CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1991 of 1979.
Appeal by special leave from the Judgment and Order dated 9-7-1979 of the Kerala High Court in C.R.P. No. 1741 of 1979.
M. M. Abdul Khader and K. M. K. Nair for the Appellants.
K. M. Iyer and V.J. Francis for the Respondent.
The Judgment of the Court was delivered by
This litigation has secured special leave from us because it involves a profound issue of constitutional and international law and offers a challenge to the nascent champions of human rights in India whose politicised pre-occupation has forsaken the civil debtor whose personal liberty is imperilled by the judicial process itself, thanks to s. 51 (Proviso) and O. 21, r. 37, Civil Procedure Code. Here is an appeal by judgement-debtors-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 bankthe respondent, which has ripened into a decree and has not yet been discharged. Is such deprivation of liberty illegal?
From the perspective of international law the question posed is whether it is right to enforce a contractual liability by imprisoning a debtor in the teeth of Art. 11 of the International Covenant on Civil and Political Rights. The Article reads:
No one shall be imprisoned merely on the ground of
inability to fulfil a contractual obligation.
(Emphasis added)
An apercu of Art. 21 of the Constitution suggests the question whether it is fair procedure to deprive a person of his personal liberty merely because he has not discharged his contractual liability 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’s case. Article 21 reads:
21. Protection of life and personal liberty.-No
person shall be deprived of his life or personal
liberty except according to procedure established by
law.
A third, though humdrum, question is as to whether, in this case, s. 51 has been complied with in its enlightened signification. This turns on the humane meaning of the provision.
Some minimal facts may bear a brief narration sufficient to bring the two problems we have indicated, although we must candidly state that the Special Leave Petition is innocent of these two issues and the arguments at the bar have avoided virgin adventures. Even so, the points have been raised and counsel have helped with their submissions. We therefore, proceed to decide.
The facts. The judgment-debtors (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..In execution of the decree in question (O.S. 57 of 1972) a warrant for arrest and detention in the civil prison was issued to the appellants under s. 51 and o.21, r. 37 of the Civil Procedure Code on 22-6-1979. Earlier, there had been a similar warrant for arrest in execution of the same decree. Besides this process, the decree-holders had proceeded against the properties of the judgment-debtors and in consequence, all these immovable properties had been attached for the purpose of sale in discharge of the decree debts. It is averred that the execution court has also appointed a Receiver for the management of the properties under attachment. In short, the enjoyment or even the power to alienate the properties by the judgment-debtors has been forbidden by the court direction keeping them under attachment and appointing a Receiver to manage them. Nevertheless, the court has issued a warrant for arrest because, on an earlier occasion, a similar warrant had been already issued. The High Court, in a short order, has summarily dismissed the revision filed by the judgment-debtors against the order of arrest. We see no investigation having been made by the executing court regarding the current ability of the judgment-debtors to clear off the debts or their mala fide refusal, if any, to discharge the debts. The question is whether under such circumstances the personal freedom of the judgment-debtors 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, whether the provision of law is constitutional. tested on the touchstone of fair procedure under Art. 21 and in conformity with the inherent dignity of the human person in the light of Art. 11 of the International Covenant on Civil and Political Rights. A modern Shylock is shacked by law’s humane hand-cuffs.
At this stage, we may notice the two provisions. Section 51 runs thus:
51. Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree-
(a) by delivery of any property specifically
decreed;
(b) by attachment and sale or by sale without
attachment of any property;
(c) by arrest and detention in prison;
(d) by appointing a receiver; or
(e) in such other manner as the nature of the
relief granted may require.
Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied-
(a) that the judgment-debtor, with the object or
effect of obstructing or delaying the
execution of the decree-
(i) is likely to abscond or leave the local
limits of the jurisdiction of the Court,
or
(ii) has, after the institution of the suit
in which the decree was passed,
dishonestly transferred, concealed, or
removed any part of his property, or
committed any other act of bad faith in
relation to his property, or
(b) that the judgment-debtor has, or has had
sine the date of the decree, the means
to pay the amount of the decree or some
substantial part thereof and refuses or
neglects or has refused or neglected to
pay the same, or
(c) that the decree is for a sum for which
the judgment-debtor was bound in a
fiduciary capacity to account.
Explanation.-In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.
(Emphasis added)
We may here read also order 21 Rule 37:
37. (1) Notwithstanding anything in these rules,
where an application is for the execution of a decree
for the payment of money by the arrest and detention in
the civil prison of a judgment-debtor who is liable to
be arrested in pursuance of the application, the Court
shall, instead of issuing a warrant for his arrest,
issue a notice calling upon him to appear before the
Court on a day to be specified in the notice and show
cause why he should not be committed to the civil
prison:
Provided that such notice shall not be necessary
if the Court is satisfied, by affidavit, or otherwise,
that, with the object or effect of delaying the
execution of the decree, the judgment-debtor is likely
to abscond or leave the local limits of the
jurisdiction of the Court.
