SIR, Slave I Remain

(By V.M.Balakrishnan Nambisan, Advocate, Taliparamba)

We got Independence in 1947.

But, still Slave I Remain ! SIR.

Indian Evidence Act, 1872 : nearing one-and-half century : and still slave I remain, ceaselessly.

Now, let us examine some of the provisions in the Evidence Act.

1. Section 37........................any statement of it made in a recital contained in any Act of Parliament of the United Kingdom........................or notification by the Crown Representative...............purporting to be the London Gazette or the Government Gazette of any Dominion colony or possession of His Majesty is a relevant fact.

2.SECTION 57(2) :

All public Acts passed or hereafter to be passed by Parliament of the United Kingdom and all local and personal Acts directed by Parliament of the United Kingdom to be judicially noticed.

3.SECTION 57(4):

The course of proceedings of Parliament of the United Kingdom...........

4. SECTION 57(5):

The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland.

5. SECTION 57(6) :

All seals of which English Courts take judicial notice............and all Courts out of India established by the authority of the ………..Crown Representative .............. and all seals which any person is authorized to use by the ………… United Kingdom................

6.SECTION 78(1) :-

 Acts, Orders or Notification...............of the Crown Representative..................

(3) Proclamation, Orders or regulations issued by Her Majesty or by the Privy Council or by any Department of Her Majesty’s Government

by copies or extracts contained in the London Gazette or purporting to be the Queen’s Printer.

7.SECTION   81 ;-

The court shall presume the genuineness of every document purporting to be the London Gazette………… of any colony, dependency or possession of the British Crown or to be a newspaper or journal or to be a copy of Private Act of Parliament of the United Kingdom printed by the Queen’s Printer.........

8. SECTION 82:--

When any document is produced before any Court, purporting to be a document which, by the law in force for the time being in England or Ireland.............

SIR, Slave, I Remain, uninterruptedly !

Oh, Slavery, thy name is...................INDIA ?

Is India Heading Towards Corporatocracy?

(By Liju V. Stephen, Advocate, Ernakulam)

The Constitution of India envisages a parliamentary democratic form of government, wherein it is the collective will of the people that remain the basic and the essential concept of democracy. But the baffling question in the present scenario is whether the original concept of democracy still exists. The democratic concept of the present day is not the collective will of the people but emerging as the collective will of the Business Corporates. And the social evil emanating from them has far reaching consequences on the democracy of this nation.

The Democratic Process of Election for various reasons and factors has undergone tremendous changes. A situation has arisen that to contest or to secure a winning mandate in the present parliamentary form of elections huge amount of money has to be expended. In the present scenario individuals or political sympathisers are not able to contribute the requisite amount of money for a candidate or a political party for elections. Facts and figures point out that the political parties and candidates are mainly depending on business corporate for requisite election funds. It is common knowledge that it is with and for a price that the Business Corporates contribute for elections and it is further common knowledge that the gratitude shown by an elected representative or an elected government in return, are sacrificing the common wealth of the Nation.

It is worth to note that CHIEF JUSTICE M.C.CHAGLA and JUSTICE DESAI as then BOMBAY HIGH COURT JUDGES (later the JUDGES OF SUPREME COURT OF INDIA) while interpreting the scope of Amendment of Articles of Association of a Company, enabling political contributions under Section 293 of the Companies Act 1956 held in Jayantilal Ranchchchoddas Koticha v. Tata Iron and Steel Co.Ltdreported in 1957 Volume 27  Company Cases 604 (Bombay)  as follows:

