evidence of these witnesses was
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188

unreliable. After an overall appreciation of the oral evidence, the High Court concluded
that Rajan was indeed taken from the Regional Engineering College on 1-3-1976 by
the Police and was latter tortured by six policemen including and Sub Inspector
Pulikkodan Narayanan at the Kakkayam Travelers Bungalow. Answering a question
posed by the Court, T.C.N. Menon the Additional Advocate General submitted that K.
Karunakaran was not denying the fact of the petitioner meeting him, but, that the
former was only denying having admitted about the arrest of Rajan. The Court
however, gave credence to the petitoners contention in this regard. The fact that the
counsel for the respondents, T.C.N. Menon refrained from cross examining the
petitioner even on being offered for the same, was taken serious note of by the Bench.
During the course of the hearing, the High Court lamented, that during the period
relevant to the case, the citizen had no protection from the court and had to depend on
the good sense and fairness of the Executive. The Court also expressed displeasure
over the statement of the fifth respondent, K. Lakshmana who claimed to have been
throughout present at the TravellersBungalow at Kakkayam, that, Rajan was not taken
into custody. Overwhelming evidence to the contrary, was already present before the
Court. Strangely, the fifth respondent, who also happened to be the District
Superintendent of Police, did not offer himself for cross examination.
51


The Additional Advocate General had informed the Court about a proposal to appoint
a Commission of Enquiry with regard to the questions raised in the petition. The
Bench was not at all impressed with this belated gesture, and therefore refused to
abdicate its function to adjudicate on the petition.
52
Finally the High Court affirmed that
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189

Rajan was indeed taken into custody from the premises of the Regional Engineering
College Hostel on 1-3-1976 and that he was taken to Kakkayam Tourist Bungalow
where he was seen on 2-3-1976. The very next pertinent question which engaged the
attention of the court was whether Rajan was still in Police custody. Having found that
he was taken into Police custody, he was deemed to continue in such custody, unless
otherwise shown.

The Additional Advocate General pleaded strenuously against the issuance of the writ
of habeas corpus on grounds that the respondents were likely to be found guilty for
something for which they themselves were not personally responsible. T.C.N. Menon
further urged that superior Police Officers should not be penalized for the supposed
misconduct of some of their subordinates. However, the Court refused to entertain the
said argument. Finally, a writ of habeas corpus was issued to the respondents
directing them to produce Rajan in the High Court on 21 April, 1977. Fully concurring
with the judgement of Justice P. Subramonian Poti, Justice V. Khalid opined that the
Bench was not interested to find the guilt of any particular person, but the truth
regarding the fate of Rajan. He also observed that there had been an attempt at
suppressing the truth rather divulging it.
53
The case raised a huge political storm which
unseated the then Chief Minister of Kerala, K. Karunakaran. That Rajan was not alive
became as clear as daylight. As a result, a criminal case was filed against the arrest,
torture and murder of Rajan. Soon, at the request of the accused, the case was
transferred to the Coimbatore Sessions court. There were almost a hundred witnesses
among whom eighty were victims of torture at the Kakkayam camp. Holding that the
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190

charge against the accused was not proved beyond doubt, the court exempted them
from the charge of murder and sentenced them to one year simple imprisonment. The
accused appealed against the verdict before the Madras High Court and they were
acquitted.
54












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191


END NOTES

1. The Acts and Ordinances of Travancore-Cochin 1952, pp.1-4.
2. Kerala Gazette Extraordinary No.4, dt. 12/1/1957.
3. Kerala Gazette dt. 26/3/1959.
4. Kerala Gazette Extraordinary dt. 14/2/1959.
5. 1961 KLT.275
6. Ibid.
7. Ibid.
8. Ibid.
9. 1963 KLT.323
10. Ibid.
11. Ibid.
12. 1963 KLT.1000
13. Ibid.
14. Ibid.
15. The Covenant
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192

16. Ordinance 1 of 1124 M.E.
17. Ibid.
18. The Travancore-Cochin code, Vol.1, pp.125-30.
19. 1963 KLT.1000
20. Ibid.
21. 1964 KLT.140
22. Ibid.
23. D.D. Basu, Shorter Constitution of India, Vol.2, p.1127.
24. 1964 KLT.140
25. Ibid.
26. D.D. Basu, Shorter Constitution of India, Vol.2, p.1152.
27. D.D. Basu, Shorter Constitution of India, Vol.1, p.720.
28. Ibid., pp.745-46.
29. 1964 KLT.140
30. 1968 KLT.299
31. Ibid.
32. Ibid.
33. Ibid.
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193

34. Ibid.
35. Ibid.
36. Ibid.
37. 1969 KLT.174
38. Ibid.
39. Ibid.
40. Ibid.
41. The Acts and Proclamations of Travancore, Vol.12, pp.374-84.
42. 1969 KLT.174
43. 1977 KLT.335
44. The Emergency was the darkest chapter in the history of free India.
45. 1977 KLT.335
46. Ibid.
47. Ibid.
48. Ibid.
49. Ibid.
50. Ibid.
51. Ibid.
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194

52. Ibid.
53. Ibid.
54. Eachara Varier, Memories of a Father, pp.48-50.





















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CHAPTER-5
LANDMARK CASES IN THE RELIGIOUS REALM:


Temples were the centers of Hindu religious life. Their influence on the society has
always been enormous. A temple is conceived to be the representation of God in a
cosmic form. It has occupied the most central place in the Hindu society for centuries.
Building temples was considered to be an extremely pious act, bringing great religious
merit. All matters concerned with temples were performed with religious overtones.
Temples were autonomous institutions, having immense wealth derived through its
lands and by way of offering from devotees. Kings and noblemen always made
considerable donations for the benefit of various temples. However, none of them had
ever thought of appropriating the wealth of these richly endowed holy institutions.
Usurpation of the property of temples was thought to be a grave sin.

The rulers of Travancore considered it to be their solemn right and duty to maintain
Hindu religious institutions in good condition. The traditional melkoima vested in them,
made them responsible for this vital matter. But it did not empower them to meddle in
the financial affairs of the Devaswoms. Unfortunately, the whole picture began to
change with the advent of colonial expansionism. The treaty of 1805 brought
Travancore under the Subsidiary Alliance. It stipulated an annual subsidy of eight lakh
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196

rupees. This amount had fallen into arrears. Moreover, the State was asked to bear
the entire expenses of the war waged against the partisans of Velu Thampi, in 1808-9.
These demands bore no fruit. In order to ensure the speedy liquidation of all the
arrears, the British had even contemplated the annexation of Travancore
.1
Finally, as a
consequence of manifold political conspiracies, the then British Resident, Colonel
John Munro took over the office of the diwan.

The resources of the State Government were limited and it offered no scope for
improvement. Meanwhile, the huge assets of the temples caught the attention of the
regime. As a prelude to their usurpation, allegations of mismanagement and
embezzlement were fabricated against the trustees of temples.
2
Munro's order of 1811
led to the assumption of Devaswoms in Travancore. On the eve of the takeover, the
income from immovable property of the latter was nearly sixteen lakh para of paddy
and about 53,000 rupees. In addition, 70,000 para of paddy and 43,000 rupees were
earned through sanchaayam and kanikka, respectively. Substantial income from
cheerikkal lands, whose extent was unascertained, was not taken into account in the
above calculation.
3
The thirattu of 1811 mentions the assumption of 348 major and
1123 minor Devaswoms.

The kariakars were ordered to collect rents and profits from Devaswom properties
within their jurisdiction. All such collections were credited by them in the Sirkar
accounts and they eventually merged in the public exchequer.
4
Income from
Devaswoms gradually became absorbed in the general revenues of the State. Most of
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the immovable property of the former was in course of time, treated as pandaravaga.
5
The State began to have a revenue surplus even after meeting the entire expenses of
temples. Within three years of his assuming of office, Munro succeeded in paying,
besides the then current subsidy, debts of eighteen lakh rupees to the English
Company and six lakh rupees to individual creditors.
6

The Proclamation of 1865 gave fixity of tenure and proprietary rights to the holders of
pandarapattom lands. Soon, Devaswom lands too fell victim to the operation of this
enactment. Attempts made for identifying and separating Devaswom and Sirkar lands,
ended in dismal failure. The State frankly acknowledged the difficulties involved in that
endeavour. Most of the Devaswom lands were entered in revenue accounts, during
the periodic survey and settlement, as pandaravaga. When Devaswom lands were
treated like that of the Sirkar, its holders got proprietary interest in it. Earlier they had
only a leasehold or mortgagee's interest.
7


In 1903, 116 temples were taken over by the Government, which came to be
designated as Personal Deposit Devaswoms. Each of them had a separate personal
deposit account with the Government treasuries. They are also known as
Unincorporated Devaswoms. Their receipts and expenses were kept separate unlike
the Incorporated Devaswoms, whose assets had already become inseparable from
that of the State.
8

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198

The Settlement Proclamation of 1906 led to the substitution of rents in paddy with that
in cash. Though intended for pandarapattom lands alone, Devaswom lands also came
under its sway. As a result, the latter began to have a reduction in their income. It
became a cause of concern for Hindus of Travancore. This prompted the regime to
initiate sensible and meaningful measures for the betterment of Devaswoms.
9

In 1907, M.K Ramachandra Rao, a judge of the Travancore High Court, was deputed
to study the vexing problems concerning Devaswoms. His report clearly stated that the
assumption of the temples had proved prejudicial to the interests of those institutions,
by merging their properties in those of the Sirkar. The treatment of Devaswom lands
on the same footing as the Sirkar lands was criticized. He affirmed that the relation of
the Government to the Devaswoms must be deemed to be wholly that of a trustee. His
report revealed the virtual indebtedness of the State to the Devaswoms to the extent of
a crore of rupees. It was finally submitted in 1908.
10

In pursuance of the findings of M.K. Ramachandra Rao, the Government undertook
vigorous initiatives. In 1912, attempts were strenuously made to identify Devaswom
lands and to separate their revenue from that of the Sirkar. The attempt at complete
identification failed and no further steps were taken in that direction. However, the
Government stated its intention to regulate the next revenue settlement in regard to
Devaswom lands, so as to ensure full legitimate income to the latter. The fundamental
difference between the lands of the Devaswoms and those of the Sirkar was also
diligently noted by the regime.
11
205
199


The separation of the Devaswoms from the Land Revenue Department was a
foregone conclusion. However, the agitation launched by the Civic Rights League
acted as a catalyst, in this regard. These agitators demanded the exclusion of
Devaswoms from the Land Revenue Department, in order to facilitate the entry of all
classes of Travancoreans into the ranks of the latter. A Devaswom Separation
Committee was constituted, consisting of both Hindus and non- Hindus.
12
The
Committee came to the conclusion that by the merger of Devaswom resources with
that of the State, the Government has incurred an obligation to maintain them
efficiently forever. All the members agreed in fixing an absolute obligation on the State
to maintain Devaswoms in efficient condition. The State was persuaded to declare all
Devaswom lands as pandaravaga and to compensate for the loss of revenue to the
Devaswoms. There was a divergence in opinion within the Committee. A dissenting
note by a member portrayed the relation of the State with respect to the Devaswoms,
as that of a trustee. On the contrary, the majority felt that the confiscation and
annexation of Devaswom property by the State was an application of the melkoima
inherent in the Maharaja.
13


The Devaswom Proclamation of 1922 led to the formation of an independent
Devaswom Department. While apportioning 40% of the State land revenue towards
Devaswoms in proportion to the lands merged with the Government, the enactment
allowed the grant of pattas to holders of Devaswom lands, irrespective of community
and creed. The policy laid down in the Government proceedings dated 25 October,
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200

1912, of separating Devaswom lands from Sirkar lands and assuring the Devaswoms
their full revenue at the next settlement was finally abandoned by this Proclamation. In
1946, the 40% prescribed in 1922 was converted to a fixed amount of Rs.25 lakh.
14

As far as the princely State of Cochin was concerned, when Colonel Munro assumed
charge of the administration, Devaswom property began to be treated as Sirkar
property. All Devaswom receipts were merged in the general revenues of the State.
Since then, Devaswom lands in Cochin came to be assessed nearly in the same
manner as pandaravaga lands. The assessment was levied in money at the same
commutation rates. On the other hand the Unincorporated Devaswoms were self
supporting and their incomes were not merged with that of the State. The settlement of
Devaswom lands in the same manner as that of Sirkar lands and the levy of rent at a
fixed commutation rate made the income of the Devaswoms most stationary.
Gradually, the expenditure increased beyond their means. In order to correct the
anomalies involved in Devaswom matters the Cochin Government deputed a Special
Officer, to make suitable investigation in this regard; he submitted his report in 1908
.15

A new scheme of Devaswom administration was enforced in September 1909. A
Proclamation was issued in this respect on 11 February, 1910. All Devaswoms under
Sirkar management both Incorporated and Unincorporated were amalgamated and
constituted into a separate endowment. This involved the restoration of the properties
and funds of such institutions annexed to the Sirkar. The receipts and expenditure of
these Devaswoms were entirely separated from the general revenues. The Land
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201

Revenue Department was relieved of all Devaswom work except the collection of rent
of Incorporated Devaswom properties. Soon Devaswoms came to be divided into
groups. By a Proclamation on 5 September, 1916, the income from the Incorporated
and Unincorporated Devaswoms were constituted into a common trust fund. The
financial distinction between group funds was done away with.
16