(2) Where appearance is not made in obedience to
the notice, the Court shall, if the decree-holder so
requires, issue a warrant for the arrest of the
judgment-debtor.
Right at the beginning, we may take up the bearing of Art. 11 on the law that is to be applied by an Indian Court when there is a specific provision in the Civil Procedure Code, authorising detention for non-payment of a decree debt. The Covenant bans imprisonment merely for not discharging a decree debt. Unless there be 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, as hostage by the court. India is now a signatory to this Covenant and Art. 51 (c) of the Constitution obligates the State to "foster respect for international law and treaty obligations in the dealings of organised peoples with one another". Even so, until the municipal law is changed to accommodate the Covenant what binds the court is the former, not the latter. A. H. Robertson in "Human Rights-in National and International Law" rightly points out that international conventional law must go through the process of transformation into the municipal law before the international treaty can become an internal law.
From the national point of view the national rules alone count.. With regard to interpretation, however, it is a principle generally recognised in national legal system that, in the event of doubt, the national rule is to be interpreted in accordance with the State’s international obligations.
The position has been spelt out correctly in a Kerala ruling on the same point. In that case, a judgment-debtor was sought to be detained under O. 21, r. 37 C.P.C. although he was seventy and had spent away on his illness the means he once had to pay off the decree. The observations there made are apposite and may bear exception:
The last argument which consumed most of the time
of the long arguments of learned counsel for the
appellant is that the International Covenants on Civil
and Political Rights are part of the law of the land
and have to be respected by the Municipal Courts.
Article 11, which I have extracted earlier, grants
immunity from imprisonment to indigent but honest
judgment-debtors.
The march of civilization has been a story of
progressive subordination of property rights to
personal freedom; and a by-product of this
subordination finds noble expression in the declaration
that "No one shall be imprisoned merely on the ground
of inability to fulfil a contractual obligation." This
revolutionary change in the regard for the human person
is spanned by the possible shock that a resuscitated
Shylock would suffer if a modern Daniel were to come to
judgment
when the former asks the pound of flesh from Antonio’s
bosom according to the tenor of the bond, by flatly
refusing the mayhem on the debtor, because the
inability of an impecunious oblige shall not imperil
his liberty or person under the new dispensation
proclaimed by the Universal Declaration of Human
Rights. Viewed in this progressive perspective we may
examine whether there is any conflict between s. 51 CPC
and Article 11 of the International Covenants quoted
above. As already indicated by me, this latter
provision only interdicts imprisonment if that is
sought solely on the ground of inability to fulfil the
obligation. Section 51 also 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, but this does not violate the mandate of Article
11. 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 so as to
coerce him into payment.......... The judgment dealt with the effect of international law and the enforceability of such law at the instance of individuals within the State, and observed:
The remedy for breaches of International Law in
general is not to be found in the law courts of the
State because International Law per se or proprio
vigore has not the force or authority of civil law,
till under its inspirational impact actual legislation
is undertaken. I agree that the Declaration of Human
Rights merely sets a common standard of achievement for
all peoples and all nations but cannot create a binding
set of rules. Member States may seek, through
appropriate agencies, to initiate action when these
basic rights are violated; but individual citizens
cannot complain about their breach in the municipal
courts even if the country concerned has adopted the
covenants and ratified the operational protocol. The
individual cannot come to Court but may complain to the
Human Rights Committee, which, in turn, will set in
motion other procedures. In short, the basic human
rights enshrined in the International Covenants above
referred to, may at best inform judicial institutions
and inspire legislative action within member-States;
but apart from such deep reverence, remedial action
at the instance of an aggrieved individual is beyond
the area of judicial authority. While considering the international impact of international covenants on municipal law, the decision concluded:
Indeed the construction I have adopted of s. 51,
CPC has the flavour of Article 11 of the Human Rights
Covenants. Counsel for the appellant insisted that law
and justice must be on speaking terms-by justice he
meant, in the present case that a debtor unable to pay
must not be detained in civil prison. But my
interpretation does put law and justice on speaking
terms. Counsel for the respondent did argue that
International Law is the vanishing point of
jurisprudence is itself vanishing in a world where
humanity is moving steadily, though slowly, towards a
world order, led by that intensely active, although yet
ineffectual body, the United Nations Organisation. Its
resolutions and covenants mirror the conscience of
mankind and insominate, within the member States,
progressive legislation; but till this last step of
actual enactment of law takes place, the citizen in a
world of sovereign States, has only inchoate rights in
the domestic Courts under these international
covenants. While dealing with the impact of the Dicean rule of law on positive law, Hood Phillips wrote-and this is all that the Covenant means now for Indian courts administering municipal law
The significance of this kind of doctrine for the
English lawyer is that it finds expression in three
ways. First, it influences legislators. The substantive
law at any given time may approximate to the "rule of
law", but this only at the will of Parliament.
