Sidelights on 'Contempt'

(T.G. John, Advocate, Thrissur)

"The Karachi Bar Association has learned with grant regret and concern of the undeserved insults given by the Hon'ble Chief Judge to the President of the Karachi Bar Association, Mr. Syed Ahmed Rafique, Barrister-at-Law, and to an outstanding member of this Association Mr. M. A. Alvi, Advocate and places on record that in its opinion the attitude of the Hon'ble Chief Judge has been persistently contemptuous towards the members of the Bar in general and the displaced lawyers in particular, making it impossible for them to keep up the well-known tradition of the Bar, of placing their clients' causes before a Bench adequately and fearlessly. This Association further affirms that the learned profession of law is the mainstay of the liberty and the rights of the citizens and the Courts will be undermining foundation of the State by a disregard of the rights of the lawyers and this Association warns the learned Chief Judge that if there is a further repetition of this behaviour, this Association will be forced to take measures which it sincerely wishes to avoid".

On 15th June, 1949 at a meeting of the Karachi Bar Association the-above resolution was moved by Syed Ahmed Refique, the President of the Bar Association. The Secretary Mr. Raza Mirza supported the resolution. In its issue on 17th June, 1949 the "Dawn" a Karachi Daily newspaper reproduced most of the resolution under the caption "Karachi Lawyers Resent Chief Judge's Attitude".

When these matters were brought to the notice of Sind Chief Court notices were issued to the President and the Secretary and also Altaf Hussain, the Editor and Ghulam Hussain, the printer and publisher of "Dawn" to show cause why they should not be punished for contempt of the Court. Tyabji C.J. had no hesitation to hold that the imputations and threats contained in the resolution were such as were calculated to lower the authority of the Chief Judge and the Court and further expressed that it would be impossible to argue that the matter published was merely a reasonable argument of expostulation against some particular judicial acts as being contrary to the law or the public good. The Judge also referred to 33 Bombay 252 (Government Pleader v. Jaganath Samant) where Scoot C.J. stated "Pleaders are a privileged class enrolled for the purpose of rendering assistance to the courts in the administration of justice. Their position, training and practice give them influence with the public and it is directly contrary to their duty to use that influence for the purpose of bringing the administration of justice into 'contempt'. However, in the Karachi case, in view of the unqualified apologies handed over by the two advocates to the Advocate General before the commencement of the hearing and the peculiar circumstances of the case, the Judge discharged the notice against all the parties with the further following observation: "We have reason to believe that Sayed Ahmed Refique, the President of the Bar, was the prime mover behind the resolution and that it was personal pique arising from offended vanity, which had led him astray into the irresponsible course which he followed. Under these circumstances, the humiliation involved in the recantation which he was constrained to make, in the presence of his fellow Advocates and in a crowded Court, may in itself, I think, be regarded as a fitting punishment for an offence, which appears to have been committed very largely as the result of false pride".

The principle governing contempt of courts has been neatly elucidated by Lord Russel in his Judgment in Reg v. Gray (1900 2 Q.B.36). It has been made clear by his Lordship that any act done or writing published calculated to bring a Court or judge of the court into contempt or lower his authority, is a contempt of court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the court is a contempt of court. The former class belongs to the category which Lord Hardwick L.C. characterized as "scandalizing a Court or Judge". The description of that class of contempt is to be taken subject to one and an important qualification. Judges and courts are alike open to criticism and if reasonable argument or expostulation is offered against any judicial act as contrary to law or public good, no court could or would treat that as contempt of court.

In A.I.R. 1967 Allahabad 586, it was held that the concept of contempt of court by scandalizing court, as modified in England and Austria has no application in India. The social and economic conditions of the public in India are again such that it would be very dangerous to grant them the liberty of scandalizing the court. In the Supreme Court judgment in. E.M. Sankaran Namboodiripad v. Narayanan Nambiar (1970 KLT 588), Hidayattulla C.J. observed. "The spirit underlying Article 19 (1)(a) must have due play, but the provisions of the second clause of the Article cannot be overlooked while it is intended that there should be free speech and expression, it is also intended that in the exercise of that right contempt of court shall not be committed".

As far as our country is concerned, the law regarding contempt of court had been neatly codified as early as 1926 with successive enactments upto 1971. It would have been highly salutary that in view of the onerous duties of the Advocates, the Legislature was munificent enough to envisage an enactment on the line of "Contempt of the Bar Act" also. It is upto the Bar Councils to take some interest in the matter.