With the passage of time, movements for responsible government gathered strength in
Travancore and Cochin. This was a part of the rising tide of popular aspirations
throughout India. The Instrument of Accession and the Standstill Agreement, based on
the Indian Independence Act, led to the Centre taking over the subjects of Defence,
Finance and Communications. The Representative Body Proclamation of Travancore ,
on 4 September, 1947, excluded Devaswoms and Hindu Religious Endowments from
the ambit of any legislation.
17
The Devaswom (Amendment) Proclamation of 23
March,1948, provided for the allotment of Rs. 50 lakh in the State Budget annually,
for the Devaswoms.
18
Similarly the Travancore Interim Constitution Act of 24 March,
1948, set aside a sum of Rs. 1 lakh for the sreepandaravaga.
19
The rulers of Cochin
enjoyed complete control of Devaswoms in their domain. It was kept outside the
purview of the legislature.
20
Ministers exercising executive control over Devaswoms
were subject to the control of the Raja.
21

On 1 July 1949, Travancore and Cochin were integrated to form the United State of
Travancore- Cochin. This was the result of the Covenant entered into by the rulers of
both the States. The Maharaja of Travancore became the Rajpramukh.
22
The United
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202

State took over the obligation of Travancore to make annual contributions of Rs.50
lakh and Rs.1lakh, to the Devaswom Fund and Sree Pandaravaga, respectively. The
Covenant vested in the Travancore Devaswom Board, obligations which were hitherto
attended by the King of Travancore for the wellbeing of Hindu Religious Institutions
and Endowments. The administration of Sree Padmanabha Swamy Temple and its
properties were kept under the control and supervision of the Ruler of Travancore,
who was empowered to appoint an Executive Officer and a three member committee
to advise him in this regard. The Travancore Devaswom Board was to make an annual
contribution of Rs.5 lakh towards the expenditure in the Sree Padmanabha Swamy
Temple. The Devaswoms and Hindu Religious Institutions under the Ruler of Cochin
under Section 50 G of the Government of Cochin Act, 1938, and the provisions of the
Cochin Hindu Religious Institution Act, 1906, and all other properties were handed
over to the Cochin Devaswom Board. However, the regulation and control of rituals
and ceremonies in the Temple of Sree Poornathrayeesa at Thrippunithura and in the
Bhagavathy Temple of Pazhayannore were to be exercised by the Maharaja of
Cochin. The Devaswom Boards of both Travancore and Cochin came into being as a
result of an Ordinance. Soon, there arose a need for an Act of the Legislature for
replacing the Ordinance. This led to the enactment of the Travancore-Cochin Hindu
Religious Institutions Act.
23


The Devaswom Boards of Travancore and Cochin were to be corporate bodies having
perpetual succession. Each of them had a common seal with power to hold and
acquire properties for and on behalf of the Hindu religious institutions under its
209
203

management. They were empowered to make bye-laws for the conduct of all their
proceedings and business. Both the Devaswom Boards consisted of three Hindu
members each. Two of them represented the Hindus among the Council of Ministers
and Legislators of Travancore-Cochin. A third member was nominated to each Board
by the erstwhile rulers of Travancore and Cochin. Only a permanent resident of the
United State, of atleast 35 years of age, was eligible to be a member of Devaswom
Board. Office holders of the Government or local authorities, members of Parliament
or State Legislature, and convicted criminals were not eligible for election or
nomination as members of a Devaswom Board. Similarly, persons interested in a
subsisting contract for making any supplies to or executing any work on behalf of any
religious institution under the Devaswom Board, were too disqualified.
24

If a person elected or nominated as a member of a Devaswom Board is declared by a
court to be under in such disability, he ceased to be a member. The Secretary to each
Board convened its meetings and kept the minutes of the proceedings of each
meeting. He was to represent the Board in suits instituted for and against the Board.
No suit was to be instituted against a Devaswom Board, until the expiration of two
months after a notice in writing has been delivered at the office of the Board. The
President and members of the Travancore Devaswom Board were to receive as their
honoraria, Rs.450 and Rs.400, respectively. Their Cochin counterparts got Rs.300 and
Rs.250, respectively.
25

210
204

The Act provided for the interference of the High Court in matters concerning the
Travancore and Cochin Devaswom Boards. Sections 8 and 67 provided for the
removal of the members of the two Boards, on finding them to be unfit under the
clauses of sections 7 and 66 of the aforesaid Act. The District Courts of Trivandrum
and Trichur were authorized to issue an order disqualifying a member of the
Devaswom Boards of Travancore and Cochin, respectively. An appeal against such an
order lay to the High Court, to be heard by the Division Bench. Members of the two
Boards were liable to be removed from their office by the High Court on grounds of
proven misbehavior or incapacity. Applications in this regard were to be made before a
single judge, at the first instance. On being convinced of the presence of a prima-facie
case, the petition was to be referred to the Division Bench.
26

The High Court was authorized to appoint a suitable agency for auditing the accounts
of both the Devaswom Boards, annually. Every auditor appointed under sections 32
and 102, of the Hindu Religious Institutions Act was deemed to be a public servant
within the meaning of the relevant sections of the Penal Code. The auditor was to
send his report to the High Court. On receipt of the audit report from the apex court of
the State, the Travancore and Cochin Devaswom Boards were duty bound to remedy
defects or irregularities pointed out by the auditor and report the same to the High
Court. If either of the Boards or any of its members, were found guilty of
misappropriation or willful waste of funds, the High Court was empowered to pass an
order of surcharge against the Board or a particular member. The order of surcharge
executed against a member or members of a Board was to be done as if those were a
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205

personal decree passed against them by the High Court. An order of surcharge under
sections 32 and 105 of the 1950 Act was not to be an obstacle for a suit for accounts
against either of the two Boards or the members concerned in respect of the matter
finally dealt with by such order. For the ensuring transparency, provision was made for
the supply of audit reports to any applicant. All legal proceedings taken on behalf of or
against the Devaswom Boards or Hindu Religious Institutions or Endowments were to
be continue for or against those entities.
27


Eligibility for election:
In 1954, the High Court considered a very important case in this realm. A petition
challenged the election of Balakrishna Marar (the first respondent) to the Cochin
Devaswom Board on the ground that he was not eligible for election as a member of
the Board under section 66(iii) of the Travancore-Cochin Hindu Religious Institutions
Act, 1950
28
. The petitioner Govindankutty Menon was defeated in the above election.
The first and foremost prayer in the petition was for the issuance of a writ of quo
warranto against the first respondent. The latter was asked to furnish information
regarding the authority under which he functioned as a member of the then Cochin
Devaswom Board. Prayer was also made for a declaration from the High Court, to the
effect that the first respondent was not authorized to occupy that office on grounds of
him being not elected legally and properly.

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206

Section 66 (iii) of the Hindu Religious Institutions Act had provided that a person could
not be eligible for election if he happened to be an office-holder of a local authority.
Balakrishna Marar was the Chairman of the Trichur Municipality on 4-6-1954, the date
of his nomination and election under the rules in schedule II to the Act and till 12-6-
1954, when his resignation by the letter dated 5-6-1954, was accepted by the
Municipality. The term "local authority" was defined by section 2(20) of the Travancore-
Cochin Interpretation and General Clauses Act
29
, in the following words-"A Municipal
Corporation or Council a Town Council, or other authority legally entitled to or
entrusted by the Government with the control or management of a Municipality,
constituted under the Cochin Municipal Act, 1938, was a local authority whose 'office
holders' were disqualified for membership of the Board under section 66(iii) of the
Hindu Religious Institutions Act 1950.

The first respondent contended that the term "office holder" in section 66(iii) of the
Hindu Religious Institutions Act meant only an 'officer', and that the Chairman was not
an officer of a Municipality under the Cochin Municipal Act
30
. Even the term "office-
holder" in section 66(iii) of the Hindu Religious Institutions Act had to be resolved with
reference to the provisions of that Act itself. Section 87(i) of the said Act referred not
merely to office-holders but also officers and servants. After a deep examination of
various sections of the above Act, the Bench opined that while the words officers and
servants were created as interchangeable or as denoting two gradations in the official
hierarchy, the word "office-holder", was kept distinct and separate by the legislature as
213
207

denoting its superior status, as being quite different from an employee serving under a
contract of employment.

The first respondent further contended that nothing should be termed an "office"
unless there was a remuneration attached to it. The Court was told that the
Chairmanship of the Trichur Municipality carried no remuneration but only a
conveyance allowance, resulting in it being outside the purview of the Hindu Religious
Institutions Act, 1950. But, the High Court negated this contention and held that the
only fact which needed to be known was whether the particular office was the creature
of a statute. The conditions under which an office should satisfy for information in the
nature of a quo warranto to lie were as follows: -
(i) it must have been created by charter or statute
(ii) its duties are of a public nature,
(iii) it must be substantive in character or independent in title, whether permanent or at
pleasure and not merely that of a deputy or servant functioning at the will and pleasure
of others.
On the basis of section 70(1) of the Hindu Religious Institutions Act, the first
respondent further contended that even if he was found to be an office holder of a
local authority and thus within the mischief of section 66(iii) of the above Act, the
disqualification could operate only if it was present on the date he assumed office as a
member of the Cochin Devaswam Board. Balakrishna Marar's resignation was
accepted by the Trichur Municipality on 12-6-1954 and he had assumed office as a
214
208

member of the Devaswam Board only on 15-6-1954. Therefore it was claimed that the
disqualifications was removed nearly three days before his joining the Board.
Disagreeing with the above contention, the High Court opined that, the crucial date
under the Act was not the date on which the first respondent assumed office as a
member of the Board but the date of his nomination and election under the rules in
Schedule II to the Hindu Religious Institutions Act 1950.
31

Section 63 of the above Act had provided for electing one of the three members of the
Cochin Devaswam Board by the Hindu members of the Legislative Assembly of the
United State of Travancore-Cochin. Section 64 of the same Act read as follows: - "A
meeting of the Hindus among the members of the Legislative Assembly of the State of
Travancore-Cochin shall be summoned under the authority of His Highness the
Rajpramukh by any person authorized in this belief by the Rajpramukh to meet at such
time and place and on such date may be fixed by him in his behalf for the election of a
member to the Board. The election shall be held in accordance with the rules specified
in Schedule II by the person commissioned by the Rajpramukh to preside over the
meeting".

The second respondent was the person commissioned by the Rajpramukh to preside
over the meeting at which Balakrishna Marar (first respondent) was elected as a
member of the Cochin Devaswam Board by the Hindus among the members of the
Legislative Assembly of the United State of Travancore-Cochin. Balakrishna Marar
was nominated in accordance with the provisions of rules of Schedule II on 4-6-1954.
215
209

The petitioner, Govindankutty Menon who was the only other candidate, so nominated,
secured only a lesser number of votes. As a result the first respondent was declared
elected on the very same day by the second respondent according to rule 7 of the
Schedule II. The said Provision read as follows:- "Where only two candidates are
nominated for election as the member to the Board the candidate who obtains at the
ballot the larger number of votes shall be declared elected by the Chairman".

The High Court stressed on the need to resolve the case by a proper construction of
various sections of the Hindu Religious Institutions Act 1950. Another remedy was told
to be in the hands of the Rajpramukh who could ensure the elections were held only
subsequent to the arising of the vacancy by the efflux of four years from the date of the
prior election. The Legislature was advised by the Court to introduce suitable
amendments to the 1950 Act, in this respect. Attention was drawn to the provisions of
section 70(3) of the Act which read as follows- "A member of the Board shall on the
expiration of his term of office continue in office until the vacancy caused by the
expiration of his term of office is filled up". Meanwhile, the High Court asserted that the
plain mandate of the statute was that the material date for appraising the existence or
otherwise of a disqualification was the date of election itself.
32

Another contention of the first respondent was based on Section 67(4) of the Hindu
Religious Institutions Act, 1950. It read as follows: - "Until an application has been
made under sub-section (2) and final orders are passed thereon, the member who is
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210

alleged to be subject to the disabilities stated in clauses (i), (ii), (iii), (iv), (v) and (vi) of
Section 66 shall be entitled to act as if he were not disqualified".
According to the first respondent the above provision was an effective answer to the
petition itself which was under Article 226 of the Constitution. Subsection (1) (2) and
(3) of the above section of the 1950 Act read as follows:-
(1) If a person elected or nominated as a member of the Board is or subsequently
becomes subject to any of the disabilities stated in clauses (i) (ii), (iv) and (v) of section
66 and is declared by a court to be under such disability as hereinafter provided or
becomes subject to the disability mentioned in clause (iii) of (v) of section 66, or
ceases to profess the Hindu religion, he shall cease to be a member.
(2) Any person interested may apply to the District Court Trichur for an order that a
member of the Board has become subject to any of the disabilities stated in clauses (i)
(ii) (iii) (iv) and (vi) of section 66 and the court may after making such enquiry as it
deems fit by order determine whether or not such member is disqualified.
(3) An appeal shall be to the High Court against an order under sub section(2) and
such appeal shall be heard and disposed of by a Division Bench".

