THE RULE OF LAW

(T.G. John, Advocate, Trichur)

“Let all things be done decently and in order” said St. Paul to the Corinthians, and from the beginning [man’s desperate struggle for order and justice has given force to the law. It gave force to the divinely inspired canons for human conduct of Moses; it gave force to the rule of the Hindu Manu, the Babylonian HammuRabi, the Roman Numa and the Greek Lycurgus; it gave force to the law as a human science in the Digest of the Roman Emperor Justinian; it gave force to the common law of England, based on principle, shaped by experience, controlled by reason. That force survived and beat down the political absolutism of the 17th and 18th centuries which held that the law was no more than the will of the sovereign. Sir Edward Coke immortalized Bracton’s words ‘‘Rex non debet esse sub homine, sed sub Deo et lege” (The king ought not to be under man, but under God and the law) by flinging them in the furious face of absolutist James I of England. Then Coke fell to his knees in terror of losing his head-yet his doctrine lives today as the well-spring of the rule of law.

According to Hindu legal theory, Law is intended to promote Dharma or Righteousness which in turn is conducive to secure -moksha’. The concept of Dharma as the basis of validity of all laws is deeply embedded in the Indian mind. Dharma is a higher law which the king himself is bound to respect and enforce. The Smritis hold that every deviation from Dharma, if brought to the notice of the king, will be punished by him. According to Manu, the king who harasses his subjects loses his family, life and kingdom. “The people should take courage and kill a cruel king who does not protect his subjects, merely * robs their wealth who extracts taxes and who gives no lead. Such a king is Kali (evil and strife) incarnate” (Anusasana Parva). Mitra and Varuna are declared to be “lovers and cherishers of the law”. They are invoked as “lords of the shining light” to protect men not only from their enemies but from the forces of nature. “The winds waft sweets; the rivers pour sweets for the men who keep the law; so may be plants be sweet for us. Sweet be the night and sweet the dawns, sweet the terrestrial atmosphere; sweet be our Father in Heaven to us”. (Rig Veda, Book I, Hymn 90).

According to Savigny, Law is the organ of folk right; it moves and grows like every other expression of the life of the people; it is formed by custom and popular feeling, through the operation of silent forces and not by the arbitrary will of a Legislature. In Marbury v. Madison, Chief Justice John Marshall unarmed except for the force of law, determined the right of judicial review over legislative decision, have breath and blood to the American precedent, as “a government of laws and not of men”. So it was also that at the testing time of that Republic, Abraham Lincoln was a man who knew only two basic books:-the Bible and Blackstone’s Commentaries on the Law. Richard Hooker has stated that law can be no less acknowledged than that her seat is in the bosom of God; her voice the harmony of the world; all things in heaven and on earth do her homage-each in a different sort and manner admiring her as the mother of their peace and joy.

The guiding principle of the American Constitution (in fact the motto of the constitution of every civilized nation) has been explained:-”If men were angels, no Government would be necessary. In framing a Government which is to be administered by men over men. The great difficulty lies in this: You must first enable the Government to control the government; and in the next place, oblige it to control itself.” The origin of the rule of law is based on certain fundamental propositions founded on certain natural rights inviolable and inviolate and which have emerged in the process of the evolution of the human being due to the development of culture and refinement. The origin of the ideas of individual liberty, freedom and private property are all milestones on the way from savagery to civilization. Prof. Lasky says: “From the Rule of Law, in a word, there is imposed on the State, the obligation to assume to each and all its citizens the means to enable them to contribute all it is in them to give to the fullest realization of social solidarity. It is because of this obligation that the State is entitled to use force for the achievements of its end. For all the matter that is essential for the purpose, there should be constitutional guarantees in the ultimate frame work of the State. In such an attitude we have all the materials for the full theory of the State. Experience is to suggest in terms of social solidarity a rule of right conduct and the aim of the State is its realization. The State clearly is bound by the rule, .that is to say, bound by law, for by every definition, it is an instrument and not an end.” For many decades powerful opinion held that the law stemmed not from fundamental rational principles but rather from the needs of the day. In the Complexities of modern life it became fashionable to hold that principles are as changeable as those needs. Oliver Wendell Holmes, the great U. S. lawyer best symbolized this view. No one had a greater love of the law than Holmes and he was the inspiration of two generations of the legal scholars who were in rebellion against a conservatism which used principle as a cover for old-fashioned rigidity and in so doing often placed chains upon change. Fundame¬ntal principle, sadly became a casualty of the rebellion. Now serious thought in the law has come full circle. After the explosion of World War II, after a decade of cold war against Communism, in the ‘awesome dawn of Space Age, the single most dramatic development in; the law of the U.S. is the return to idea of first principles.