On 'Schindler's List' and Genocide

(T.G. John, Advocate, Trichur)

Of recent interest in the Oscar-won film of Steven Spielberg, 'Schindler's List'. Spielberg, an American Jew has revealed in the film the remarkable story of Oskar Schindler who saved about 1200 Jews from deportation to the extermination camp of Hitler. Genocide was Hitler's extermination programme.

During the 1939-45 World War, it was estimated that the Germans killed twelve million people which the allied victors considered had made them responsible for the most appalling crime against humanity. For, these people were liquidated by the most unimaginable methods. Total technological resources were called into play, Scientists, Engineers, Doctors, indeed a whole nation, in order to achieve this. At the Nuremberg trial of the twenty two major German war-criminals, a competent observer has emphasised that there was seldom a hint of contrition, on the contrary every effort was made to justify these deeds. There seemed no consciousness of responsibility and in fact given the chance 'they would go through it all again'.

The four charges were (1) the common plan or conspiracy (2) crimes against peace (3) war crimes (4) crimes against humanity. The first two charges were generally concerned with the planning and waging of wars of aggression in violation of international treaties. Charges three and four concerned systematic murder, torture and forced labour, death marches, gas chambers, crematoria, concentration camps etc. At many of the concentration camps, the motto of the action groups was 'He who enters this camp shall leave it only by the chimney of the crematorium'. Four million people were exterminated at Auschwitz camp; one and a half million at the Majdenek concentration camp. Entire villages were shot or burned alive. Thousands of tons of fertilizers were made from the crushed bones of the burnt corpses. The crime of genocide and its whole background in the growth of Nazi Germany is related to something far deeper than politics as normally understood. Hitler grasped quite clearly that the vast majority of Germans were not ready for spiritual freedom, for individuality, for personal responsibility and choice, in fact were afraid of freedom and hated it. It is interesting that some of the chief mass-murderers, Himmler, Goebbels, Eichmann and Hess were seriously intended for priesthood, all came from strict religious families and surrendered completely to this frienzied destruction of judeo-christian values.

In Hitler's presence doubt, questions and anxieties dissolved before the simplicity of his actions, that primal simplicity of destruction and annihilation. He followed a course which brought him to the summit of power and an even more helpless dependence. In the war years, skulking in deep retreat and in the early march with Hindenberg, one of the first to run. And at the end, in the Berlin bunker not even Germany meant anything to him. Only death, destruction, the whole world in flames and the saving of his own ego. Having known men, I prefer dogs, said Hitler near the end. Of the thousand who took part in the Jewish massacres, very few have been tried, in fact the great majority of technicians, medical experts etc., who had taken part in the extermination programme have simply vanished, let alone be tried. It is said that the German firm of Tesch And Stabenow from Hamburg made a gross profit of 1,28,000 marks in 1943 for the supply of Cyclone B. Gas. "My conscience is the Fuhrer" - Goring had said General Chlendorff, in charge of the Ukranian massacres had predicted - "The future would bind my firing squads as efficient as the press-button killers of the atom bomb".

The method of the action groups was quite straight-forward. The Jews were crowded into trucks-taken to some ravine or anti-tank ditch-stripped of everything and then men, women and children were shot on the spot. Eichmann put the total number of Russian Jews murdered as two million. In Samosc mounted SS attached the Jewish quarter in typical fashion to grab deportees for the extermination centres. The spectacle which the ghetto presented after the attack literally drove the survivors mad, Dead bodies everywhere in the streets, in the houses - Babies thrown from the third and fourth floors lay crushed on the side walls! From Auschwitz concentration camp thousand of bales of hair shown from Jewish corpses were despatched to stuff German mattresses. Tons of their clothing, toys and spectacles were worn and used by the German people. Seventy two transports of the gold from their teeth went to the Reichbank and fat from their corpses made millions of bars Of soap to help cleanse the German people!

For whom are the bells tolling every New Year? About half a century has whisked away. Outside on the international scene, we hear the din of the charging youth and angry young men and women who swear by their prominent sideburns, long hair does and poets oriental and occidental- "The old order changeth yielding place to new". But what is the change - except L.S.D. visions and skirts that are going up and own - mini and maxi? The major crimes of humanity are the same and continue with added velocity. The old Neros and Hitlers at least stopped fiddling when Rome and Berlin burnt down; but modern leaders with dictatorial leanings continue fiddling even after the event'.