“1. It is with considerable uneasiness of mind and sinking feeling in the heart that we approach this appeal and the proposal of the Tata Iron & Steel Co. Ltd. that they should be permitted by an amendment of their memorandum of association to make contributions to political parties. Democracy in this country is nascent and it is necessary that democracy should be looked after, tended and nurtured so that it should rise to its full and proper stature. Therefore, any proposal or suggestion which is likely to strangle that democracy almost in its cradle must be looked at not only with considerable hesitation but with a great deal of suspicion. Now, democracy is a political system which ensures decisions by discussion and debate, but the discussion and debate must be conducted honestly and objectively and the decisions must be arrived at on merits without being influenced or actuated by any extraneous consideration. On first impression it would appear that any attempt on the part of anyone to finance a political party is likely to contaminate the very springs of democracy. Democracy would be vitiated if results were to be arrived at not on their merits but because money played a part in the bringing about of those decisions. The form and trappings of democracy may continue, but the spirit underlying democratic institutions will disappear ……………………..                      ………………………But whatever our view may be as to the rightness or wrongness of what the Tata Iron & Steel Co, proposes to do, however strongly we may feel that the danger of the corrupting influence of money must not be allowed to increase in this country and it must be strongly curbed, we could only be guided sitting in a court of law by legal principles and not by our own views as to politics or morality”.

“18.Before parting with this case we think it is our duty to draw the attention of Parliament to the great danger inherent in in permitting companies to make contributions to the funds of political parties. It is a danger which may grow apace and which may ultimately overwhelm and even throttle democracy in this country. Therefore, it is desirable for Parliament to consider under what circumstances and under what limitations companies should be permitted to make these contributions.........................................................................But having had this case before us and our attention having been drawn to the possible evils attendant upon powers exercised by the companies, we thought it our duty to draw the attention of Parliament to the necessity or remedial measures being immediately undertaken to curb and control this evil.”    

The Judicial prophesy of Justice CHAGLA is coming true in the present day where democracy of our Nation is being throttled by the said menace. The  financial contribution made by   business corporates and other sources are used to influence the voters,  and the  elected legislators and the elected  Government would be  forced to reciprocate the   favours they had received thereby tainting democratic values of our Nation.  It is pertinent to note that JUSTICE CHAGLA had warned the Parliament  through his judgment  at a point of   time when the Companies Act 1956, the Section 293 provided that a company can contribute up to `25,000/- or 5% of the profit of the company whichever is higher.

The Indian Parliament not only had  turned deaf ear to Justice CHAGLE but has by Section 182 of the Companies Act, 2013 enhanced the limit of political contribution of Companies from `25,000/-  to 7.5% of a Company’s Annual Profit. Further by the Finance Act, 2017, Section 182 of the Companies Act, 2013 is further amended and the cap of ceiling is taken off.

An individual out of his personal affection towards a candidate or his allegiance to a political ideology may contribute money for election. But what if a legal entity such as a Public Limited Company, a creature of a Statute, with a definite economic interest makes contribution out of its profit to the political parties is it with an affection or allegiance or is it with any definite economic interest?

It is definite that from a legal point of view and economic point of view one cannot attribute any human affection for the political contributions made by Companies, and it cannot be said that it is the collective interest of shareholders because in law shareholders are different from the legal entity of a company. Hence the only interest a legal entity such as Public Limited Company contributing money for election is with a definite economic interest.  The economic interest that a Company expects from a Political Party in power would either be favourable Government policies, relaxation of norms or terms in the matter of allocation of natural resources or other common wealth of the nation or can be any other act of favouritism. Thus the price that an elected Representative or the Government has to pay in return for such cororate contributions is destroying the very fabric of our Democracy and against the interest of our Nation. Such an act contravenes contravening Article 39(b)(c) “the directive principles of state policy” under the Indian Constitution.

The political parties in India are not constitutional or statutory functionaries, but only enabling bodies under The Representation of the People Act, 1950, for collective representation for contesting for elections and for forming of governments. It is worth to note that a Company contributing money for election to a political party is even given tax concessions under Section 80GGB of the Income Tax Act, 1961. It is ludicrous to note that the said contribution is not for any charitable purposes or a nation building process but only a political contribution to favour a political party or a candidate in the so called process of election.