After examining the relevant sub-section (i), the High Court opined that the use of the
word "becomes" was explicitly indicative of the fact that the said sub-section was not
pertaining to a disqualification under section 66(iii) which existed at the time of the
election but which arose later. The marginal heading of section 65, section 66 and
section 67, were "Qualification for membership in the Board", "Disqualification for
membership in the Board", and "Supervening disqualification", respectively. The
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211

Bench considered these marginal headings to be proper descriptions of the ambit of
the above three sections.
33

Unlike sub-section (1), sub-section (2) did not provide for the obtaining of the
declaration in those cases where disqualifications existed at the time of the election,
but merely confined the declaration possible to those cases where those disabilities
arose subsequent to the election. The Court also noted that the disqualification
enumerated in sub-section (v) of section 66 (conviction by a criminal court of any
offence involving moral turpitude) had been totally omitted from sub-section (2). The
very same disqualification was found to be present in section 8 (2) of the Hindu
Religious Institutions Act 1950, which dealt with the Travancore Devaswom Board.
The Bench opined that section 67 had nothing to do with the disqualification
enumerated in section 66(iii), if it had existed at the time of the election itself.
34

Finally, the election of the first respondent, Balakrishna Marar was declared void on
the ground that he was disqualified at the crucial date, the date of his nomination and
election on 4-6-1954, as he was the then Chairman of Trichur Municipality. This was
the consequence of him being an office-holder of a local authority, within the meaning
of subsection (iii) of section 66 of the Hindu Religious Institutions Act, 1950. However,
the second prayer in the petition, which was for the High Court to declare the petitioner
Govindan Kutty Menon as the properly authorized person to fill in the office of the
member of the Cochin Devaswam Board was not accepted. In this regard, the Court
opined that in cases where the returned candidate was found wanting in a
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212

qualification, and if the voters were ignorant of this deficiency, then the candidate next
on poll was not entitled to be seated and that there would merely be a fresh election.
35
The case was decided by Justices, Subramonia Iyer and M.S. Menon, on 7
September, 1954.

On ownership:
The dispute over the ownership of a temple was decided by the High Court on 10
December, 1961. Sree Bhoothapuram Kottale Temple, situated in Paralam Village, in
Trichur was owned by the Venmani illom. One Govinda Kaimal was the karyastha of
the temple under the illom, till his death. Later, there were disputes which led to civil
and criminal cases between the Venmani illom and the relations of Govinda Kaimal. At
the instance of Kunju Kaimal and Raman Nair, who were sons-in-law of Govinda
Kaimal, a petition dated 17 August 1951, was submitted to the Cochin Devaswom
Board for taking over the management of the temple and properties. The Board raised
the contention that the temple did not belong to the Venmani illom and that the latter
was only a trustee of the shrine. The temple was told to have been used as a place of
public worship by the Hindus of the locality. The District judge of Trichur, accepted the
contentions of the Cochin Devaswom Board and dismissed the suit instituted against
the latter by Kunhunni Nambudiripad, who was the then karanavan of the Venmani
illom. Soon, the plaintiff went on for appeal before the Kerala High Court, against the
above decree.
36


219
213

The two pertinent questions considered by the High Court were, whether the said
temple was owned by the appellant's illom and whether it was dedicated to or used as
of right by the Hindu Community as a place of religious worship. Differing from the
decision of the District Judge, Justice Velu Pillai opined that the temple was owned by
the appellant's illom. This realization was based on various documentary evidences. A
receipt for rent in favour of the illom had described the properties as belonging to that
household itself. Two other documents, which were counterparts of demises of the
year 1077 M.E (1901-02) and 1088 M.E (1912-13), contained a similar description.
The agreement for management of the temple, which the appellant's illom had given to
Govinda Kaimal, in1944, did describe the temple as 'our. Devaswom. Documents
of the year 1945, too contained a similar description. There was a receipt executed by
the heirs of Govinda Kaimal (his two daughters) in favour of the appellant's illom under
which they gave up all documents in their possession to the illom. An account book
that was maintained by Govinda Kaimal clearly had referred to the temple as
belonging to the illom. The High Court laid stress on documents, especially those of
the years 1879, 1902 and 1903, which pointed to only a single conclusion that the
temple was owned and not merely managed by the illom. The illom was nowhere
mentioned as an uralee or trustee. Terming the District judge's assertion that the origin
of the was lost in antiquity, as being an improper one, Justice Velu Pillai opined that
the issue was not how or when the temple was constructed but was as to its
ownership.
37

220
214

The witnesses who swore that some of the villagers used to worship at the temple,
were in some way or other, concerned in the litigations and disputes which arose after
the death of Govinda Kaimal. There was nothing in the oral evidence adduced by the
respondent to alter the inference that the temple was owned by the appellant's illom.
There was no evidence to indicate any dedications of the temple for the benefit of the
public. The High Court opined that even if worshippers have attended or they used to
attend the temples and were not turned out by the illom, no presumption could be
made that such worship or user was of right, once the temple was proved to be
belonging to the illom. It was told that once the private character of the temple was
proved, its use by the public could not be presumed to be as of right. The High Court
also declared that the facts such as the temple's location nearly 30 miles away from
the seat of the illom, the existence of a lane formerly and a public road now, by the
side of the temple compound, and the presentation of a lamp-post to the temple by a
stranger, were by themselves insufficient to deprive the illom of its ownership of the
temple. After a thorough examination of all aspects of the case, the court concluded
that the Sree Bhoothapuram temple was a private temple of the appellant Kunhunni
Nambudiripad's illom and that it had not been dedicated to or used as a place of Public
worship as of right by the Hindu Community. Accordingly, the order of the Cochin
Devaswom Board declaring the temple to be on 'institution' was set aside and the suit
decreed with costs against the Board.
38
The case was decided by Justice S. Velu
Pillai.


221
215

Transparency and Accountability:
Justices, K.S. Paripoornan and K.A. Nayar had together decided two notable cases
concerning the Hindu religious institutions. One such case was about the lack of
transparency in the Travancore Devaswom Board. The Examiner of Local Fund
Accounts had submitted a special report which related to the audit of special funds of
the Travancore Devaswom Board. It was pertaining to the Sabarimala Improvement
Fund, for the period from 17-11-1967 to 31-3-1976. The above audit was done in
response to the orders of the High Court dated 4-1-1975. On 27-3-1987, the Division
Bench passed an orders after examining the Audit Report, especially paragraphs 20 to
23. It dealt with the sale of Sabarimala Improvement Fund Tickets, Ayyappa Jyothi
Tickets and Deepa Dakshina Tickets. While the first of the above were printed directly
by the Devaswom Board, the rest were printed by the Sabarimala Amenties
Implementation Fund Committee. The Bench observed that a sum of Rs 7, 25,830.47
was due from several persons to whom tickets were issued. In its earlier orders dated
29-8-1979 and 19-12-1979, the High Court had directed the Devaswom Board to
submit report on the action taken by the latter for recovering the said amount. The then
Advocate General had opined that legal action was barred by limitation. Unveiling the
above facts, the Division Bench ordered the issuance of show cause notices to the
members of the Devaswom Board as well as the Sabarimala Amenities
Implementation Fund Committee, to show cause why the amount should not be
surcharged against them. The Board was asked to furnish the names and addresses
of such of these persons who were alive.
39


222
216

Notices were issued to M.K.K. Nayar, Swami Athuradas, Prakkulam Bhasi, V. Harihara
Subramony, P.K. Chandranandan, T.V.V. Pathy, P.R. Rama Varma Raja, and M.C.
Menon. The above individuals were directed to show cause why the amount involved
in the distribution of 8322 pictures of Lord Ayyappa and a sum of Rs. 7,25,830.47,
which was due from persons to whom Sabarimala Improvement Fund (SIF) tickets
were issued, should not be surcharged from them. Out of the eight persons to whom
notices were issued, M.K.K. Nayar and M.C. Menon had already passed away. Except
Prakkulam Bhasi, V. Harihara Subramony and P.K. Chandranandan, who were the
President and members of the Travancore Devaswom Board, the rest were merely
members of a committee formed in connection with the Sabarimala Improvement
Fund. Objections were filed on behalf of the above persons. The Board too, filed a
statement before the High Court.

The said notice issued by the Court on 27-3-1987 was in accordance with the section
32 of the Hindu Religious Institutions Act, 1950
40
. The above section read as follows-
Audit:-
(1) The Board shall keep regular accounts of all receipts and disbursements in respect
of the institutions under its administration.
(2) The accounts of the Board shall be audited annually.
(3) The audit shall be made by auditors appointed by the High Court.
223
217

(4) Every auditor appointed under this section shall be deemed to be a public servant
within the meaning of section 15 of the Travancore Penal Code.
(5) After completing the audit for any year or for any shorter period or any transaction
or series of transactions, as the case may be, the auditors shall send a report to the
High Court.
(6) The auditor shall specify in his report all cases of irregular, illegal or improper
expenditure, of failure to recover moneys or other property due to the Board or to the
institutions under their management or loss or waste of money or other property
thereof caused by neglect or misconduct.
(7) The auditor shall also report on any other matter relating to the accounts as may be
prescribed or on which the High Court may require him to report.
(8) The High Court shall send to the Board a copy of every Audit Report and it shall be
the duty of the Board to remedy any defects or irregularities pointed out by the auditor
and report the same to the High Court.
(9) If, on a consideration of the report of the auditor or otherwise the High Court thinks
that the Board or any member thereof was guilty of misappropriation or willful waste of
the funds of the institutions or of gross neglect resulting in a loss to the institutions
under the management of the Board, the High Court may, after giving notice to the
Board or the member as the case may be to show cause why an order of surcharge
against the Board or the member , and after considerating the explanation, if any, pass
an order as surcharge against the Board or the member as the case may be.
224
218

(10) The order of surcharge may be executed against the member or members
concerned of the Board as if it were a personal decree passed against them by the
High Court.
(11) An order of surcharge under this section shall not bar a suit for accounts against
the Board or the member concerned except in respect of the matter finally dealt with
by such order.
(12) A copy of the Audit Report shall be supplied to any person who duly applies for
the same.

Section 32(9) of the Hindu Religious Institutions Act 1950, had empowered the High
Court to pass an order of surcharge only against the Board or its members. This
contention was fully accepted by the Bench. As a result the proceedings against some
were dropped as they were only members of the Sabarimala Improvement Fund
Committee which was an ad hoc body. The Court found it unable to proceed against
them on the basis of section 32(9) of the 1950 Act.
41

The President and members of the Travancore Devaswom Board at the relevant time
were Prakulam Bhasi, V. Harihara Subramaony and P.K. Chandranandan. They were
represented by counsels, Mr. Babu, K.S. Rajamony and Siri Jagan. They highlighted
the fact that the various aspects which formed the basis of the said legal proceedings
had taken place more than two decades ago. The adverse state of health of the former
President and members of the Board, referred to and others concerned with the case,
225
219

was brought to the attention of the High Court. However, it was also asserted on
behalf of the above parties that they had only worked for the development of
Sabarimala. The High Court took serious note of the lapse of 22 years which had
become an impediment in the way of a satisfactory and effecting adjudication. At this
juncture, the Court threw light on the need to have the audit report submitted at the
end of each year. It was observed that the provisions of the 1950 Act were insufficient
to saddle liability on persons who deal with the funds of the Board or on behalf of it.
The loose provisions in the said Act were told to have made the audit a meaningless
ritual. The Court drew the attention of the Government towards the need to have
effective statutory provisions, in this regard.
42

During the sixties, the inflow of pilgrims to Sabarimala increased substantially. In order
to provide the necessary amenities for the pilgrims, the Travancore Devaswom Board
held informal discussions with the Ayyappa Seva Sangham and other organizations
dedicated to render service to the pilgrims. As a result, a Sabarimala Development
Committee was constituted. The then members of the Devaswom Board, the
Devaswom Commissioner, the Works Engineers of the Board and 150 representatives
hailing from different parts of Kerala and outside the State, attended the meeting. It
was held on 23-10-1967 at the Sri Chitra Central Hindu Religious Library at
Thiruvananthapuram. M.K.K. Nayar was the organizing Chairman and one P.
Sadasivan Pillai functioned as the Chairman of the Implementation Committee. The
then President and members of the Travancore Devaswom Board took part in various
deliberations and thus showed active interest. Subsequent meetings of the Sabarimala
226
220

Development Committee took place in various dates. On many occasions, M.K.K.
Nayar presided over such meetings. The participation of the President and members
of the Devaswom Board was seen in all those meetings. Soon, an Executive
Committee was formed with M.K.K. Nayar as its Chairman. The President and
members of the Devaswom Board were the members of the above Executive
Committee. The Secretary of the Board functioned as the ex-officio Chairman of the
Committee.
43

The collection of funds was made by the Sabarimala Amenties Implementation
Committee. P. Sadasivan Pillai was its Chairman, and in that capacity he appointed
many organizers within and outside Kerala. Tickets were printed by the Board for the
collection of funds. The President and members of the Board, including its Secretary
and the Works Engineer were participants in the deliberations which took place from
time to time. As such they were fully aware of the developments in this respect. The
funds collected by the Sabarimala Development Committee were entrusted to the
Travancore Devaswom Board for the utilization of that amount for the developmental
works at Sabarimala.
44

The accounts of the said committee were kept separately. They were told to be not
part of the Devaswom funds. It was argued on behalf the President and Members of
the Devaswom Board that the proceeding initiated under section 32 of the Hindu
Religious Institutions Act, 1950 was ill-conceived as the funds dealt with were neither
Devaswom funds nor those belonging to the institution under the management of the
227
221

Board, as envisaged by section 25 of the 1950 Act. It was told that the committee for
the Sabarimala Improvement Fund was not composed of the President and Members
of the Devaswom Board alone. It was an ad hoc committee formed by the pilgrims and
leading public figures. It was further stated that the mere presence of the President
and Members of the Board in the deliberations of the Committee could not in any way
render the funds of the latter as one belonging to the Devaswom Board or any
institution under its management. It was argued that the President and members of the
Board could not be proceeded against under Section 32 of the 1950 Act for
misappropriation of non-accounting of the funds collected by an ad hoc committee.
45

In this regard, the High Court drew the attention of all to the provisions of section 25 of
the Travancore-Cochin Hindu Religious Institutions Act 1950. The said section read
as follows.
"Devaswom Fund:- (a) The Devaswom Fund constituted for the Devaswom mentioned
in Schedule I shall consist of
(1) the sum of fifty one lakhs of rupees mentioned in Article 238(10)(ii) of the
Constitution of India as payable to the Devaswom Fund;
(2) the money realized from time to time by the sale of movable properties
belonging to the said Devaswom;
(3) all voluntary contributions and offerings made by devotees.
(4) profits and interest received from investments of funds belonging to the said
Devaswoms and
(5) all other money belonging to or other income received by the said Devaswoms.
228
222

(b) Out of the sum of fifty one lakhs of rupees mentioned in clause (1) of the
proceeding subsection, an annual contribution of six lakhs of rupees shall be made by
the Board towards the expenditure in the Sree Padmanabhaswami temple".