The Story of a Maharaja

(T.G. John, Advocate, Trichur)

Once upon a time, when British Raj reigned supreme over our motherland, the country was strewn over with a number of princely States ruled over by Maharajas. The State of Gidore was one such princely state and like all States, it was also ruled by a Maharaja-Maharaja Vikaji Rao Bolkar. Like all Maharajas, he had a Prime Minister also - Rao Bahadur Dewan Chaman Lal. The Maharaja lived in great splendour, was very rich and loved his subjects. The ruler however had a partiality for womenfolk among his subjects. Some of the fortunate women entered the palace as Court musicians and many became his concubines according to his will and pleasure.

Prime Minister Chaman Lal had a mistress, a Punjabi Muslim woman called Jahnara who was an adept in Indian classical music and in Jehnara the Prime Minister had a daughter, Mumtaz, who was very beautiful with an extremely melodious voice and accomplished in western dancing and Egyptian 'Belly dancing'. Mumtaz used to give dance recitals in the palace and the last part of some of these dances ended in her becoming completely or almost nude. The Maharaja cast his covetous eyes on this eighteen year old girl and a faithful minister as ChamanLal was,he surrendered Mumtaz to his master. Mumtaz entered the palace and accepted to the ruler's embrace under the name Kamala Bai. Mumtaz was depressed and she did not like her life in the palace as the Maharaja's concubine. The Raja was fifty-two years old and herself only eighteen.

Captain Osman, a handsome young and Sandhurst-educated man was stationed as the Commandant of the Gidore Palace Guards consisting of a platoon of 250 riflemen. He had a strong, athletic figure and one day by sheer chance, at the palace he had a fleeting glimpse of Mumtaz. He was powerfully attracted by her. Mumtaz also felt the same for Osman and thereafter clandestine meeting followed. The scandal reached the Maharaja's ears who transferred him to another post very distant from the Palace. Osman therefore resigned his post under the Maharaja to join the Indian Army under the British. Meanwhile, Osman openly declared his engagement to Mumtaz and hisdecision to marry her according to Muslim rites. The Maharaja's fury knew no bounds. A few days later while Osman and Mumtaz were having a clandestine meeting, three masked villains appeared. One lifted Mumtaz bodily and dragged her away. Osman was unarmed but he dealt a heavy blow with a large piece of stone that one of the ruffians fell down dead. But meanwhile the other ruffians dealt a blow on Osman's head with a heavy lathi which cracked his skull. Osman's wounded unconscious body was carried away and thereafter nobody heard anything about Osman! The Maharaja chuckled.

From that day onwards Mumtaz and her mother Jehnara were virtually captives in the palace. Their applications to the Commissioner of Amritsar Division and the Governor of Punjab to grant them passages to their place of Amritsar went unheeded. Mumtaz became pregnant. She was admitted to the Gidore State Hospital for delivery. A still-born child was delivered but in the throes of the childbirth Mumtaz went out of her mind. She was taken to the Government Mental Hospital at Suri where she regained her senses. Thereafter the mother and daughter decided not to return to Gidore, to escape from the Maharaja's clutches and took up residence in a posh hotel in Bombay on the Marine Drive. There they got associated with a millionaire businessman Abdul Kadir Chawla. Romance developed between Chawla and Mumtaz and one fine day Mumtaz became his mistress and her mother Jehnara Ms house-keeper. But he still followed Mumtaz.

The Maharaja, as said before, loved all his subjects and had partiality for womenfolk! Somehow, he heard about Chawla's escapades and the jilting by Mumtaz. Chawla began to receive anonymous letters. Systematic attempts were made on his life. One day in January 1925, while Chawla and Mumtaz were going together in a spacious convertible of Chawla, with a liveried chauffelur driving it and as the car was approaching the Malabar Hill, another car coming from the opposite direction suddenly way laid Chawla's car. It was dusk. There was a fusilade of gunshots from the new car. The driver and Chawla fell in the car itself wounded. Mumtaz though wounded was taken bodily into the other car. At tins critical juncture, some British military officers were returning to their barracks after a game of golf. Hearing the commotion and shrieks, they took charge of the scene. There was a regular fight and Captain Seagart held one of the ruffiains in an iron grip, even though he himself was wounded. Tire other ruffians ran away leaving Mumtaz in the car. On the police arriving at the scene, the wounded were rushed to the hospital. But Chawla and his driver succumbed to their injuries. Mumtaz and Captain Seagart recovered. From the scene of occurrence, the police recovered a pistol which showed marks of the Gidore Army. Investigation revealed that the five assailants included top officers of the Gidore State Force, Mounted Police and Air Force. They were arrested on a charge of murder.