Secondly, its principles provide canons of
interpretation which express the individualistic
attitude of English courts and of those courts which
have followed the English tradition. They give an
indication of how the law will be applied and
legislation interpreted. English courts lean in favour
of the liberty of the citizen, especially of his
person: they interpret strictly statutes which purport
to diminish that liberty, and presume that Parliament
does not intend to restrict private rights in the
absence of clear words to the contrary.
The positive commitment of the States Parties ignites legislative action at home but does not automatically make the Covenant an enforceable part of the corpus juris of India.
Indeed, the Central Law Commission, in its Fifty Fourth Report, did cognise the Covenant, while dealing with s. 51 C.P.C.:
The question to be considered is, whether this
mode of execution should be retained on the statute
book, particularly in view of the provision in the
International Covenant on Civil and Political Rights
prohibiting imprisonment for a mere non-performance of
contract. The Law Commission, in its unanimous report, quoted the key passages from the Kerala ruling referred to above and endorsed its ratio. ’We agree with this view’ said the Law Commission and adopting that meaning as the correct one did not recommend further change on this facet of the Section. It is important to notice that, interpretationally speaking, the Law Commission accepted the dynamics of the changed circumstances of the debtor :
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 so as to
coerce him into payment. This is reiterated by the Commission:
Imprisonment is not to be ordered merely because,
like Shylock, the creditor says:
"I crave the law, the penalty and forfeit of my
bond."
The law does recognise the principle that "Mercy
is reasonable in the time of affliction, as clouds of
rain in the time of drought."
We concur with the Law Commission in its construction of s. 51 C.P.C. It follows that quondom affluence and current indigence without intervening dishonesty or bad faith in liquidating his liability can be consistent with Art. 11 of the Covenant, because then no detention is permissible under s. 51, C.P.C.
Equally meaningful is the import of Art. 21 of the Constitution in the context of imprisonment for non-payment of debts. The high value of human dignity and the worth of the human person enshrined in Art. 21, read with Arts. 14 and 19, obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence. Maneka Gandhi’s case as developed further in Sunil Batra v. Delhi Administration, Sita Ram & Ors. v. State of U.P. and Sunil Batra v. Delhi Administration lays down the proposition. It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling. To be poor, in this land of daridra Narayana, is no crime and to ’recover’ debts by the procedure of putting one in prison is too flagrantly violative of Art. 21 unless there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness. Unreasonableness and unfairness in such a procedure is inferable from Art. 11 of the Covenant. But this is precisely the interpretation we have put on the Proviso to s. 51 C.P.C. and the lethal blow of Art. 21 cannot strike down the provision, as now interpreted.
The words which hurt are "or has had since the date of the decree, the means to pay the amount of the decree". This implies, superficially read, that if at any time after the passing of an old decree the judgment-debtor had come by some resources and had not discharged the decree, he could be detained in prison even though at that later point of time he was found to be penniless. This is not a sound position apart from being inhuman going by the standards of Art. 11 (of the Covenant) and Art. 21 (of the Constitution). The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor’s other pressing needs and straitened circumstances will play prominently. We would have, by this construction, sauced law with justice, harmonised s. 51 with the Covenant and the Constitution.
The question may squarely arise some day as to whether the Proviso to s. 51 read with O. 21, r. 37 is in excess of the Constitutional mandate in Art. 21 and bad in part. In the present case since we are remitting the matter for reconsideration, the stage has not yet arisen for us to go into the vires, that is why we are desisting from that essay.
In the present case the debtors are in distress because of the blanket distraint of their properties. Whatever might have been their means once, that finding has become obsolete in view of later happenings; Sri Krishnamurthi Iyer for the respondent fairly agreed that the law being what we have stated, it is necessary to direct the executing court to readjudicate on the present means of the debtors vis a vis the present pressures of their indebtedness, or alternatively 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 court will take note of other honest and urgent pressures on their assets, since that is the exercise expected of the court under the proviso to s. 51. An earlier adjudication will bind if relevant circumstances have not materially changed.
We set aside the judgment under appeal and direct the executing court to decide de novo the means of the judgmentdebtors to discharge the decree in the light of the interpretation we have given. P.B.R. Appeal allowed.