Jolly George Varghese & Anr. v. The Bank of Cochin
1980 AIR 470, 1980 SCR(2) 913
Justice V.R. Krishnaiyer and Justice R.S. Pathak
▪ Brief of Facts:
Here is an appeal by the appellants-whose personal freedom is in peril because a court warrant for arrest and detention in the civil prison is chasing them for non-payment of an amount due to a bank- the respondent, which has ripened into a decree and has not yet been discharged. The appellants suffered a decree against them in O.S. No. 57 of 1972 in a sum of Rs. 2.5 lakhs, the respondent-bank being the decree-holder. There are two other money decrees against the appellants (in O.S. 92 of 1972 and 94 of 1974), the total sum payable by them being over Rs. 7 lakhs.
On August 6th, 1979, a warrant of arrest and detention in the civil prison was issued to the appellants under S. 51 and o.21, r. 37 of Civil Procedure Code, in the execution of the decree in question. Moreover, previously a similar warrant for arrest was produced in the execution of the same decree.
Immovable properties of the judgment-debtor had been attached for sale in the discharge of the decree debts by the decree-holders.
Appeal in High court
When the case was brought up in the High Court, the appeal filed by the appellants regarding the order of arrest was dismissed without careful examination of the conditions and requirements for such arrest to take place. As per the legislation, a proper investigation must have taken place by the executing court to assess the financial standing of the appellant to clear off the debts or surface their mala fide intention behind the refusal, if any.
1. Whether it is a fair procedure to deprive a person of his liberty because he has not discharged his contractual liability?
2. Whether under the given circumstances the personal freedom of the appellant can be held in ransom until repayment of the debt, and if S. 51 read with O. 21, r. 37, C.P.C. does warrant such a step?
3. If the provision of law stands the constitutional validity on the touchstone of fair procedure under Art. 21?
Justice Krishna Iyer, said that the positive commitment of the States Parties ignites the legislative action at home but does not automatically make the alliance an executive part of the corpus juris of India.
The court’s judgment can be read in the following parts pertaining separately to each issue raised:
On the issue of International Law, no breach of International law was found. For it to be enforceable it must be established as the municipal law. The court observed that the International does not apply proprio vigore, which determined the independent authority of its own. Therefore, is found to have no remedy for the breach of the same in the state law.
Unless it is not reduced to the law of the nation it cannot be said to constitute the ‘corpus juris’ of the State. As an alternative solution, it was further stated that the member states with the help of appropriate agencies can complain in case of a breach. Whereas, an individual at most can only reach out to the human rights commission to inspire the legislation regarding the matter even if the concerned country has ratified the operational protocol. Concluding, the International Covenants quoted above, may at best inform judicial institutions and inspire legislative action within member states.
Case law referred
In dealing with the violation of Art. 21 the Court deemed the arrest and detention as wrongful by citing various cases. These cases are Sunil Batra v. Delhi Administration(1978), Sita Ram and Ors. v. State of U.P. (1979).
With regards to the compliance of S. 51of the Civil Procedure Code, the court recognized the presence of mens rea or some element of bad faith essential behind the failure to discharge the contractual liability. And mere failure to discharge contractual liability was not enough to detain a person. However, if he once had the means but now has not or if he has money now on which there are other pressing claims it is violative of the spirit of Article 11 to arrest and confine him in jail to coerce him into payment, which was recognized by the court.
The present case exemplifies the usage and circumstances under which international treaties can be practised as the rule of law. For an international treaty to be incorporated as a rule of law it first has to be established as municipal law. Only then it can have the binding force on the rule of the sovereign state.
Although Article 51 requires compliance with international law, it is not an executive article. Article 253 confers Parliament’s exclusive power in matters of international affairs. But the Constitution does not contain explicit provisions regulating the relations and status of international law in Indian courts. The law as per the covenant is recognised as a principle that should be adhered to while giving an interpretation of national law, in an event of confusion.
A progressive and measured perspective has been paved for the implementation of the international law. The article reads: No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation. Art. 21 of the Constitution poses the question in the face of the constitutional protection of life and liberty as expanded by a chain of ruling of this Court beginning with Maneka Gandhi v. Union of India. Thus, Article 11, grants immunity from imprisonment to indigent but honest appellants. Unless there is some other vice or mens rea apart from failure to foot the decree, international law frowns on holding the debtor’s person in civil prison, hostage by the court.
Section 51 declares that if the debtor has no means to pay he cannot be arrested and detained. If he has and still refuses or neglects to honour his obligation or if he commits acts of bad faith, he incurs the liability to imprisonment under s. 51 of the Code, which is in the essence of Article 11 and does not violate the mandate. But a part of the section is found to be violative of the article where it holds the person liable if he happens to incur the amount after the filing of the decree.
Sri Krishnamurthi Iyer fairly agreed that the law being what we have stated, it is necessary to direct the executing court to re-adjudicate on the present means of the debtor’s vis a vis the present pressures of their indebtedness, or whether they have had the ability to pay but have improperly evaded or postponed doing so or otherwise dishonestly committed acts of bad faith respecting their assets.
The case of Jolly Varghese provides clarity about the relations between international treaties and state laws, both of which are distinct legal systems. India follows the state of dualist theory of international law which lays down that for any international treaty, the executive cannot be guided to follow them in absence of national law.
“Human Rights-in National and International Law” specifically lays down that the international conventions first have to be transformed into municipal law for the active exercise under the rule of law of the state to take place.
However, the treaties are paradoxically considered to be self-enforceable, i.e., they apply automatically in the municipal sphere, except in cases where an amendment to the Constitution or existing law is required, or when the enactment of a new law is required.
Therefore, courts can rely on treaty principles that do not conflict with the provisions of the laws of India. Several such laws have been enacted by the Indian Parliament once India has become a signatory to related treaties and conventions. Example: The Diplomatic Relation (Vienna Conventions) Act 1972. Protection of Human Rights Act 1993, SAARC Convention (Suppression of Terrorism) Act 1993. Similar Acts are issued about territorial waters, exclusive economic zone etc.
▪ 1980 AIR 470 1980 SCR (2) 913 1980 SCC (2) 360
▪ Code of Civil Procedure, 1908
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