When the matter came upon-for trial before the Bombay High Court (having original jurisdiction at that time) the array of the accused included Ananda Rao Phanse, Adjutant General of the Gidore State Forces, Captain Sham Rao of Gidore Air Force and Shall Ahamad, a Risaldar of the Mounted Police of Gidore. The Maharaja provided the best defence for the accused. The leading counsel for the defence was late Mr. Jinnah, assisted by the advocate General of Gidore. The Bombay High Court sentenced Phanse and Sham Rao to death. The appeal of the accused to the Privy Council also failed.

The great sequel was that after this episode, the Maharaja of Gidore was notified by the Viceroy of India under the Government of India Act either to abdicate or face a Commission of Inquiry. The Maharaja who loved all his subjects, especially the womenfolk among them, chose to abdicate because he shivered at the idea of facing a commission and also because he had heard that the wages of sin is death!

The Brides in the Bath

(T.G. John, Advocate, Trichur)

QUEEN ELIZABETH I of England (Elizabeth Tudor) was considered surpassingly sanitary in her time because she took a bath once a month "whether she needed it or not". Despite the innovation of the order of the Bath, a Georgian Duke later pronounced that it was sweat that kept a man clean! And it may have been adherence to this hygenic principle which resulted in there being no bath fitted to Buckingham Palace when Queen Victoria came to the throne in 1837. Aided perhaps by the teenage influence of Florence Nightingale, who expressed the conviction that "with privacy and a quart of water any woman can be clean".

The bath, however, made a triumphant come-back during Queen Victoria's reign due perhaps to John Wesley's 'heretical' teaching that "Cleanliness is next to Godliness"; major improvement in the efficiency of plumbing, and the fact that the Industrial Revolution made life in. general much grubbier.

In addition to simple hot water, people have since submitted themselves to bath, in mud, peat, bran, malt, soup, offal, blood, dung and most other non-corresive emulsions! Historical awards for originality have gone to Poppea, Nero's wife, who tubbed herself in asses' milk, Mary Queen of Scots, who soaked her long body in white wine, Cora Pearl who disported before customers in champagne, and Mrs. Porter and her daughter who washed their feet in soda water. The late Aga Khan's bath water was probably the most valuable since hotel fable holds that special catchment arrangements had to be made when he was in residence so that it could be bottled and sold to the faithful as a universal panacea! Besides their normal ablutionary function, bathtubs have been used by Romans for committing Hara-kiri, for storing coal by apocryptal cockney-dwellers, and by Mr. George Joseph Smith for doing-in brides in.

That gives me the trigger for the story and trial of George Joseph Smith, the great "Marriage-Swindler" who is one of the most powerful argument against judicial savagery in criminal history. He was born in Bow in 1872 and when he was only nine years old, he was sentenced to eight years at a stretch in a reformatory! This undoubtedly had the effect of making him a ruthless enemy of society. Anyone who can visit a Borstal institution today can easily envisage how much more horrible they must have been in the good old days and that only elicits more sympathy for Mr. George Joseph Smith than for the Judge who condemned him and went on muttering in his sleep all through his lifetime " Fiat Justitia!.

In 1896 he was sentenced to a year in Jail for receiving stolen goods- the actual thief was a servant girl who stole under his direction. He was released in 1897 and a year later be married Caroline Thornhill in Leicester. In her two years of married life with him, she had also become a criminal and when finally she was arrested she gave Smith away and again he was condemned for two years for receiving stolen goods-the maximum sentence.

During the next six years, he perfected, his method of marriage swindler. It is not known how many women he 'married' and left (the women were different to come forward as witnesses) but the technique was always the same; once the woman was ' married' and had trusted her husband with her money he went out on some pretext-to buy a paper and vanished!

In 1908 he met and married a woman for whom he seems to have felt genuine affection. Edith Pegler answered his advertisement for a house-keeper and Smith married her at Bristol under his own name. Miss pegler had no suspicion about her husband's real trade. While travelling in Clifton (Bristol), Smith met one Bessi Munday, a woman of 31 and who possessed about 2500 pounds. Smith called himself Henry Williams; the courtship was swift and they were married at Bey mouth Registry Office. Miss Munday was Smith's second wife since his marriage to Edith Pegler. Through much persuasion they made wills in one another's favour and then Smith bought a Zinc Bath for 1 pound. On 13th July 1942, Miss Munday was found drowned in this bath in their house in the High Street, Heme Bay. Smith obtained her property and rejoined Edith Pegler at Margate. He explained his affluence by saying that he had had a profitable business trip to Canada.