The Travancore-Cochin Hindu Religious Institutions Act, 1950 had the following
preamble:-
"WHEREAS it is necessary to make provision for the administration, supervision and
control of incorporated and un incorporated Devaswom and of other Hindu Religious
Endowments and Funds".

The Bench observed that all collections made in any manner including all offering and
contributions were to form part of Devaswom Funds. However, they added that the
liability of the Board or its members or officers would depend upon the facts and
circumstances of each case, in the light of section 32 of the 1950 Act. The Board was
told to have a duty to oversee such collections and to take appropriate steps to ensure
the proper utilization and accounting of such funds. The Court told the members of the
Board that the latter could not plead for protection from proceeding under section 32(9)
of the 1950 Act. Highlighting the fact that the President and members of the Board
were the members of the committee which had collected the funds, the Court held
them accountable and responsible. It was also observed that the collection was made
in connection with an institution under the management of the Board. By quoting
section 25, the Court observed that all voluntary contributions and offerings made in
229
223

connection with an institution under the management of the Board would constitute the
Devaswom Fund. The President and members of the Board were told to be trustees of
the said funds. The High Court held that the Board and its members could not escape
from their accountability regarding the wastage of funds relating to the Sabarimala
Improvement Fund. The Court pronounced them liable to be proceeded against under
Section 32(9) of the 1950 Act, for acts of omissions or commission specified by section
32(9) of the Act. The Court sought to fix statutory liability on the member of the Board.
The various activities and collections pertaining to the Sabarimala Improvement Fund
had taken place over twenty years ago. This delay was considered by the Court, to be
a serious lapse. The Bench also observed that the funds collected were utilized for the
projects envisaged by the Committee which had improved the facilities for the pilgrims
at Sabarimala. This was told to have augmented the recurring income of the great
shrine.
46

The Audit Report had shown that a sum of Rs.7, 25,830.47 was due from several
persons, to whom tickets were issued. No steps were taken to collect the amount
Tickets were entrusted to the members of the Implementation Committee. The
persons who were having an overall supervision of the whole matter were men of
stature who volunteered to collect funds with a philanthropic motive. The Court refused
to believe that such individuals had worked dishonestly. It was observed that the
committee as well as M.K.K. Nayar and others, had voiced their concern in some
members not having rendered detailed accounts or in not having remitted the amounts
that could have been collected and for not having returned the unsold tickets and
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224

such. The High Court however admitted that it had no evidence to show that the
President and members of the Board had willfully shut their eyes to any act of
misappropriation. Section 32(9) of the Act was told to have referred to intentional acts
of commission, and not accidental ones.
47

Finally, on 25 July, 1989, the High Court held that the President and members of the
Board could not be surcharged on account of lapses told in the Audit report. At the
same time, the Bench reminded these office bearers of their public accountability, and
the need to submit audit report, periodically. The authorities were reminded of the
need to enact appropriate legislation in order to earn the confidence of the Public in
institutions such as the Devaswom Board.
48

The question of religious belief:
On another occasion, Justices, K.S. Paripoornan and K.A. Nayar decided a different
case which the question of religious belief of the persons elected to the Devaswom
Boards was raised. In 1989 when vacancies arose in the Travancore and Cochin
Devaswom Boards, K.K. Sankara Ganakan, who was formerly a District Judge, acted
as the authorized person under sections 5 and 64 of the Travancore-Cochin Hindu
Religious Institutions Act 1950 and issued a notice dated 13-6-89 to all Hindu
Legislators of the State of Kerala. The latter were thereby asked to attend a meeting
on 6-7-89 at the Durbar Hall of the Government Secretariat at Thiruvananthapuram.
The purpose of the above meeting was to elect a member each to the Travancore and
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Cochin Devaswom Boards. It was stated that the election would be held according to
the following Rule-"3(b) The person nominated shall affix his signature to the
nomination paper before it is delivered to the Chairman, stating that he believes in God
and professes the Hindu Religion and believes in temple worship and that he is willing
to serve as a member of the Board, it elected".

It was later told that Rule (b) as extracted above was a mistake crept in because the
Rules amended by Ordinance No.86 of 1984
49
were wrongly adapted. The amendment
had not taken effect as the ordinance had lapsed. As a result the mistake was rectified
by a circular dated 28-6-1989. This led to persons submitting nomination papers not
having to declare his belief in God and temple worship. Section 6 of the 1950 Act had
only provided for such persons to be permanent residents of the Travancore-Cochin
region, having attained 35 years of age and professing Hindu religion.

Hence, the correct Rule 3(b) read as follows-3(b) Any Hindu member of the Legislative
Assembly of the State of Kerala may nominate to duly qualified person who is not
subject to any disqualification for election as the member of the Board by delivering to
the Chairman between the hours fixed by the Chairman for the receipt of nomination
papers a nomination paper signed by the propose and another Hindu member of the
Legislative Assembly of the State of Kerala as seconder and staffing the name of the
person nominated. The person nominated shall affix his signature to the nomination
paper before it is delivered to the Chairman stating that he is willing to serve as a
member of the Board if elected".
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On 15-4-1989, Muraleedharan Nair (petitioner) sent a memorandum to the Governor
of Kerala requesting the latter to permit only those Hindu legislators who give
declaration that they believe in God and temple worship to participate in the process of
electing a member to the Devaswom Board. The memorandum further stated that the
term "Hindu Members" meant only those persons who professed Hindu religion and
believing in God and temple worship. Apprehending that non-believers might be
permitted to participate in the election, the Governor was requested to fill up the
membership in the Travancore Devaswom Board which had fallen vacant due to the
expiry of the term of the outgoing member of the Board, Saraswathi Kunjukrishnan.
The authorized representative commissioned by the Governor for the conduct of the
election, was requested to be given necessary directions in its regard. However, this
request did not materialize. Hence, the petitioner filed an Original Petition praying to
quash the notice issued to Hindu Legislators which had allowed them to participate in
the said election, without giving a declaration that they had belief in God and Temple
worship.
50

When the above Original petition came up for admission on 5-7-1989, the High Court
allowed the proposed election to the Devaswom Boards of Travancore and Cochin by
the members of the Kerala State Legislative Assembly, to go on as scheduled on 6-7-
1989. However, it was directed that the elected candidates could not take charge until
the issuance of further orders by the Court. The said election was held as scheduled.
233
227

V. Akhileswaran and K.G. Venugopal were elected to the Travancore and Cochin
Devaswom Boards, respectively.

Originally, the petitioner had challenged the election to both the Devaswom Board of
Travancore and Cochin. However, in the light of the fact that the member to the
Cochin Devaswom Board was elected unopposed, the argument was confined
selectively to the Travancore Devaswom Board. The argument on behalf of the
petitioner was that the legislative intent behind the Travancore-Cochin Hindu Religious
Institutions Act, 1950 was to confer the right to vote and stand for election for election
for membership of the Board to only those Hindus who believed in God and temple
worship. It was contended that if the term 'Hindu' occurring in the 1950 Act was
interpreted as any person being a Hindu by birth irrespective of any belief in God and
Temple worship then the very purpose of the Act would be defeated. In this context,
attention of the Court was drawn towards the Travancore -Cochin Hindu Religious
Institutions (Amendment) Ordinance, 1984. The purport of the said Ordinance was to
define Hindu as person who believed in God and Temple worship and Hindu religion.
Unfortunately, the Ordinance lapsed and it was not substituted by an Amending Act.
The petitioner opined that any other interpretation to the term Hindu was liable to
violate the guarantee provided under Articles 25 and 26, of the Constitution. It was
further contended that a large number of members of the then ruling party, CPI(M),
who happened to be Hindu by birth, did not believe in God or Temple worship, and
that the administration of temples should not be entrusted to a Board elected by them.
The very same argument was applied in the matter of the nomination made by the
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228

Hindus among the Council of Ministers. The petitioner expressed his fear that non-
believers would destroy the temples and such religious institutions.
51

Contrary to the above view, the respondents submitted that the duties and functions of
the Devaswom Board were purely administrative in character and that religious
aspects were decided by the thantris. Harping on the point that the 1950 Act was not
intended to meddle with religious matters, it was claimed that belief in God and temple
worship, were not essential for a person to be a member of the Devaswom Board.
Turning to the pages of history, the Advocate General reminded the Court that an
amendment defining the term 'Hindu' intended to exclude those who do not believe in
temple worship, was once introduced in the Legislature of the erstwhile United State of
Travancore-Cochin. The above amendment was put to vote and defeated by a huge
majority. The Kerala State Legislature had also made an attempt in 1984, to define the
term Hindu. However, it too did not fructify into an Act of legislature.
52

The High Court examined same of the provisions of the Hindu Religious Institutions
Act, 1950. The preamble of the Act read as follows- "WHEREAS it is necessary to
make provision for the administration, supervision and control of incorporated and
unincorporated Devaswom and of other Hindu Religious Endowments and Funds".
Section 2(b) had defined Hindu Religious Endowment, in the following words:-
"(i) every Hindu temple or shrine or other religious Endowment, dedicated to, or used
as of right by the Hindu community or any section thereof; and
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229

(ii) every other Hindu endowment or function, by whatever local designation, known
and property, endowments and offerings connected therewith, whether applied wholly
to religious purposes or partly to religious and partly to charitable or other purposes
and every express or constructive trust by which property or money is vested in the
hands of any person or persons by virtue of hereditary succession or otherwise for
such purposes".

Section.3 provided for the vesting of the administration of incorporated and un-
incorporated Devaswoms and of Hindu Religious Endowments, including their
properties and funds in the Devaswom Board. Section 4 dealt with the composition of
the Board while section 5 pertained to the procedure for the election of the members of
the Board. Section 6 explicitly stated that a person shall not be qualified for nomination
or election as a member, unless he professes the Hindu Religion. The High Court
observed that only those who had faith in God and Temple worship were to be meant
by the term 'Hindu' in the 1950 Act. The Court stated that only such persons could be
aware of the efficacy, necessity and importance of Temple worship.
53

An important contention which rose before the Court was that any persons professing
Hindu religion were not necessarily believers in Temple worship and rituals. However
the Bench opined that if the purpose of section 4 and 6 of the 1950 Act was only to
see that Board consisted of Hindus merely professing Hindu religion, then, the
exclusion of non-Hindus among the Ministers and Legislators from participation in the
election process to the Board would not have been there. It was observed that the
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230

qualification to be a member of the Devaswom Board and to be a member of the
Electoral College was intended to be one and the same, namely, faith in God and
Temple worship. After examining the constitutional powers and duties of the Board,
the High Court opined that if the administration of the Board falls in the hands of non-
believers, the result would be disastrous. While considering various interpretations
given to the word 'Hindu', the Court declared that in the normal practical and
meaningful sense, idol worship could be regarded as the core of the prevalent Hindu
religion and that it was too late to be questioned. Attention was drawn to the fact that
the erstwhile ruler of Travancore, who was a devout Hindu, ruled the State as the
servant of the presiding deity of Sree Padmanabhaswami Temple. Moreover all the
Devaswom properties were vested in the Ruler not by way of confiscation but as a
trustee for its proper and efficient management. Temples were told to have flourished
because of the unabated faith and will of the denomination which comprised the
Hindus who had faith in God and Temple worship.
54


Finally, the High Court declared that only those Hindus who believed in God Temples
could get nominated or vote at the election to elect the members of the Devaswom
Board. As a result, the election conducted to the Travancore Devaswom Board was
quashed and directions were issued, on 10 April, 1990, to the respondents to conduct
fresh elections.
55



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231

Priesthood and caste:
In 1995, the Kerala High Court delivered a significant verdict concerning priesthood in
temples. The Kongorpilly Siva Temple at Alangad village in Ernakulam District was
administered by the Travancore Devaswom Board. On 6-8-1993, one K.S. Rajesh, a
non-Brahmin, was appointed as the Santhikaran (Poojari) of the above temple in the
vacancy of one Mohanan Pootti. On 8-10-1993, a letter was sent by the Assistant
Commissioner of the Devaswom Board to a subordinate officer of the locality informing
the latter about the new appointment.

