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 CRP No 1741 of 1979
M M Abdul Khader and K M K Nair for the Appellants
K M Iyer and VJ Francis for the Respondent
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 section 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 915 a debtor in the teeth of article 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 article 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 section 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 OS No 57 of 1972 in a sum of Rs 25 lakhs the respondent bank being the decree holder
There are two other money decrees against the appellants in OS 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 OS 57 of 1972 a warrant for arrest and detention in the civil prison was issued to the appellants under section 51 and o21 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 916 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 section 51 read with O 21 r 37 CPC does warrant such a step whether the provision of law is constitutional
tested on the touchstone of fair procedure under article 21 and in conformity with the inherent dignity of the human person in the light of article 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 917 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 article 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 918 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 article 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 CPC 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 919 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 section 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 section 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 920 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 section 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
921 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 section 51 CPC 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 section 51 CPC It follows that quondom affluence and current indigence without intervening dishonesty or bad faith in liquidating his liability can be consistent with article 11 of the Covenant because then no detention is permissible under section 51 CPC Equally meaningful is the import of article 21 of the Constitution in the context of imprisonment for non payment of debts
The high 922 value of human dignity and the worth of the human person enshrined in article 21 read with articles 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 vs Delhi Administration Sita Ram  Ors
vs State of UP and Sunil Batra vs 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 article 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 article 11 of the Covenant
But this is precisely the interpretation we have put on the Proviso to section 51 CPC and the lethal blow of article 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 article 11 of the Covenant and article 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 section 51 with the Covenant and the Constitution
The question may squarely arise some day as to whether the Proviso to section 51 read with O 21 r 37 is in excess of the Constitutional 923 mandate in article 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 re adjudicate 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 section 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 debtors to discharge the decree in the light of the interpretation we have given
PBR Appeal allowed


Summary:
The appellants were the judgment debtors while the respondent bank was the decree holder
In execution of the decree a warrant for arrest and detention in civil prison was issued to the appellants under section 51 and order 21 rule 37 of the Code of Civil Procedure
On an earlier occasion there had been a similar warrant for arrest in execution of the same decree
The decree holders also proceeded against the properties of the judgment debtors and in consequence all their immovable properties had been attached for the purpose of sale in discharge of the decree debts
A receiver was appointed by the execution court to manage the properties under attachment
Even so the court had issued a warrant for the arrest of the judgment debtors because on an earlier occasion a similar warrant had already been issued without any investigation as regards the current ability of the judgment debtors to clear off the debts or their mala fide refusal if any to discharge the debts
On the question whether under such circumstances personal freedom of the judgment debtors can be held to ransom until repayment of the debt
Allowing the appeal  HELD 1
The words in section 51 which hurt are or has had since the date of the decree the means to pay the amount of the decree
 Superficially read this implies 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 Article 11 of the International Covenant on Civil and Political Rights and Article 21
A 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
Considerations of the debtor s other pressing needs and straitened circumstances will play prominently
922E G 2
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 Article 51c of the Constitution obligates the State to foster respect for 914 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 courts is the former not the latter
918A B 3
Quondom affluence and current indigence without intervening dishonesty or bad faith in liquidating his liability can be consistent with Article 11 of the Covenant because then no detention is permissible under section 51 of the Code of Civil Procedure
921G 4
The high value of human dignity and the worth of the human person enshrined in Article 21 read with Articles 14 and 19 obligates the State not to incarcerate except under law which is fair just and reasonable in its procedural essence
To cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling
To be poor is no crime and to recover debts by the procedure of putting one in prison is flagrantly violative of Article 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 Article 11 of the Covenant
But this is precisely the interpretation put on the proviso to section 51 CPC and the lethal blow of Article 21 cannot strike down the provision as interpreted
922A D