The elected representatives who are called upon to form the Government, forms Council of Ministers who are the repository of the wealth of the Nation. The Third Schedule of the Constitution of India prescribes the oath to be administered by the person taking charge as the Council Minster of the Union Government or the State Government which states that the Minister shall discharge his duties in accordance with the Constitution, without fear, favour, affection or ill-will”. The oath is not a mere reading of words but it is a constitutional mandate by the supreme law of the nation, which the elected representatives have to literally follow. The moot question here is to what extent the same is possible or whether it is possible at all in the changing scenario.

The Constitution Bench of Supreme Court inP.V.Narasimha Rao v. State (C.B.I.)reported in (1998) 4 SCC 626 held that a Legislative Member would also come within the definition of public servant under the Prevention of Corruption Act. But the irony is that money can be received prior to an election  but not  after being elected. But what if the money to be given subsequently is taken in advance. Since the Prevention of Corruption Act does not define the said act as corruption, the law cannot condemn them, but in reality it can also amount to corruption. In our country the corruption at bureaucratic level can be termed as the secondary level but the primary levels where the seeds of corruption are sown are at the legislative level. Now money is the vital element in politics for securing votes and I suppose none can deny the same. The social evil that emanate from this is that the money received by these sources are used to pollute the democratic process of election.

One of the solution to curb such a social evil will be to direct the State to expend for the election propaganda in a restricted manner so that candidates need not amass any lawful or unlawfull money to meet the election expense. If that be so the legislators can do their duty without any fear, favour or affection, to none other than the Nation and its citizens. It shall also be the duty of the State to publish the credentials of a candidate to the voters prior to the elections, which is definitely a fundamental right of the citizen in a democratic country to know whom to vote. The Legislature and the Judiciary have the duty to see that the Constitutional values of the democratic process of election is not eroded, or else the democracy of  this country would be throttled and such business corporate would be like the next earlier East India Company.

Judicial Reform As An Imperative*

(By Justice Jasti Chelameswar, Judge, Supreme Court of India)

Dear brother Kurian Joseph, Mr.Kaleeswaram raj, author of the book “Rethinking Judicial Reforms: Reflections on Indian Legal System”, Justice Basant, my one time colleague at the bench, Mr. Raju Ramachandran, senior advocate, ladies and gentlemen,

I am happy to be here this evening for a number of reasons.  A book release function is an event which I always enjoy whether I release or receive the book or simply participate in the programme. I know the author. The book is well written. I am not saying this to please the author.  I have gone through three or four articles of the book. Participating in this event gives me an opportunity to be in a gathering of Keralites, a state which I had the privilege of serving for 18 months. All these reasons are good enough to make me happy.

The occasion demands me to say something about the author and the book.

Mr.Kaleeswaram raj has argued a few cases before me when I was chief justice of high court of kerala and couple of times in the supreme court.  On one occasion, he was critical of one of the judgments rendered by me as chief justice of high court of kerala.  He said that I missed an opportunity of laying down something very profound.  It was this article of mr.Kaleeswaram which made me take a serious note of him, not because he was critical of my judgment but because I realised that he was a man who has the energy and enthusiasm to critically analyse the judgments. 

Lawyers are more willing to criticize judges than critically analysing the judgments.  Successful lawyers hardly have time or patience to critically analyse judgments.  Some lack determination and others the necessary resources to publish.

In his article, Mr.Kaleeswaram made a reference to Jacques Derrida. I confess that I have no in depth knowledge about Derrida’s theory of deconstruction, though I am broadly aware of the theory.  The reference to derrida really made me take note of Kaleeswaram raj’s intellectual abilities. I like people with that endowment.

I have an uncomfortable feeling that we have become a society which admires and promotes mediocrity. Brilliance is not admired. Mr.Kaleeswaram by now should have been a prominent figure in the indian legal system.  I believe that he has not got the recognition which is due to him.