Adithayan, a Malayala Brahmin objected to the appointment of a non-Brahmin as the
santhikaran of the said temple. He brought the issue before the High Court of Kerala
by invoking Article 226 of the Constitution
65
. It was claimed that the appointment of a
person who was not a Malayala Brahmin as poojari of a temple was opposed to the
recognized usage followed. The petitioner contended that none other than a Malayala
Brahmin had conducted poojas in the said temple and that it had become a recognized
usage. The case was confined to the Siva Temple in question and the counsel for the
petitioner did not press for the application of the usage to the other temples in Kerala.
Quoting sections 24 and 31 of the 1950 Act, it was told that the Devaswom Board was
duty bound to follow the aforesaid usage prevalent at that place. The petitioner further
contended that his fundamental right as enshrined in Articles 25 and 26 of the
Constitution was in danger if he was unable to offer worship in accordance with the
recognized practice. The prayer in the petition was for questioning the said
appointment.
57
238
232


The above Original Petition was found to be one of public importance. Hence the
single judge who admitted the petition referred it to a Division Bench. However, the
single judge himself stayed the operation of the order appointing K.S. Rajesh as the
santhikkaran of the Siva Temple. The Division Bench which considered the matter
referred it to a Full Bench. The contentions of the petitioner were repudiated by the
Travancore Devaswom Board through the affidavit sworn to by its secretary. The Sree
Narayana Dharma Paripalana Yogam was also allowed to be impleaded as a party for
it had came forward to defend the decision of the Devaswom Board.
58

Elaborating its stand, the Board threw light on the existence of two categories of
poojaries. The karaanma santhikars held office on the basis of hereditary rights while,
the non-karaanma santhikars were appointed on the basis of selection made by the
Board after interviewing the candidates. A panel comprising the President and
members of the Devaswom Board, the Devaswom Commissioner and a competent
thanthri, was the body designated to interview the candidates. The Board
unequivocally asserted that there was never an insistence on the santhikaran to be a
Brahmin. On the contrary, it was revealed that candidates, irrespective of their caste
had been appointed as priests in various temples. As early 1969, the Devaswom
Board had approved a programme for training santhikars under the direction of Swami
Vyomakesananda who was the then President of Ramakrishna Ashramam. In the
beginning ten Hindu students irrespective of their caste were selected for imparting
training as santhikars. Successive batches began to have eleven trainees. On their
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completion of the course, the trainees were subjected to a ceremony of upanayanam
inorder to enable them wear the "sacred thread". To substantiate its contention the
Devaswom Board submitted details of non-Brahmins who were appointed as
santhikars during the previous decade.
59

The High Court analysed the appointment of K.S. Rajesh in the light of sections 24
and 31 of the Hindu Religious Institutions Act 1950.
Section 24 read as follows:-
" The Board shall, out of the Devaswom Fund constituted under section maintain the
Devaswoms mentioned in schedule I, keep in a state of good repair the temple
buildings, and other appurtenances thereto, administer the said Devaswoms in
accordance with recognized usages, make contribution to other Devaswoms in or
outside the State and meet the expenditure for the customary religious ceremonies
and may provide for the educational uplift, social and cultural advancement and
economic betterment of the Hindu Community".

Section 31 read as follows:-
" Subject to the provisions of this part and the rules made there under the Board shall
manage the properties and affairs of the Devaswoms, both incorporated and
unincorporated as hereto before; and arrange for the conduct of the daily worship and
ceremonies and of the festivals in every temple according to its usage".
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234


The High Court opined that the word "usage" employed in the above provisions could
not be understood as capsulating the caste identity of the persons holding any office.
The Court refused to construe it as an entitlement of a person to hold a particular
office. Reference was made to Article 13

of the Constitution of India
60
, in this regard.
While defining the word "law" for the purpose of the Article, "custom" and "usage",
were treated differently. It was finally told that the word "usage" in section 24 and 31 of
the 1950 Act was not capable of legalizing the practice if any, of appointment of a
person on the basis of his caste in respect of any office. The High Court refused to
approve any usage by which persons belonging to one particular caste alone were
employed in any office, be it priesthood or otherwise. Attention was drawn to the
peremptory language contained in Article 13(2) of the Indian Constitution which
interdicted the making of any law abridging the fundamental rights. Moreover, Article
15 (1)
61
was told to have forbidden the State from discriminating against any citizen on
the grounds of race, religion, caste etc. Under Article 16(2)
62
the State was restrained
from discriminating against citizen on the above grounds, regarding the eligibility to
hold any employment or office under the State. The exception provided in sub-article
(5) of Article 16
63
was told to be incapable of insulating any usage based on caste. It
was also stated that the right under Article 25 of the Constitution
64
existed subject to
other fundamental rights enumerated in Part III of the Constitution.


Taking the clue from Article 17 of the Constitution, the Parliament had passed the
Protection of Civil Rights Act, 1955
65
. Section 3 of the above Act had prescribed a
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punishment of imprisonment for not less than a month for persons obstructing any
religious service on the ground of untouchability. Finally, the counsel for the petitioner
took refuge under Chapter VII of Volume I of the "Travancore Devaswom Manual,"
claiming it to be the authority which had designated priesthood solely to Brahmins.
However, this contention too, failed to impress the Bench. As a result, the stay order
passed at the admission stage of the petition was vacated and the concerned
authorities were directed to allow K.S. Rajesh to hold the office of santhikaran to which
he was appointed by the Travancore Devaswom Board. This historic judgement was
delivered on 4 December, 1995.


GURUVAYOOR DEVASWOM:
The ooraima right over the Guruvayoor Sreekrishna Temple was hereditarily vested
jointly in the Zamorin Raja of Calicut and the Karanavan of the Mallisseri illom at
Guruvayoor. This fact was explicitly recognized by the Madras High Court in its
judgment of 1 November 1889 (in the Appeal No.35 of 1887). The Madras Hindu
Religious Endowments Act

came into force on 8 February, 1927.
66
This led to the
constitution of the Hindu Religious Endowments Board. Soon, a petition was filed
before the Board accusing the hereditary trustees of mismanagement of the affairs of
the Temple. As a result, the Board instituted an enquiry which culminated in a new
scheme of administration for the Guruvayoor Temple. This was on the strength of
section 63(1) of the Madras Act. Unfortunately, the new scheme blatantly disregarded
the position of Mallisseri Namboodiri by entrusting the management of the institution
exclusively to the Zamorin Raja. The Karanavan of the Mallisseri illom instituted a suit
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236

(O.S.No.1 of 1929) in the District Court of South Malabar at Calicut under section
63(4) of the Madras Hindu Religious Endowments Act. It prayed for amendment of the
scheme settled by the Hindu Religious Endowments Board by recognizing his rightful
position as joint-Ooralan of the Guruvayoor Devaswom. Another petition was filed by
the very same persons on whose petition had led to the framing of the very scheme by
the Board. This new petition (O.S.No.2 of 1929) in the District Court contented that the
Board had not incorporated sufficient safeguard in the scheme for ensuring proper
management. The petition prayed for amending the scheme by making provision for
the appointment of additional non-hereditary trustees and placing the management in
the hands of a Board of five trustees, three of when were to be nominated by the
Board. The District Court upheld the claim of Mallisseri Nambudiri to be a joint
hereditary trustee of the Guruvayoor Temple, along with the Zamorin Raja. The court
also effected certain changes in the scheme of administration by the Hindu Religious
Endowments Board for ensuring proper working of the Devaswom.

Opposing the above decision of the District Court, the Zamorin Raja filed appeals
before the Madras High Court (A.S.Nos.211 and 212 of 1930). These were disposed
of by a Division Bench on 21 November, 1930. The judgement confirmed the right of
Mallisseri Namboodiri to function as joint-ooralan of the Temple. The District Court had
declined to make provision for the appointment of non-hereditary trustees. This was
upheld by the Division Bench, which, incorporated new safeguards in the scheme of
administration of the Guruvayoor Devaswom. One such new provision so incorporated
in the scheme was that of the trustees putting up a public notice intimating the date
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and time of opening of the Bhandarams, sufficiently in advance so as to enable
interested persons to be present on those occasions. That the entries regarding cash
and jewels found in the Bhandaram should be attested by atleast two of such
members of worshipping public, was made obligatory.

The management of the Temple was carried on accordingly until 1933, when a suit
was filed by some worshippers (O.S.No.1of 1933) praying for the modification of the
then existing scheme of administration. In accordance with the decree passed in the
fresh suit, minor changes were effected in the aforesaid scheme, by the District Court.
This modified scheme continued to guide the Guruvayoor Devaswom even after the
enactment of the Madras Hindu Religious and Charitable Endowments Act, 1951,
which came into force on 30 September, 1951.
67

This dispensation lingered on even after the formulation of the linguistic State of
Kerala on 1 November, 1956. Later, in 1965, the then Commissioner of the Hindu
Religious and Charitable Endowments(Administration) Department, filed a petition
(OP.No.3 of 1965) in the Subordinate Judges Court at Trichur, under section 62(3) (a)
of the Madras Hindu Religious and Charitable Endowments Act, 1951. The said
petition prayed for the modification of the then existing scheme for the Guruvayoor
Temple. A draft scheme was also submitted along with the petition. While, the
petition, was pending before the subordinate judges court, the Kerala Legislative
Assembly passed the Guruvayoor Devaswom Act in 1971.
68
244
238


Soon, the managing trustee of the Guruvayoor Temple, Manavedan, and the co-
trustee, petitioned the High Court challenging some of the provisions of the
Guruvayoor Devaswom Act of 1971 were. Serious contentions were raised against
clauses (a), (b) and (g) of section 10 and clause (b) of section 27 (2). The petitioners
claimed that the above provisions offended clauses (b) & (d) of Article 26 of the
Constitution. Important provisions of the Guruvayoor Devaswom Act were analyzed by
the High Court, section 3 of the Act vested the administration, control and
management of the Guruvayoor Temple, its properties and endowments and the
subordinate temples attached to it, in the Guruvayoor Devaswom Management
Committee. The above Committee was a body corporate having a common seal and
perpetual succession. The Committee was to sue and be sued by the name of the
Administrator. Section 4 postulated the composition of the Committee. Section 5 dealt
with the tenure of office of non-official members, their registration and removal; clause
(e) of subsection (3) of the above section provided for the removal of a member of the
Committee by the Government. Section 6 empowered the Government to deal with the
dissolution and supersession of the Committee. Section 10 concerned itself with the
duties of the Committee. Section11 imposed some restrictions on the powers of the
Committee in alienating movable and immovable properties of the Guruvayoor
Devaswom. Section12 laid down certain limitations on the power of borrowing and
lending by the Committee. Section 13 provided for the submission of Annual
Administration Report to the Government. Section 14 empowered the Government to
appoint an Administrator who was to be not below the rank of a Deputy Collector or
Deputy Commissioner. If the Administrators office happened to be temporarily vacant,
245
239

the Government could appoint another officer who was to have additional charge of
the office of the Administrator. This was by virtue of section 16. While section 17 dealt
with the powers, and duties of the Administrator, Section 18 conferred on him certain
extraordinary powers in cases of emergency. Section 19 too conferred on the
Administrator, certain powers.
69


Section 20 dealt with the appointment of officers and employees of the Guruvayoor
Temple by a Board consisting of the Commissioner (functioning under the Madras
HR& CE Act), and the Administrator, including two persons appointed by the District
Collector. The Managing Committee too, was to elect two persons among themselves,
to the Board. Section 21 to 23, were regarding the Budget & Audit. Section 24 created
the Sree Guruvayoor Temple Fund. Section 25 conferred on the Government the
power to call and examine the records of the Administrator or of the Committee or of
the Commissioner. This was told as a measure to satisfy the Government themselves,
of the regularity correctness, legality or the propriety of such proceedings. Section 26
empowered the Government to make Rules. Sub-section (2) (c) of the section enacted
that such Rules provided for the performance of duties by the Committee under
section 10 and the mode and extent of the expenditure under section 24. The Rules so
made had to be laid before the Legislative Assembly. Section 27 empowered the
Guruvayoor Devaswom Managing Committee to make regulations subject to approval
of the Government. Section 28 enabled the Committee to take possession and to be in
possession, of all the movable and immovable property of the Devaswom. Section 32
constituted the Renovation Executive Committee. The said Committee was to
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240

constitute the Sree Guruvayoor Renovation Fund, which was to be administered in
accordance with the directions of the Government. Assuming power under Section 26
of the Guruvayoor Devaswom Act, 1971, the State Government framed the
Guruvayoor Devaswom Rules.
70

Article 26 of the Constitution provided every religious denomination with the right to
manage its own affairs in matters of religion and to administer its property. The
counsel for the petitioners argued that the latter were the representatives of the
denomination to whom the temple and the Devaswom belong. The vesting of the
administration and control of the Devaswom in the Committee by section 3 of the Act
was told to have deprived the denomination and its representatives, of the right to
administer, control and manage the Devaswom. It was also argued that the functions
of the Committee included matters relating to religion as contemplated by clause (b) of
Article 26.
71


The High Court opined that the provisions of the 1971 Act which were specifically
attacked did not touch matters pertaining to religion. It was observed that the section
10 (a) began with the expression subject to the customs and usage in the Temple.
Quoting the said words, the Bench said that the rights of the Committee were subject
to the custom and usage of the temple. The jury also stated that clause (b) and (g) of
section 10, too did not touch matters of religion. The Bench had a similar opinion
regarding section 27 (2) (b). The Bench opined that the Devaswom Managing
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241