On Boycotting Courts

(T.G. John, Advocate, Trichur)

On 23rd of July 1924 the members of the Calcutta Bar retired to their library and held a meeting within closed doors and decided to approach the Hon. Sir Lancelot Sanderson, K.C. Chief Justice of Bengal with the followingrepresentation.

My lord—

"The members of the Calcutta Bar regret to bring to your Lordship's notice an unpleasant and undesirable incident which took place in the Court of the Hon Justice Page yesterday. Mr. Sarat Chandra Bose, who was addressing the Court was not only shouted at in a most offensive way and was asked to sit down but when that order had been obeyed the learned Judge thumping the table with his clenched fists shouted at him "Leave the Court, leave the Court, leave the Court". The members of the Bar feel that to appear before the learned Judge is not consistent with their self-respect and if it were permissible they would have resolved not to appear in his Court at all'.

The term 'if it were permissible' gives us a good backlog for thought. The Calcutta Bar used the words 'if it were permissible' because the Calcutta High Court had held in Emperor v. Rajani Kanta Bose (Special Bench constituted-Sanderson C.J., Woodroffe and Mookerjee JJ) that "concerted action by a whole body of legal practitioners to boycott a judge or court in protest against an alleged wrong to one of its members or in respect of its conduct of the administration of justice generally, is not permissible because the Bar in any such case cannot constitute itself the authority to adjudge on such grievance and its duty is not to impede the administration of justice by collective abstention from Court but to make its representation through its Association to the High Court which has superintendence in such matters" (AIR. 1922 Calcutta 515).

Incidentally the question that arose in the reference was whether it was professional misconduct for a legal practitioner not to appear for a client for a particular hearing on the ground that the practitioners were staging a strike on that day by boycotting courts and the client loses the cause on account of such absence.

Sanderson C.J. observed 'No one is obliged to be alegal practitioner or to practise, but if he becomes a legal practitioner and holds himself out for and accepts employment, he becomes an officer in the judicial system in which his position, rights and duties and the authority to which he is subject are determined. A person may stand out of such a system, but if he enters he is bound by the rules and must submit to the authority to which that system subjects him.........it follows that a legal practitioner cannot join in anaction to boycott the Court or any particular judge of any grievance real or of a political or other character'.

It is to be observed that an advocate is more than an agent or servant of his client. He is also an officer of the Court and as such he owes the duty of good faith and honourable dealing to the Courts before which he practises his profession. The practice of the law is not a business open to all who wish to engage in it; it is a personal right or privilege limited to selected persons of good character and special qualifications; it is in the nature of a franchise from the state conferred only for merit and may be revoked whenever misconduct renders the practitioner holding the license unfit to be entrusted with the power and duties of his office.

Answering the above reference Sanderson J stated 'The pleader in question failed to perform his duty to appear for his client by joining a strike, one of the objects of which was to paralyse the administration of justice. Such conduct cannot and will not be permitted, whether it be on account of some alleged grievance in connection with the administration of Courts or in furtherance of some movement political or otherwise'.

Before our next boycott of Courts, let us as members of an honourable profession reexamine ourselves to find as to what is to be really done when contingencies arise.