I believe today that the kind of intellectual inquisitiveness which was exhibited by young lawyers of the earlier times and the excitement which they experienced when they had an opportunity to hear a brilliant argument in the court hall appears to be missing.  If I am proved wrong, I will be the most happy man. I am talking about the averages of the profession.  I know that some of the youngsters are brilliant.  The priority seems to have shifted from learning to money making. I am not at all against lawyers making money. Make it by all means. But make it honourably. That is what I was told when I was an youngster. Legal profession is something more than a mere occupation.  Arguing a case well or writing a good judgment or making a critical analysis of a judgment always gave me greater satisfaction.

I have heard disparaging remarks being made by people occupying high constitutional offices about lawyers who have an academic bent of mind. A very tragic state of affairs.

I believe the period between 1960 to 1990 did not attract the best minds to the legal profession. The best minds of those years were attracted to the study of medicine or technology. Some even opted for the civil services. However, there have been exceptions.

But post 1990s the situation is slowly changing, we find youngsters getting into the law colleges and profession, by choice. The choice is understandable.  Some of the successful lawyers in the Supreme Court make more money than successful film stars like Amitabh Bachchan or Rajinikanth. Perhaps that offers an explanation why the youngsters, are attracted towards the profession. I am not trying to denigrate the youngsters coming into the profession. I am trying to understand the various factors which attract youngsters.   Making money is one of the prime activities of all human beings. And the profession today has the potential of offering you limitless economic success. In the process, we find brilliant youngsters coming. I only hope honestly and pray that the future of this profession is going to be bright because ultimately the success of the judiciary depends upon the quality of the bar. The strength and the success of the judiciary, and the utility of the system depend upon the quality of the members of the bar. I see a hope. Some of the youngsters are simply brilliant. Today, they have greater avenues of information. Our generation and the previous generation coveted a photographic memory, I think it has simply become irrelevant in the modern world. Have a smart phone in your hand, your memory can be kept aside and you can retrieve anything what you want from that instrument. Before I acquired a smart phone, I used to remember at least 300-400 telephone numbers by heart. Today, I don’t remember my own telephone number, honestly ... Leave it there. !!

Having said so much about the profession, the lawyers and their state of affairs, I shall now come back to the book.  Mr. Raj in his book has touched various aspects of the legal system. I would like to mention only three of them for this evening. The first one is the most ‘glamorous’ topic for the last two years- the judicial appointment process. The second one is the eternal problem of indian judiciary – the law’s delays. The third topic is the better management of court system. In my view, they are all interconnected.

As far as the judicial appointment process is concerned, all of you are aware of the on-going story. There can never be a final word in this matter.  There are views and views. What was considered right in the 1950s and the 1960s became doubtful by the 1970s and the 1980s. By 1990s the process became objectionable and unconstitutional. A substitute was invented by a judicial interpretative process. However, with passage of time, doubts came to be expressed about the correctness of the substituted process. Another legislative experiment was made by way of the njac. And you know the result. The majority of the bench held it to be an unconstitutional exercise. Well, that’s the law declared and we are bound by it. But in a democracy, the debate can always go on and will go on; it will not stop. That is the beauty of a democratic system.

What is the right appointment process? Who should be the appointing authority?  Should there be a consultative process in the matter of judicial appointments and who should be the participants in such process? Who will have the last word? Who will have the primacy in the consultative process? These are all questions which possibly have multiple answers.  Irrespective of the answers to each of the above questions, the fact remains that all the exercise is meant for finding out the best available material for manning the judicial system. All of us are aware of the fact - though most of us are not willing to speak - that the selection process leaves something more to be desired.  Whether we are really picking up the best possible or available material for the bench?  It is a question which each one of us will have to answer for ourselves. I believe that the best possible material perhaps is not being picked up for elevation to the bench. So how do you solve this problem? It is an eternal experiment and the eternal vigilance of the bar is the price. Unless the bar as a body is vigilant about it, unless the bar speaks up and expresses its views about the process, things will not change.