Committees powers were all outside matters pertaining to religion. The petitioners
were told that they were free to exercise all their religious functions.
72

The composition of the Committee as postulated by Section 4 of the Act, vested the
power of the Committee in the nominees of the Government as they were in a
majority. The Government was thus able to control the Devaswom. In this regard Rule
4 framed under the Section, was taken into consideration. The Governments counsel
however argued that the validity of the provisions of the very Act could not be tested or
judged in the light of the Rules framed under the Act. He contended that the provisions
of the Act cannot be held un-constitutional if a mere Rule is ultravires. The Act was
attacked on the ground that it offended Articles 26(b) and 26(d) of the Constitution of
India. This argument was totally rejected by the High Court.
73


However, the Bench sounded a note of caution against Rules 4 and 10 framed under
the provisions of the Act. Rule 4 kept the Committee at the mercy of the Government if
the Administrator happened to disregard the formers wishes. Rule 10 empowered the
Committee not only to fix the rates of vazhipadu but also determine the proportion to
be given to the Devaswom. The Court advised the deletion of the said Rules as they
were found to be outside the scope of the Act. The case was decided by a Full Bench
consisting of Chief Justice T.C. Raghavan and Judges, V.P. Gopalan Nambiyar and G.
Vishwanatha Iyer on 14 July, 1972.
74

248
242

The Guruvayoor Devaswom (Amendment) Act, of 14 November 1972 intended to give
a formal shape to the Renovation Committee and proposed to install the Minister for
Devaswoms, as the head of the body. This was entirely new concept which was
absent in the Guruvayoor Devaswom Act, 1971.
75
The Renovation Committee was
actually not intended for receiving contributions alone. It also carried the responsibility
of overseeing the proper spending of the funds collected for the particular purpose.
Already, there existed the Managing Committee and an Administrator to decide on
matters pertaining to Guruvayoor Devaswom. The latter was an IAS officer. Strangely,
the Secretary of the Renovation Committee was not an officer of the State
Government.

The most formidable challenge to the Guruvayoor Devaswom Act appeared in 1977. A
petitioner, named Krishnan, contended that sections 3, 4, 5(3)(c), 5(5), 11, 14, 15, 20,
24(3), 25 and 32 of the Guruvayoor Devaswom Act, 1971, were violative of Articles
25(1) and 26 of the Constitution
76
of India on the ground that they abridge and
interfere with to right of the denomination consisting of Hindus believing in temple
worship, to practice their religion freely and maintaining their religious institution (the
Guruvayoor temple) and administer its properties accordingly. It was stated that the
cumulative effect of the totality of the provisions present in the Act was to usurp the
management and control of the Guruvayoor Temple, its properties and funds from the
denomination and to vest it in the Government of Kerala. The petitioner opined that
under the pretext of legislating for the better management of the institution, the
legislature had virtually invested the Government with absolute control over the
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243

religious and secular affairs of the Guruvayoor Devaswom. The Act was accused of
having conferred arbitrary powers on the Government, by empowering it to nominate
14 out of the 17 members who constituted the Committee. The Government also had
the power to remove any of such nominated members at its will. The petitioner
affirmed that the Managing Committee was devoid of independence and was reduced
to an agency of the Government. The Act was alleged to have provided for the State
Government to supersede the Managing Committee. The petitioner argued that
section 4 had the effect of enabling the Government to nominate even those who were
totally opposed to the practice of temple worship. That the denomination was
completely kept out the Committee and the lack of any mechanism for ascertaining
their wishes was also stressed, at this juncture. The Committee was not answerable to
the denomination and none of its acts could be called in question by members of the
denomination by any method, either before a civil court or before any other authority.
Citing the above fact, the petitioner contended that the Committee was not the
representative of the denomination. The Madras Hindu Religious and Charitable
Endowments Act, 1951 and the Travancore-Cochin Hindu Religious Institutions Act,
1950, were told to be having better provisions which enabled the worshipping public to
adopt suitable measures to correct any act of maladministration on the part of the
concerned authorities.
77

It was also raised that all the powers were actually invested in the Administrator
appointed by the Government and that the Managing Committee had no effective
control over him. Moreover, the power to appoint the employees of the Guruvayoor
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Temple was not given to the Managing Committee. On the contrary, a separate body,
(the Board constituted under Section 20) was created to perform the said task. This
Board had five members, out of which three were full-time officers of the State, while,
and the rest two, were elected by the Managing Committee. Thus it was sought to
prove that the Managing Committee was a means to camouflage the usurpation of
effective authority by the State Government.

Section 24 of the Act had created the
Sree Guruvayoor Temple Fund, under the control of the Managing Committee.
Clause(f) of sub-section(3) of section 24 had authorized the Committee to divert the
trust funds with the sanction of the Government, for even those purposes which were
having no connection whatsoever with the Guruvayoor Temple. Such diversion of trust
funds for secular purposes was contended to be totally opposed to the established
custom, traditions and usage of the Temple. The diversion of trust funds was permitted
irrespective of whether or not surplus would be available after meeting all the
requirements of the Devaswom.
78



Section 32 of the 1971 Act provided for a Renovation Executive Committee, which was
a separate body, wholly independent of the Managing Committee. The former was not
answerable to the latter in any manner. Unlike the Managing Committee, the
Government did not camouflage its controlling hand with regard to the Renovation
Executive Committee, which was headed by none other than the Minister for
Devaswoms, in Kerala. All of the thirty members of this Committee were appointed by
the State Government. The petitioner submitted that the denomination was left without
any remedy to check and correct instances of maladministration of funds by the
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Renovation Executive Committee. It was also urged on behalf of the petitioner that
work of renovation was an integral part of temple administration and that there was no
justification for setting up an independent committee for the said purpose, and
authorizing it to collect funds on behalf of the Devaswom. The State was accused of
having nationalized the Guruvayoor Temple by divesting the deity of its proprietary
right over the Temple funds and by providing for the diversion of such funds,
irrespective of the availability of any surplus. This was pointed out to be an explicit
violation of the principle of equality guaranteed by Article 14 of the Constitution of
India.
79

The respondents claimed that the provisions of the impugned Act were reasonable
ones, solely for ensuring better administration of the Guruvayoor Temple. Attention of
the High Court was drawn towards the unsatisfactory state of affairs at the said temple
owing to the inadequacy of the earlier scheme which was based on the Madras Hindu
Religious and Charitable Endowment Act, 1951. As early as in 1965, the
Commissioner of the Hindu Religious and Charitable Endowments had approached
the Sub-Court at Trichur, praying for amendment of the scheme of administration of
the Guruvayoor Devaswom. This petition gathered dust in the Court. The fire accident
of 25 November, 1970 provided the Government, the impetus to launch effective
action. As a result the Guruvayoor Devaswom Ordinance was promulgated on 9
March, 1971, which was subsequently replaced by an Act of the State Legislative
Assembly.The allegation that the Temple and its worshipers were arbitrarily singled
out in violation of Article 14 of the Constitution, was strongly denied by the
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respondents. On the contrary, they opined that 1971 Act touched only the secular
affairs of Guruvayoor Devaswom and that religious matters continued to be performed
in accordance with their custom and usage in the Temple. It was also submitted that
some of the members of the Managing Committee being nominated by the
Government doesnt bring the whole Temple under Governments control. The
petitioner had attacked the resolution of the Managing Committee sanctioning a
donation of Rs.50, 000 towards the One Lakh Housing Scheme of the State
Government. It was a pet project of the ruling party. However, the Court was
requested to drop this point as the Government had not sanctioned the said proposal
of the Managing Committee. It was also affirmed that Article 25 in its clause 2(a) gave
the State the power to make laws regulating or restricting any economic, financial,
political or other secular activity associated with religious practices. Similarly, sub-
clause (b) was told to have empowered the State to make laws providing for social
reform and welfare, even if it happens to interfere with religious practices. The
respondents claimed that the fundamental right conferred by Article was subject to the
said restrictions which the Article itself had imposed. They also expressed the view
that the Constitution had contemplated the regulation of such practices, which were of
economic, commercial or political, in character, even if they were associated with
religious practices.
80

The High Court opined that the scheme which was settled by the Madras High Court
and which was modified by the District Court of South Malabar, had sufficient
safeguards, which were incorporated at the insistence of the worshippers themselves.
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The Madras Hindu Religious Endowments Act, 1926, which was in force at the time of
the commencement of the Constitution, was told to have fully recognized the rights of
the worshippers to intervene for the purpose of averting mismanagement.

It was also
observed that the legislature should consider the conferment of the power to nominate
the members of the Managing Committee to an independent statutory body, other than
the State Government, with proper guidelines. This was told to be relevant in the light
of the then recent amendments to the Preamble of the Constitution, emphasizing
secularism. The High Court declared itself being in favour of a compact committee
consisting of persons who had faith in the deity and genuine interest in the affairs of
the Guruvayoor Temple. The provisions of the 1971 Act were found to have the effect
of curbing the independence of the Managing Committee by reducing it to a body
subservient to the executive Government. The Court also opined that the powers of
removal and suppression conferred on the Government were naked and absolute in
character and even a suit was barred by section 29 of the Act. The Court concurred
with the view that the absolute and unguided discretion of the Government to sanction
donations of temple properties without even insisting on any prerequisite condition was
clearly prejudicial to the interests of the denomination. Moreover, an order of the
Government sanctioning such alienations was not amenable to any kind of challenge
before any forum and even a suit was barred under section 29 of the 1971 Act.
81

Section 14 empowered the State Government to appoint the Administrator of the
Guruvayoor Devaswom, who according to section 15, was to be a full-time officer of
the Devaswom, whose salary and allowances were to be drawn from the Temple Fund
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as fixed by the Government. The Managing Committee was deprived of the power to
appoint its own Secretary, who was anointed to be the Chief Executive Officer of the
Temple. Section 17 had mentioned that the Administrator was subject to the control of
the Committee. Section 26 (2) (a) empowered the State Government to make rules
providing for exercise of control by the Committee over the actions of the
Administrator. Utilizing the powers vested in it, the Government had formed the
Guruvayoor Devaswom Rules, 1971. Rules, 3 and 4 were very much relevant in this
regard.

Rule 3 and Rule 4 read as follows:
3. Power of the Committee over the actions of the Administrator:
It shall be competent for the Committee to call for and examine any papers connected
with any action of the Administrator and give such directions to the Administrator in
accordance with the provisions of the Act and these rules, as the Committee may
consider necessary.
4. Administrator to carry out the decision of the Committee:
The Administrator shall take steps to implement the decisions of the Committee and in
the event of failure without adequate reasons the Committee may bring the matter to
the notice of the Government and the Government shall take action as it deems
necessary against the Administrator.

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Thus the Committee was deprived of any effective control over the Administrator. The
latter was answerable only to the State Government. The right of the denomination to
administer the Temple under Article 26 of the Constitution was violated. During the
temporary absence of the Administrator, the State Government was empowered to
appoint one of its officers not below the rank of Deputy Collector or Deputy
Commissioner, for a period of not more than a month. This was by virtue of Section 16
of the Act. This very provision nullified the applicability of section14, thus making it
possible for the Government to appoint a non-Hindu to be in charge of the office of the
Administrator. The Administrator was the person authorized by section 17 of the 1971
Act to arrange for the proper performance of the rites and ceremonies in the Temple.
The Administrator wielded wide powers. Section 17 had made him responsible for the
custody of all records and properties of the Devaswom. He was empowered to grant
licenses and leases of Temple lands, buildings (for not over a year) and to call for and
accept tenders for works or supplies (valued at not more than Rs.5000). He was also
having the power to order for emergency repairs, costing not more than Rs.5000.
Section 18 further authorized the Administrator to direct the execution of any work,
which was not provided for in the budget, irrespective of the expenses involved in it.
He only had to inform the Committee about his actions. Thus, it become clear that the
conferment of extraordinary powers on the Administrator, without making him fully
answerable to the Committee, was an infringement of the rights of the denomination to
manage and administer the institution and its properties.
82

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250

Section 19(6) had provided for all new appointments carrying a salary of Rs. 200 &
above per mensum, be subjected to previous sanction of the Committee. This showed
direct involvement of the State in the normal administration of a religious institution.
The High Court regarded it to be inconsistent with the secular character of the State.
Section 20 dealt with the appointment of employees of the Guruvayoor Temple. This
task was to be performed by a body consisting of the Administrator, the Commissioner
(HR&CE), an officer authorized by the District Collector, and two persons elected by
the Managing Committee from among its members. Thus three out of five members
were full-time officers of the State Government. The Managing Committee which was
deemed to be representing the denomination was effectively sidelined in this regard.
The Act had thus entrusted the power of appointment to the Board, consisting primarily
of officers of the secular Government. The High Court found it highly detrimental to the
interests of the institution and the denomination. It was also stated that the body which
represented the denomination ought to have the right of appointing employees of the
Temple.

Section 21 provided for the preparation of the annual budget of the Guruvayoor
Devaswom by the Administrator. It had to be submitted to the State Government after
bring approved by the Managing Committee. The budget was to become operative
only after being sanctioned by the Government, which could modify any part of it.
Section 25 even conferred revisional power on the State Government in the widest
possible terms. The Government was empowered to call for and examine the records
to satisfy themselves regarding any decision taken by the Administrator or the
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Managing Committee. The State Government was also authorized to pass orders in
supersession of those actions taken by the Administrator or the Committee.