FACTUM VALET DOCTRINE

(N. Parameswaran Nair, Advocate, Ernakulam)

“Quod fieri non debet factum valet”-what ought not to have been done if done is valid -is obviously untrue if taken in a literal sense. Like most of the maxims it is true only under certain limitations and restrictions. It may be that an act done contrary to express direction or established practice of law will not be found to invalidate the subsequent proceedings. The maxim will be found to apply where a form has been omitted which ought to have been observed but of which the omission is ex post facto immaterial. R references may be made to matrimonial cases. Though a person whose consent is essential may take steps to prevent a marriage, yet, if the marriage has taken place the absence of consent does not invalidate it. Where parties have lived together as husband and wife, the courts are loth to cancel the marriage unless the law is directly and substantially infringed. It is an axiom of law that all things are presumed to have been rightly and properly done; so there is always a presumption of lawful marriage.

There is a distinction between circumstances which are the essence of a thing required to be done by an Act of legislature and clauses merely directory. Often the omission to comply with the directory clauses is considered not serious enough to invalidate the primary Act itself. Though no rule can be laid down for determining whether particular provisions are to be considered as mere directions which may be disregarded or as imperative provisions whose disregard will be fatal to validity, still certain principles are usually indicated by authors which serve as a criteria for making the requisite distinction. Where the pre­scriptions of an act affect the performance of duty especially by a public officer such prescriptions may be directory. But where powers, rights or immunities are granted with a direction that certain regulations, formalities, or conditions shall be complied with it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred. Imperative and directive clauses really rest on the doctrine of factum valet.

But enactments regulating procedure in Courts seem usually to be imperative and not merely directory. For instance where an appeal from a decision is provided with provisions requiring the fulfillment of certain conditions such as notice of appeal, transmitting documents, etc. a strict compliance would be imperative and non-compliance would be fatal to the appeal.

It is said that this maxim of factum valet owes its origin to Roman Jurisprudence but it may be noted that this maxim is not peculiar to any one system of law but is based on general principles of Justice, equity and good conscience. This doctrine applies to acts in violation of prescribed texts referring to secondary matters whose violation is excused as a matter of Justice and convenience.

The real basis of the factum-valet doctrine, the exact principle recognized in Hindu law (mimamsa rules) is what is known as “Yatha Sakthi Nyaya” “^{ÏÅÞÖµñß ÈcÞÏ”}ie., the maxim of doing as far as possible. The religious acts enjoined by Sastras are divided into perpetual or compulsory (ie. mitya) and those prompted by desire (Kamya). First category comprises those which are compulsorily enjoined independent of any desire. Mityas (such as evening prayers, marriage and other Samskarams) can never be avoided by anyone. They are eternally enjoyed Compliance does not enhance the merit of the doer but non-compliance leads to spiritual evil. While on the other hand kamyas confer a privilege or power which one may not care for, but if Cared for there is no injustice in insisting on religious compliance. This distinction bears a close parallel to the distinction in modern law between cases where prescriptions affect the performance of duty and where they relate to a privilege or power. This concept in Hindu law may be translated as the maxim of substantial compliance. That is, non-essentials may be performed in mitya ceremonies as far as ability exists and may be omitted without detracting the validity of the principal act.

Religious and moral obligation is not co-extensive with legal obligations. A person may sell away his properties to enrich an unworthy neighbour than to his own kith and kin and the neighbour may be selfish, treacherous and unworthy. Hindu sages have given precepts for guidance of life keeping in mind the distinction between law and society and status of person. That certain transactions are condemned in books like Smrithies does not necessarily prove it to be void; what kind of condemnation is meant by the precept whether it is a moral condemnation or a legal one. The doctrine of factum valet is applied in favour of validity of marriage which has been irregularly performed or performed in disregard of texts which are merely directory. In the case of adoption, three main matters constitute its elements apart from the form. The capacity to give, the capacity to take and the capacity to be the subject of adoption seem to be matters essential to the validity of the transaction. There are of cause questions of formalities, ceremonies and other points which amount to moral and religious suggestions. To such matters which do not affect the essence of adoption this doctrine of factum valet would undoubtedly apply. Understood in the light of the above observations the factum-valet doctrine has a definite unambiguous use in deciding questions of validity based on non compliance with certain rules and injunctions.