If you want, I will tell you an example.  A few years back I was in Gauhati. I was the chief justice of the high court, and a recruitment process took place for junior civil judges’ post. We had to select about 75 candidates to the post of junior civil judges. The selection process was concluded with a written examination and a viva voce programme. After the programme was concluded, I received a delegation from a particular organisation. For obvious reasons, I am not mentioning the names. The grievance of the organisation was regarding selection of 12 or 14 candidates who were not the “children of the soil”- who hailed from the other states and got selected.  According to the delegation, that resulted in depriving “the children of the soil” the opportunity of 12 or 14 appointments.  I tried to convince the members of the delegation that such an argument is impermissible under our constitutional scheme. On the other hand, it positively prohibits it.  Of course, the members of the delegation were not very convinced about it! But then they had no answer to it. At least, in law, there is no answer to it. Then the second reason I gave them is relevant for us:- that is, if these 12 or 14 candidates were ignored (for whatever reason), necessarily the next best had to be selected.  I told them that it was not going to be my problem. I would leave that court some day or other, if not immediately. (it took me three years to leave that court). But the bar would be stuck with those less qualified people; they will have to appear before those less accomplished judges and at some point of time, later the bar would complain that they have to appear and argue before substandard judicial officers for whose appointment only the bar would be responsible.

What happened thereafter is not relevant for our purpose. For various reasons we are not able to pick up the right persons, in the sense, the best persons. I am not saying all those who are picked up are not the right people, but there could be better choices. We invent hundred and one reasons for preferring the less than desirable candidates.
I think, the sooner we get rid of this, the better.  It is better for this country and the system.

Some nine years ago, I said on the diamond jubilee event of the gauhati high court as the chief justice of that court that I didn’t want to make any high sounding speech. I simply said that I want my children and grandchildren to live in this country with dignity, therefore I need to protect this institution. If each one of us remembers this fact, everything would be alright in this country. Somebody could be arrested by the police illegally.  Somebody could be robbed on his way back home.  Unless you have some system in place to protect you from such criminal activities, you will not be able to live in peace or with dignity in the country. Therefore, we need a good, clean, competent and efficient judiciary. And each one of us who is associated with the system at this stage owes an obligation, owes a duty to make every effort to establish or maintain such a judicial system.

Let us come to the topic of delays and better management of the legal system. Delay is a huge topic. There are innumerable reasons behind it.  It may not be possible to touch all of them, not necessary also in a book release function. One of the necessary or inevitable factors which contribute to the delay is the low level efficiency of the system, of the personnel which man the system.  When I talk about the personnel, I am talking about both the bar and the bench. The efficiency levels are not up to the requisite standard.  All of you are practising here. Just visit any court (in the supreme court) on any monday or friday. In my opinion, at least 60% of the cases which are brought before the supreme court on monday and friday should not have crossed the gates of the high court.

This country lived without a supreme court for a hundred years before the establishment of the supreme court. Very few matters went to the privy council, after the federal court came into existence, for various reasons – distance and expenses etc. But the point is not that.the high courts enjoyed such a status and such a prestige. The quality of the High Courts was such that in those years, in quite a large number of cases, people never thought of questioning the decisions thereafter. Today, the situation is different. All kinds of matters are brought before the Supreme Court. I am not blaming the litigant, he may have a genuine grievance. But the question is, can the supreme court handle all these? Is it possible in any country for the highest court to handle every legal problem occurring in the country, is the question. If we don’t devise a system, if we don’t improve the efficiency of the system to assure the litigant about the quality of the adjudicatory process and the efficiency and integrity of the system, the Supreme Court is bound to be flooded with litigation which it cannot handle. Bail applications, delay condonation petitions, panchayat and municipal ward elections disputes - everything has to come up to this court. It only speaks not very well of the efficiency of the system. On Bhagwan das road – undoubtedly you find some of the best lawyers in the country here - some of these brilliant lawyers will always be able to toss up some questions of law to be examined by the supreme court. 