Thus, despite the administration, control and management of the Guruvayoor
Devaswom being vested in the Managing Committee consisting overwhelmingly of
nominees of the Government, a Damocles sword of threat of removal or supersession
was constantly hung above their heads. Moreover, section 29 stated that the orders
passed by the State Government were to be immune from challenge before any court
of law. This had led to the denomination becoming totally powerless to question the
actions of the Government.

Section 24 had contemplated the creation of a fund known as Sree Guruvayoor
Temple Fund. The income from Temples properties, contributions from devotees etc,
were sought to be diverted to the now fund. This was too struck down by the High
Court as unconstitutional. The Court found force in the contention that the said section
empowered the Committee to divert Devaswom funds even without the prerequisite
condition that a diversion was to be effected only in the event of there being a surplus
left after meeting all the expenses of the Devaswom. The High Court also opined that
the provision present in section 24(3) (f) of the Act, that empowered a secular authority
(State Government) to divert the Temple funds for purposes unconnected with the
Temple, was unconstitutional. Section 29 barred any legal proceedings against the
Government, the Administrator, the Commissioner, the Committee or its members, in
respect of anything done or intended to be done under the Act. As a result, the
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denomination was totally deprived of the remedy available under section 92 of the Civil
Procedure Code. The Madras Hindu Religious & Charitable Endowments Act had
provided this facility to denomination, when the Guruvayoor Devaswom was formerly
under its realm. Section 29 effectively imposed a total restraint on the fundamental
rights of the denomination.
83

Section 32 had given birth to the Renovation Executive Committee. It was to consist of
not more than thirty members. The Minister of the State of Kerala in charge of
Devaswom was to be its President. The said section did not mention any qualifications
for the membership of above Committee. The Government was empowered to unseat
any member of the said body. The Renovation Executive Committee was authorized to
receive contributions from the public, which were to be deposited in a newly created
fund know as the Sree Guruvayoor Renovation Fund. The Renovation Executive
Committee was wholly independent of the Management Committee. The very section
was held violative of Articles 25 and 26 of the Constitution. Moreover, the fact that
Minister in the Government was the President of the Renovation Executive Committee
was taken to be a serious defect. The State Government was accused of having
involved itself in the matter to renovation and reconstruction of a religious institution.
Finally, summing up, the High Court declared that section 3, 4, 11, 12, 14-18,
subsection(6) of section19, sections 20-21, section 24(1) (2), clause (f)of subsection 3,
sections 25 and 32, were unconstitutional and void.
83


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The judgement of the State High Court mutilated the Guruvayoor Devaswom Act. It
rendered the Act inoperative, in its original form. As a result, a new Ordinance was
issued to replace the impugned Act. A fresh legislation prior to the expiry of the said
Ordinance was the only alternative. This led to the introduction of the Guruvayoor
Devaswom Bill, 1978. The Government was in a hurry and attempted to avoid a
discussion concerning each clause of the new Bill. This met with opposition from many
legislators. They wanted to analyze the defects in the earlier Act as it was explicitly
revealed in the judgement of the High Court. The Chair justified the urgency shown by
the Government by citing the decision of the Business Advisory Committee. Members
were advised to express their opinion regarding the Bill, in a concise manner. The
discussion which began with the introduction of the Bill on 1 March continued on 2
March. Legislators protested on having their duration of speech, being arbitrarily
reduced. As a mark of protest the members owing allegiance to the Congress Party,
the CPI (M), the Janata Party and the NDP stayed a walkout. The then Chief Minister,
A.K. Antony reminded the House that the Ordinance was going to lapse by 19 March
and that a new Act was unavoidable. He also criticized the leaders of parties who
staged a walkout for deliberately violating an accord entered into by all of them with
the Government for completing the discussion in a time-bound manner. E.P. Gopalan
asked for referring the Bill to a Select Committee. T.M. Jacob welcomed the provision
for nine-member Managing Committee as against the seventeen-member Committee,
as prescribed by the 1971 Act. Soon, the Government successfully dealt with the
matter and got the Bill passed.
85



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END NOTES

1. R.N. Yesudas, Colonel John Munro in Travancore, p.10.
2. Ibid., p.38.
3. K.P. Sankaran Nair, Kerala Devaswom Administrative Reforms Commission
Report, p.17.
4. K. Ananthanarayana Aiyar, Report of the Devaswom Seperation Committee,
p.7.
5. K. Kuttikrishna Menon, Report of the High Level Committee for Unification of
Laws relating to Hindu Religious Institutions and Endowments, p.16.
6. R.N. Yesudas, op.cit., p.74.
7. K. Ananthanarayana Aiyar, op.cit., p.8.
8. K.P. Sankaran Nair, op.cit., p.17.
9. Ibid.
10. K. Kuttikrishna Menon, op.cit., p.17.
11. Ibid.
12. K.K. Kusuman, The Abstention Movement, pp.14-18.
13. K. Ananthanarayana Aiyar, op.cit., p.43.
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255

14. The Regulations and Proclamations of Travancore, Vol.5, pp.324-27.
15. C. Achuta Menon, The Cochin State Manual, pp.421-24.
16. K. Kuttikrishna Menon, op.cit., pp.31-33.
17. Travancore Government Gazette Extraordinary dt. 4/9/1947.
18. Supplement to the Travancore Government Gazette No.32, dt. 23/3/1948.
19. Travancore Government Gazette, No.52, dt. 10/8/1948.
20. The Acts and Proclamations of Cochin, vol.16, pp.1-10.
21. Cochin Government Gazette Extraordinary dt. 10/9/1947.
22. V.P. Menon, The Integration of the Indian States, p.21.
23. Political File No.397, Bundle 124A, dt. 19/7/1949.
24. The Travancore-Cochin Code vol.1, pp.379-422.
25. Ibid.
26. Ibid.
27. Ibid.
28. Ibid.
29. The Travancore-Cochin Code, op.cit., pp.133-141.
30. Rules and Notifications under Enactments of Cochin, Vol.5, pp.1-144.
31. 1954 KLT.723
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32. Ibid.
33. Ibid.
34. Ibid.
35. Ibid.
36. 1964 KLT.1034
37. Ibid.
38. Ibid.
39. 1990(1) KLT.349
40. The Travancore-Cochin Code, Vol.1, pp.377-422.
41. 1990(1) KLT.349
42. Ibid.
43. Ibid.
44. Ibid.
45. Ibid.
46. Ibid.
47. Ibid.
48. Ibid.
49. The Acts and Ordinances of Kerala, 1984, pp.813-18.
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50. 1990(1) KLT.874
51. Ibid.
52. Ibid.
53. Ibid.
54. Ibid.
55. Ibid.
56. D.D. Basu, Shorter Constitution of India, Vol.2, pp.1185.1546.
57. 1996(1) KLT.1
58. Ibid.
59. Ibid.
60. D.D. Basu, Shorter Constitution of India, Vol.1, pp.59-77.
61. Ibid., p.185.
62. Ibid., pp.199-200.
63. Ibid.
64. Ibid., pp.468-81.
65. V.R. Manohar, W.W. Chitaley, The A.I.R Manual, Vol.29, pp.939-50.
66. Madras Hindu Religious Endowments Act, 1926 (Act 2 of 1927)
67. The Madras Code, Vol.4, pp.325-87.
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258

68. The Acts and Ordinances of Kerala, 1971, pp.24-32.
69. 1973 KLT.106
70. Ibid.
71. Ibid.
72. Ibid.
73. Ibid.
74. Ibid.
75. Proceedings of Kerala Legislative Assembly, 6
th
session, Vol.32, dt. 14
November, 1972, pp.2522-40.
76. D.D. Basu, Shorter Constitution of India, Vol.1, pp.468-89.
77. 1979 KLT.350
78. Ibid.
79. Ibid.
80. Ibid.
81. Ibid.
82. Ibid.
83. Ibid.
84. Ibid.
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85. Proceedings of Kerala Legislative Assembly, 3
rd
session, Vol.45, dt. 1 March,
1978, pp.1716-24.























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CONCLUSION


If history is to perform properly its function as an agency of instruction, it must be
careful to record human events fairly and accurately. The most reliable sources of
information concerning all that has happened in the past are the contemporary records
themselves. The writings of those who had a hand in the events themselves and the
public documents which ascertain the veracity of such narratives are unavoidable. The
makers of history are the most competent ones to write about it. They are the ones
best qualified to interpret their own experience. These writings are the piers upon
which the historian builds his long bridge of narrative, and the historical structure can
be no stronger than its foundations. Due allowance must of course be made for human
shortcomings even in the records left to us by the most wise and open-minded of
writers. But the fact remains that contemporary materials afford the only sure
foundation to build our knowledge of what had occurred in the bygone era. Fear and
flattery are the worst enemies of historical truth and these very much vitiate a historical
narrative. If a person is influenced by these emotions, his work becomes dishonest.
Individual and the society complement each other in many ways. The individual self-
assertion is a human want, which must be weighed with others, simply because all
wants cannot be satisfied. The interests of the society are of paramount importance.
However, the claims of an individual to assert his individuality, to exercise his free will,
are not to be altogether rejected. Law acts as coercive power to compel the people to
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perform their duties and obligations. The idea of retributive and exemplary
punishments as being a deterrent on crime had held sway in the society for long.
Lately, the stress has shifted to correction, reformation and rehabilitation of the
offenders

The Constitution of India has accorded top priority to the concept of justice. The
system of administration of justice was conceived as an effective and expeditious
instrument at the service of the people. A sound justice delivery system leads to
affection and reverence in the minds of the citizens towards the government. The
attitude of the citizens also influences the performance of the judiciary. Dr. Rajendra
Prasad had rightly said, If the people who are elected are capable and men of
character and integrity, they would be able to make the best even of a defective
constitution. If they are lacking in these, the constitution cannot help the country.

Legal institutions helped man to strengthen the society and overcome the state of
anarchy which is said to have preceded the establishment of the earliest social
organizations. Individuals well versed in law assisted not only the king but also the
heads of towns and villages. The glory of a place was very much associated with the
quality of dispensation of justice existent there. Accessibility to the judicial forums was
relatively easier and formalities were negligible. There was scriptural and societal
support for awarding rigorous punishments to the convicted criminals. Petitions and
grievances were heard and decided locally. The troublesome and tiring practice of
appeals was unheard. The king heard and decided cases at the capital city. His
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officers, who otherwise worked under various designations, did not fail to attend to the
needs of administration of justice in areas under their jurisdiction. When the king and
his officers occasionally went on circuit, they functioned as a mobile court of justice.

The English East India Company made steady gains due to their diligence and
resourcefulness. As a trading concern they made territorial acquisitions at the grace of
local powers. The Company was subject to the laws of the land. The Charter Acts had
authorized the English Company to administer their possessions and establish legal
institutions for the benefit of the Company and its dependents. The application of
English laws was subject to the convenience of the Company. The power and prestige
of the East India Company grew by leaps and bounds after the grant of Diwani in
1765. The legal institutions fostered by the Indian rulers gradually faded into oblivion.
The Supreme Courts and its predecessors had to some extent coexisted with the
Indian courts. All these were obliterated by the Indian High Courts Act of 1861. The
High Courts thus created, had sweeping jurisdiction over a plethora of realms, namely
civil, criminal, admiralty, testamentary, intestate, matrimonial, original and appellate
jurisdiction. A High Court was the highest court of the land and appeals against its
judgments were entertained only by the Privy Council, which sat in England. There
was practically no hindrance or control over the powers of a High Court. The primacy
of the Calcutta High Court was indicated by the fact that its Chief Justice received a
salary which was 20% higher than those of his counterparts in Bombay and Madras.
One of the accomplished provisions of the Government of India Act, 1935, was the
establishment of the Federal Court. It was conceived to settle disputes between the
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federation and its constituent units. However, the federation itself never came into
being; the federal part of the 1935 Act remained inoperative. The power of the High
Courts and that of the Privy Council remained undiminished. The jurisdiction of the
Federal Court was of a very limited nature.

The kings of Travancore and Cochin, as in any other princely state, were the
fountainhead of the judicial establishment in their kingdom. The Prime Minister or the
dalawa, oversaw the administration of justice. Dalawa Velu Thampi himself conducted
trials and ensured that the guilty were punished mercilessly. His successor Ummini
Thampi established courts named insuaff cutcheeries. A new chapter began with the
initiatives of Colonel Munro who was virtually the de facto ruler of both Travancore and
Cochin, for quite some time. He is credited with laying the foundations of modern
judiciary in these two principalities. The Principal Court and the Appellate Huzur Court,
of Travancore were more or less an appendage of the executive; the diwan or the
Prime Minister sat along with the judges of these two successive institutions. The
Appeal Court was a definite advancement in this regard to the extent that it was free
from the executive. The inauguration of the Appeal Court coincided with the
codification of laws of Travancore at the behest of Cunden Menon. This paradigm shift
took place during the reign of Swati Thirunal Rama Varma (1829-40). This Appeal
Court later became the Sadr Court which in turn was transformed into the High Court.
Similarly, in Cochin, the Huzur Court, the Appeal Court and the Chief Court, ultimately
gave way to the High Court.

