quote from judgment of Krishna Iyer J

Dear Dr,

                                  Here is the classic case of

Jolly George Verghase Vs The Bank of cochin UJSC 379 (1980)

Civil procedure code (5 of 1980)-Section 51 read with Order 21 Rules 37:

International Covenant on Civil and political Rights-Article 11 - Constitution of India-Article 21:

Arrest and detention in civil prison of a judgment debtor subsequent to the date of decree having no means to pay- Whether violative of article 21 of ICCPR and article 21 of the constitution of India.

HELD: the words “or had since the date of the decree the means to pay the amount of the decree” occurring in section 51 of the Civil Procedure code may imply, if superficially, that if at any time after 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 point of time he was found to be penniless. This is not a sound position apart from being inhuman by going by the standard of article 11 of the International Covenant on Civil and Political Rights and Article 21 of the Constitution of India.

            The covenants bans imprisonment merely for not discharging the decree debt. Unless there be some 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 of the Court.

            The simple default to discharge the decree, is not enough. There must be some element of bad faith beyond mere indefferenec to pay, some deliberate or ruscant disposition in the past or alternatively, current means to pay the decree or substantial part of it. The provision emphasize the needs to establish not mere omission to pay but an attitude of refusal as demand verging on dishonest disowning of the obligation under the decree. Here the considerations of the debtor’s other pressing needs and strained circumstances will play prominently.

            It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet contractual liability is appalling.To be poor, in this land of poverty is no crime and recover debt by the procedure by putting, one in prison is too flagarantly violative of article 21 of the constitution unless there is some proof of the minimal fairness of his willful failure to pay inspite 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.Unreasonaleness and unfairness in such procedure is inferasble from article 21, constitution cannot strike down the provision of section 51, Civil Procedure Code.

            Constitution of India- Article 51 (c)

Whether the international Covenant on Civil and Political Rights is binding on municipal Court:

HELD: 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 set a common standard of achievement for all peoples and all nations but cannot create a binding set of rules.Until the municipal law is changed to accommodate the covenant, is not binding on municipal court.

great ,grateful, thanks

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