At least in my view - some of my brothers may not agree with me - the supreme court cannot attend to every legal error committed by the system in this country. That’s not the job of supreme court. If the supreme court starts correcting every error committed by every judicial body or a quasi-judicial body in this country, it cannot do its job, i.e., constitutional adjudication - in one of my recent judgments (Reena Suresh Alhat v. State of Maharashtra & Anr.(2017) 3 SCC 119)  I quoted felix frankfurter  in whose view, the court would be failing in its larger duty as ultimate law giver of the country, if it will be settling individual disputes between the parties. But all this is happening because, all of us believe, at least lot of us believe, that the quality of the high courts, nowadays, is not good. I have heard quite a few people saying it. The question is how do we strengthen the high courts? How do we improve the quality? As I mentioned earlier, improvement of the quality of the institution necessarily starts from the improvement of quality of the bar. Until we attempt it, the improvement in quality will not come.

The management of the court is another problem. At various levels the management problem occurs. Management problems are inherent in the model which we adopted in this country. Since the highest court of the country sits in division benches- some 13 courts are sitting today - we are bound to have management problems. What is decided in the first court is not known to the second court on the same day. On the same day, on the same issue, there is possibility of two violently differing opinions coming out. This happens because we have adopted this model of division benches. How many cases are referred to larger benches every year on the ground that there are conflicting opinions on a particular question of law. That is the proof of the failure of management system or the shortcomings of the highest court. Because it is not just the supreme court; it is the highest court. If we have two conflicting judgments on any issue, the confusion percolates down creating more and more litigation. Because the moment you have two judgments, naturally lawyers will start relying upon those judgments and the judges at the high court and the subordinate courts will be wondering what to follow.

I shall tell you an anecdote which is a facially amusing but little deeper examination gives a sad story. It was almost a quarter century back. I was appearing in an election petition for the returned candidate. Incidentally it’s a matter of excitement for me those days. The returned candidate happened to be the then chief minister of Andhra Pradesh. His election was challenged on certain grounds (of corrupt practice). It was the 1983 election.1983-84 were eventful years. The chief minister decided to dissolve the assembly and go for a fresh election in 1985. Election was held. The old election petition was still pending. The matter was adjourned on a number of occasions for various reasons.  There was a preliminary objection which I raised in that matter based on the judgment of the supreme court in M.Karunanidhi v. H.V. Hande (1983) 2 SCC 473).           

Eventually after the 1985 assembly elections took place, the learned judge to whom the election petition was assigned, entertained a doubt in view of the dissolution of the assembly, whether the election petition was still required to be tried. I conceded that the matter had to be tried for the reason that there was an allegation of corrupt practice, and if proved, the chief minister was liable for disqualification. The learned judge had his own doubts. Because the disqualification is not automatic. Prior toMrs.Gandhi’selection case (1975), the disqualification was automatic.  The moment the high court recorded the finding that the returned candidate is guilty of corrupt practice, a disqualification from contesting any election for the next six years automatically followed. Post 1975, since an amendment was made to the representation of people act, the disqualification is made discretionary. Therefore, the learned judge desired to hear the attorney general and ordered notice to the A.G.

 Mr. Parasaran was the attorney general those days. He was busy – most probably with the bhopal gas case. There were two or three adjournments.  Finally Mr. Parasaran came. He told the court: that there was no choice but to try the matter.

 After the attorney general completed his submission, the learned judge asked him for a clarification.  The learned judge asked, “Mr.Parasaran, there is a preliminary objection in this election petition based on karunanidhi’scase delivered in the month of march 1983.  Some 6 months later in A.Madan Mohan v. Kalavakunta Chandrasekhara (1984) 2 SCC 288) on the same question, a view which is apparently conflicting with the view of Karunanidhi’sjudgment was laid down. What am I supposed to do sitting in the high court, with two conflicting views from the supreme court in the same year?” The brilliant attorney general Mr. Parasaran gave a very devastating answer. He told the court, “Your lordships are very lucky. There are two judgments before your lordships today, to choose. Your lordships may choose to follow either of them.  But more often I am confronted with a situation in the Supreme Court where I rely on the earlier part of a judgment and my opponent relies on the later part of the same judgment”. Mind you, he said it. I have no reason to tell you lies today! I don’t know whether Mr. Parasaran remembers it or not. I still remember.

