KRISHNA IYER. J.-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 bank the
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.
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: 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 decreeholders 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
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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 malafide 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.
We may here read also order 21 Rule 37:
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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 (Xavier v
Canara Bank Ltd.(1969)). 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
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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
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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:
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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 emphasizes 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
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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 judgment debtor’s to discharge the decree in the light of the interpretation we
have given.