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The consequences of the World War and the mounting struggle for freedom compelled
the British to quit India. Both Travancore and Cochin joined the Dominion of India in
1947. Soon, these erstwhile princely states were integrated resulting in a new entity
called, United States of Travancore-Cochin, on 1 July, 1949. The Covenant signed by
the former rulers of these two principalities, with the concurrence of the Central
Government, formed the birth document of the new United State, which was to have a
common executive, legislature and judiciary. The Maharaja of Travancore was
designated as the Rajpramukh in order to function as the de jure head of the
Government. The seat of the High Court of the United State was decided to be at
Ernakulam, in Cochin. Trivandrum, which had housed the Travancore High Court from
its very inception in 1882, was thus deprived of a judicial landmark. Moreover, the Law
College at Trivandrum was also shifted to Ernakulam. This was the direct result of the
Integration Committee Report, better known as the Buch Committee Report.
Panampilli Govinda Menon, who was a vehement and un-relenting votary of Cochin,
was one among the three members of the said Committee. By disregarding all the
advantages present at Trivandrum, the Buch Committee preferred to respect the
sentiments of Cochinites. The employees of the High Court, lawyers, students of the
Law College and the litigants were subjected to untold hardships due to the ill-
conceived and hastily executed displacement of the High Court and the Law College.
This matter was discussed in the Legislative Assembly more than once, but it all
turned out to be a futile exercise. Proposals for shifting the High Court back to
Trivandrum or at least for having a Bench at that place, failed to materialize. Many
legislators who were supportive of these demands did not dare to express their wish
while casting their vote in the Legislative Assembly. This occurred at a time when the
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legislators were legally free to follow their conscience, by even disregarding their party
whip. The silver lining appeared in 1953, when the United State was under the
Presidents Rule. The Union Parliament amended the High Court Act and made
provision for a Bench of the State High Court at Trivandrum, the capital city. The
Bench was inaugurated when a minority government led by the P.S.P was at the helm
in the United State. The Congress Party played the role of a supporting opposition.
As a matter of fact, it was the dissensions within the State leadership of the Congress
Party which caused an avoidable delay in establishing a Bench of the High Court at
the capital city. All other political parties including the Communist Party, the P.S.P and
others were supportive of the demand for a High Court Bench. Prior to the introduction
of the States Reorganization Act, 1956, the bifurcation of a High Court was well within
the competence of the respective State Legislatures.

The birth of the linguistic Kerala State on 1 November, 1956, was generally hailed as a
victory of the linguistic policy. It was also considered as the fulfillment of a long
cherished desire of the people of this part of India. Cultural and symbolic significance
was also attached to it. The High Court of the United State of Travancore-Cochin
transformed into the Kerala High Court. The Bench at Trivandrum continued to
function as before. When the Kerala State was just over a month old, the Trivandrum
Bench was deprived of its filing powers. Later within a year, the Bench itself was
abrogated. The then judges of the Kerala High Court would never be able to escape
from the guilt of this highhandedness. Justices, K.T. Koshi and P.T. Raman Nair, had
openly displayed their hostility towards the very idea of a Bench of the High Court at
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Trivandrum, the capital city of Kerala. Outside Kerala, Benches of the respective High
Courts established at Gwalior, Indore, Nagpur and Rajkot, under section 51(2) of the
States Reorganization Act, were having filing powers. Strangely, the Chief Justice of
Kerala High Court adamantly held that this section did not permit the conferment of
filing powers to a Bench. This was nothing short of a perverted interpretation of a valid
statute. The cry for a High Court Bench at the State capital continues unabated even
to this day. Numerous initiatives in this direction turned out to be futile exercises.
There was a ripe possibility during the tenure of successive Chief Justices, Om
Prakash and Uday Pratap Singh. Both of them were favourable to this popular
aspiration. Unfortunately, the then State Government failed to utilize this golden
opportunity. The Official Language Policy has not yet reached its logical conclusion.
There would be no harm at all, in proving concessions for the linguistic minorities who
form less than 6% of the population of Kerala. The mother-tongue of the rest is
Malayalam. Its the elite presence in the bureaucracy which defeats the efforts towards
enforcing the State language. The judiciary too, is plagued by such elitism. Judicial
proceedings in many other States in India are being conducted in their own local
language. Some of those States have for decades, provided the institutional facility to
impart legal education in their local language, alongside the English medium; such
measures have to a considerable extent diminished the barrier between the ordinary
people and the judicial forums in those regions. Meanwhile, the judgements of the
Kerala High Court in the constitutional realm have enriched the legal arena.
The impact of British supremacy was more or less strangulation for the Indian rulers.
The kings, who claimed celestial descent, were compelled to take orders from an alien
power. The royal regimes of Travancore and Cochin enriched their coffers by
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plundering the assets of Hindu temples. This naked usurpation was styled as
nationalization. The ground for this extreme step was told to be the mismanagement
and maladministration of temples by the traditional trustees. At any rate this white lie
cannot be swallowed by any sane individual. First of all, the accusation that all the
temples were being misgoverned was in itself, an arbitrary generalization, something
which was not based on hard facts. Moreover, not a single trustee of a temple was
punished on this count. The kings claimed to be servants of god, but, they had no
qualms while usurping the gods own property. Perhaps, their conscience might have
been kept in suspended animation for quite some time. When they finally awoke from
their deep slumber, it was too late. The catastrophe that had fallen upon the temples of
Travancore and Cochin could never be mitigated. Matters pertaining to the Devaswom
were under the personal domain of the kings. This practice was endangered by the
emergence of popular governments. The Covenant signed by the rulers of Travancore
and Cochin and the Government of India, stipulated the creation of two statutory
entities, each to manage the temples of Travancore and Cochin. The authority
invested in the kings of Travancore and Cochin, regarding Devaswoms, was
transferred to the respective Devaswom Boards. The Travancore Devaswom Board
and the Cochin Devaswom Board owe their existence to the Covenant. The
Constitution guaranteed the payment of the Devaswom Fund from the Consolidated
Funds of India. The Hindu Religious Institutions Act, 1950, empowered the State High
Court to disqualify and remove erring members of the Devaswom Boards and also to
appoint Auditors for verifying the annual accounts of the two Boards. In addition to
these, the High Court was authorized to issue an order of surcharge against a member
of a Devaswom Board for misappropriation or willful wastage of funds. In a sense, both
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the Travancore and Cochin Devaswom Boards were held accountable and answerable
to the State High Court.

The scope and jurisdiction of the Hindu Religious Institutions Act, 1950, was limited to
the erstwhile Travancore and Cochin regions. Malabar was a part of the former
Madras State. The Guruvayoor temple in Malabar was a very famous shrine which
possessed immense wealth. The Zamorin Raja and the Karanavan of the Mallisseri
iIlom, were the joint hereditary trustees of the temple. This fact was acknowledged by
the Madras High Court. While recognizing the rights of hereditary trustees, some
regulations were imposed on them on the basis of the Madras Hindu Religious Act of
1927. The courts did not entertain the demand for the appointment of non-hereditary
trustees for the Guruvayoor temple. The scheme for administering the temple, as
settled by the Madras High Court in 1930, continued more or less unchanged even
after the formation of Kerala State. In 1965, the then Commissioner for Hindu
Religious and Charitable Endowments, filed a petition in Subordinate Judges Court at
Trichur, praying for the modification of the then existing scheme of administration of
the Guruvayoor temple. During the pendency of this petition, the Kerala Legislative
Assembly passed the Guruvayoor Devaswom Act, in 1971. This enactment was
preceded by a mysterious fire accident at the Guruvayoor temple. It was as though the
Government was waiting for a pretext to serve as a smokescreen for the
nationalization of yet another rich Hindu temple. The Legislature passed the
enactment in a hasty manner. It was neither subjected to a Select Committee, nor
circulated for eliciting public opinion. A religious issue was thus dealt with in a cavalier
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269

fashion. Sweeping financial powers were conferred on the State Government, which in
the process got one more milch cow for its stable. Some of the provisions of the
Guruvayoor Devaswom Act, 1971, were challenged in the High Court of Kerala.
However, the petition failed because the Court opined that religious matters were kept
outside the purview of the new Managing Committee. The judgement was delivered by
a Full Bench consisting of the then Chief Justice T.C. Raghavan and Justices, V.P.
Gopalan Nambiyar and G. Vishwanatha Iyer. The nominees of the State Government
were in a majority in the new Managing Committee. As a result, the Government was
virtually ruling the Guruvayoor temple by proxy. This fact, shockingly, escaped the
attention of the learned judges of the Kerala High Court. In 1972, the Act was
amended to install the Minister for Devaswoms, as the chairman of the Renovation
Committee of the Guruvayoor temple. Thus, the pretentions of the State Government
came out in the open. The aroma of power and wealth are equally irresistible. The
High Court provided the cure for the arbitrary actions of the Government. Another
fresh petition had challenged the 1971 Act on grounds of it being violative of Articles
25 and 26 of the Constitution. The Court was convinced of the veracity of the claims
made in the new petition. The direct involvement of a Government in the
administration of a religious institution was held to be inconsistent with the secular
character of a State. The Governments attempt to camouflage the usurpation of
effective authority was coupled with deprival of the rights of the denomination. The
judgment of the State High Court mutilated the Guruvayoor Devaswom Act. It
rendered the Act inoperative, in its original form. The Legislature hastily executed
suitable enactment to replace the impugned Act. Thus the intervention of the High
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Court saved the religious institutions from the arbitrary actions of the executive and the
legislature.

Supremacy of law is the essence of a sound social life. Law is just a means to achieve
justice. The judiciary is one of the pillars of the Constitution. Democracy rests on the
legislature, the executive and an independent judiciary; these three should work in
unison for the betterment of the society. Each of these entities should not overstep into
the realm of others. Denial of justice would ultimately become a curse for the nation.
The system of administration of justice should be brought closer to the people. The will
of the masses is undoubtedly superior. The organs of Government are accountable to
the citizens.



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LIST OF PUBLICATIONS OF THE CANDIDATE:
1. Thiru-Kochi: An Appraisal, Journal of Kerala Studies, Vol.33, 2006, pp.197-227.
2. The Hindu Religious Institutions Act: A Retrospect, Journal of Kerala Studies,
Vol.34, 2007, pp.190-119.















278


LIST OF TABLES:
1. Statistics taken by the Buch Committee as on 10/9/1949- p.88.
2. Chief Justices of the Kerala High Court- p.150.



















279





GLOSSARY


certiorari- a writ to keep a judicial body or tribunal within its limits
dalawa- Prime Minister
diwan peishkar- head of a revenue-division, akin to the District Collector
habeas corpus- a writ against unlawful detention
illom- a Namboodiri Brahmin household
kariakar- equivalent of a Tahsildar
mandamus- a writ to direct a public officer to do his lawful duty
M.E- Malayalam Era beginning in A.D.825
melkioma- overlordship
ooraima- trusteeship
pandaravaga- assets belonging to the king
prohibition- a writ to prevent an inferior court from exceeding its jurisdiction
provertyakar- equivalent of a village officer
quo-warranto- a writ to compel a public officer to show his authority to hold office
writ- extraordinary remedy issued by the higher courts



280


BIBLIOGRAPHY

Reports & Agreements:
The Covenant, 1949
Report of the Devaswom Seperation Committee, 1921
Buch Committee Report, 1949
Report of the High Level Committee for Unification of Laws relating to Hindu Religious
Institutions and Endowments, 1964
Kerala Devaswom Administrative Reforms Commission Report, 1984
Justice K.K. Narendran Committee Report, 1987

Travancore Government Gazette:
4/9/1947 (Extraordinary); No.32 (supplement) - 23/3/1948; No.52- 10/8/1948
Cochin Government Gazette :( Extraordinary) - 10/9/1947
Travancore-Cochin Gazette: 5/9/1950; 7/9/1950 (Extraordinary); 29/12/1953;
15/6/1954.

281
Kerala Government Gazette:
No.1&2 (Extraordinary) - 1/11/1956; No.6- 1956; Vol.1, No.2, pt.1- 13/11/1956;
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Cadjan leaf Records: (Nittu) Vol.29 dt.1011/2/23
Government Files:
G.O. No.(MS)77/Home dt.11/5/1973 ; G.O.(MS) No. 300/59/Home,dt.31/3/1959 ;
G.O. No.CJ.3.12614/4/CS dt.15/3/1955; G.O. No.CJ.3.12614/54/CS dt. 30/3/1955 ;
Political File No.397, Bundle 124A, DT.19/7/1949

Proceedings of Travancore-Cochin Legislative Assembly,
1949, Vol.1; 1950, Vol.1; 1952, Vol.5, 6, 11; 1954, Vol.11

Proceedings of Kerala Legislative Assembly,
1957, Vol.1&2; 1958, Vol.4&6; 1962, Vol.14; 1963, Vol.17; 1971, Vol.28&29;
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Acts & Proclamations of Travancore, Vol. 1, 10, 12, 13
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282
Acts & Proclamations of Cochin
The Acts & Proclamations of Cochin, Vol.16
Rules & Notifications under Enactments of Cochin, Vol.5
The Acts & Ordinances of Kerala, 1971& 1984
Kerala Law Times, 1949, 1950, 1952, 1954, 1955, 1958, 1961, 1963, 1964, 1968,
1969, 1977, 1979, 1990(1), 1996(1), 1998(2)
CODES
Travancore-Cochin Code, Vol.1
Travancore-Cochin Rules Code, Vol.2
Madras Code, Vol.4
The Acts & Ordinances of Travancore-Cochin, 1952

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