This problem is inherent in a system where the highest court sits in division benches. That’s what I am trying to tell you.

There are lot of such issues which are required to be examined and attended to. Mr.Kaleeswaram raj has tried to highlight some of these problems. The questions are: where do you find the solution and who should find solutions and what is the role of the members of the bar in finding the solutions to these problems. These are the questions I would like to pose to you. I think I have taken sufficiently long time from you. I congratulate Mr. Kaleeswaram raj, I congratulate the publishers and I thank each one of you for bearing with me. Thank you all.

Foot Note:-

*speech delivered by hon’ble Mr.Justice Jasti Chelameswar, judge, supreme court of India, on the occasion of launching of book ‘rethinking judicial reforms: reflections on Indian Legal System’ authored by Mr.Kaleeswaram raj, advocate, at the Indian law institute on 21st March, 2017.

Cognizance on Yogic-Yama

(By A.M Asharaf, Judicial First Class Magistrate, Adimali)

Anger is undesirous wave of feelings or thoughts. Preasure emanated from litigation makes dust-noisy situation. Prudent and wise attempt of courts is not to keep its hands tied. Expectation of people for the performance of Justice, technological advancements and explosion of laws in every aspect of modern life have contributed sky rocketing the mental imbalance of legal professionals too. In coping up with balancing or regulating of such tensed situation, will be fair to the public and parties to the lis. Intelligently handling the situation is the key to diminish cloudy sky. It is incumbent on every lawyers, officer of the court to dilute any unpleasant tensed situation with his inborn talent with the parameters of law. Judges are not interested parties to the legal struggle and not fighting for their own power, but a voyageour through the sea of difficulties to reach at the destination of truth and realities. Lawyers butterfly, who put grains and chalff in the adjudicating or revolving drum by flight-fight journey. However, they too succor the courts in the truth finding process, though, clash for protecting interest, values, actions or directions and often spark of conflict between Bar & Bench. Thus, conflicts in the mindsetting can result stress or tension among all, which may expose conflict of interest, which may mould in to an actual or perceived opposition of need and values, its result may be the loss of equilibrium of body and mind.

‘Yogic Yama’ is a mental medicine, to control waves of thoughts. In other words, tools for anger pressure management or may be understood as the avoidance of undesirable realms . Desire to win a case and urge to defeat a party in the lis, are the main root of anger in the atmosphere of courts. One commonalities is that, in all, an element of undesirous wave of feelings would be in praesanti i.e., Anger. When things have gone wrong, desire become frustrate, anger emerges, such anger would be expensive also or rather, less mental fitness and variety of stresses. In these juncture we can’t think equally, as we think, the negative and positive thoughts may result at the same time in the mind.   Here, the breathing techniques can bring a balanced deep and rest.

The irate reactions likely to result from anger. There may be factors affecting Anger, such as ego, ignorance, vengeance or exceed love. The range of anger may not be uniform in the minds of every one as the anger waves are undulates. Yogic Yama deals with the thoughts of mind or control of anger waves. The thought waves may either be intense (rajasic) or very slow (tamasic). Tamasic waves of thought are dull and gross. Rajasic waves are intense, agitated state of mind.

When we breath through left nostril, the left brain will be active. It is analytical, mathematical, scientific is rajasic. When we breath though right nostrils, right brain will be active. It is phylosophical, devotional, compassionate, and used for emotions like love, hartedness etc. and it is tamasic. A proper Anger control or emotion management is a proper balance between the right and left brains. Here the concept of ‘Yogic Yama’plays a lot. In Yogic Yama this equilibrium can be called as an union of “Prana”and “apana” i.e., pranayama. I would call it as Yogic -Yama. When it survives in our profession then call it as Judicial Yogic Yama.

The following methods may be adopted for not being affected by anger

1. Inner silence (antar mauna)

2. Leaving that place

3. Drinking immediately ice water

4. Awareness about sense and situation

So also there are ways to control anger by walking, observing and doing interested things etc. All the above are Yogic practices, such as Meditation, Karmayoga, Pranayama, Kriyas. In the recent past all the stated above have proven to be victorious in the world. Every one of us, however great or small or sinner, rich or poor, king or begger strives for happiness. Because, We desire the pleasantness.

Third Party Funding in Arbitration

(By Saurabh Bhagotra, Solicitor, Zaiwalla & Co.)

Originally arbitration was designed as a more cost effective method of dispute resolution to litigation. Unfortunately high-value arbitration proceedings have ended up being quite expensive as they are often managed like a court case. A Claimant is at a disadvantage if he or she does not have the financial resources to instruct a team of lawyers to deal properly with the matter under arbitration. This goes against the principle of a right to justice for all.

To overcome the issue of risking its own finances or to obtain additional financing to pursue a legal action, an individual can approach a third party (with no prior connection to the case or party) to agree to finance all or part of its legal costs, in expectation of receiving a substantial percentage of a monetary order should the party be successful.

Third party funding for litigation has been in existence for a while, mainly for court litigation matters, in many jurisdictions including the United States, England and Wales, Australia, Netherlands, France. In January 2017, the UK Justice Minister, Lord Keen of Elie confirmed that the UK government has no plans to introduce laws to regulate the third party funders in the same way as law firms. However, in England and Wales, the Association of Litigation Funders has published its own self-regulated code of conduct to be abided by its subscribing members.

Singapore

In contrast to the UK, on 1 March 2017 Singapore took an important step in codifying the law on third party funding in arbitration claims (third party funding for litigation is still not permitted in Singapore.) The new regulation allows a party to approach a third party funder to finance an arbitration claim seated in Singapore, including related applications to the Singaporean court seeking interim relief, and for the enforcement of an arbitration award.

The significant amendment, and difference to the law in England, is to the professional conduct rules regulating the lawyers. Singapore lawyers are now obliged to disclose to the arbitral tribunal, and to every other party, the existence of a third party funding arrangement and the identity of their client’s funder. 

There is however some concerns with regards to the disclosure obligation imposed on the Singaporean lawyers which will need further clarification. They are:

What happens to the disclosure obligation when a party is not being represented by a Singaporean registered lawyer/firm and is acting as a litigant in person, and is therefore not required to comply with the professional code of conduct?

If a party is represented by a foreign lawyer who is not registered or practising in Singapore, does that foreign lawyer have to comply with the disclosure obligations contained in the professional conduct rules regulating only Singaporean registered lawyers?  

Any additional disclosure obligation to disclose funding arrangements will likely increase the legal costs incurred by a funded party to comply with such requirement. It is also not yet clear whether these costs including additional costs to retain a funder are recoverable as the ‘costs of the Arbitration’ under these new regulations. (In Essar Oilfields v Norscot, the English High Court did allow a party to recover the costs of obtaining a third party funder).

There may be drawbacks to third party funding but it will no doubt protect smaller businesses by putting them in a position to hire a reputable law firm (domestic or foreign) without risking its limited funds.

There may be drawbacks to third party funding but it will no doubt protect smaller businesses by putting them in a position to hire a reputable law firm (domestic or foreign) without risking its limited funds.There is no doubt that the Singapore government has introduced these rules to increase Singapore’s attractiveness as the seat of arbitration, and to topple England from its preeminent position as an international arbitration hub. These recent reforms will allow parties to access diverse range of funding options to pursue arbitrations claims seated in Singapore and will also ensure that transparency is maintained between the litigating parties.

Foot Note:

If you would like further information on this topic, or require advice in relation to third party funding arrangement for your legal matter, please contact our team at info@zaiwalla.co.uk