Smith now bought seven houses in Bristol for 2180 pounds.

His next victim was a healthy professional Nurse named Alice Burnham whom he met at South Sea. She was the daughter of a Coal Merchant. Smith managed to get her cash 100 pounds and insured her life for 500 pounds. They were married and on 12th December 1913 she was drowned in her bath in a house in Regent's Road, Blackpool. Again a verdict of death by misadventure was returned and Smith made 600 pounds by her death.

Then followed another quiet year with Edith Pegler and then he repeated his old trick of 'marry and run' marrying Alice Reavil, a modestic servant and absconding with 100 pounds and her clothes and jewellery. In December 1914 he met his last victim Elizabeth Lofty, lady's companion and clergyman's daughter. Smith gave his name to her as Lloyed. They moved to Bismarck Road - Highgate and she made a will leaving all her property to Lloyed alias Smith. The day after they moved in, the landlady heard sounds of struggle in the bathroom and hands slapping the side of the bath. Miss Lofty was found drowned in her bath and the verdict as usual was 'misadventure'.

The death was reported in the papers and a relative of Miss Burnham saw it and was struck by the similarity in the two cases and the matter was reported to Scotland Yard. The Yard immediately followed up the trial and warned Smith's Solicitor in Shepherd's Bush not to pay over the insurance money for Miss Lofty's death. In January 1915, Smith was arrested on a charge of causing a false entry to be made on a marriage certificate. As evidence against him accumulated, the charge was altered to murder.

Smith's trial began on 22nd of June 1915 and lasted for nine days. It took place before Mr. Justice Scrutton at the Old Bailey, Sir Archibald Bodkin prosecuting and Sir Edward Marshall Hall defending. The Jury were out for twenty three minutes and returned a verdict of guilty. Smith proclaimed his innocence to the end but was executed on 13th August, 1915.

Typical of Smith's calculating callousness was an incident in connection with his purchase of the bath in which Miss Munday was drowned; the shop asked 2 pounds for it. but Smith beat them down by a half a crown!

Experience in judicial work and

Appointment of High Court Judges

(Dr. K.N. Chandrasekharan Pillai, B.Sc. (Ker.), LL.M. (Del.), LL.M., S.J.D. (Michigan), Professor, CUSAT, Cochin-682022)

The Constitution of India seems to prefer, generally speaking, three categories of persons for selection as judges in the Supreme Court and High Courts. They are: advocates having ten years' experience, officers working in judicial office belonging to a judicial service and distinguished jurists. While the third category is mentioned as entitled for selection as supreme court judge, the former categories are common for both Supreme Court and High Court Judges.*

Though Explanation II under Art.124(2), Art.217(2)(a) and explanations (a) and (aa) under it refer to judicial office in connection with the qualifications for appointment to the office of judges the constitution has not provided for the definition of this term. However, the expression "judicial service" has been explained in Art.236(b) which lays down:--

"the expression" judicial service means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge".

With reference to the question whether a person belonging to other services under the state could be appointed as a district judge (to be included in judicial service) the Supreme Court in Chandra Mohan v. State of U.P. (AIR 1966 SC 1987) observed:--

"The expressions 'exclusively' and 'intended' emphasize the fact that the judicial service consists only of persons intended to fill up the posts of district judges and other civil judicial posts and that is the exclusive service of judicial officers. Having defined 'judicial service' in exclusive terms, having provided for appointments to that service and having entrusted the control of the said service to the care of the High Court, the makers of the constitution would not have conferred a blanket power on the Governor to appoint any person from any service as a district judge". (AIR 1966 SC 1987 at 1994 quoted in Srikumar Padma Prasad v. Union of India, (1992) 2 SCC 428 at 445.

This ruling has come to be emphasized recently in Srikumar Padma Prasad v. Union of India, (1992) 2 SCC 428). The court's observations are explicit:-

"We are of the view that holder of "judicial office" under Art.217(2)(a) means the person who exercises only judicial functions, determines causes interprets and rendering decisions in a judicial capacity. He must belong to the judicial service which as a class is free from executive control and is disciplined to uphold the dignity, integrity and independence of judiciary" (1992) 2 SCC 425).

The court has further explained that 'judicial service' in a state is distinct and separate from the other services under the executive. According to it the members of the judicial service pc-form exclusively judicial functions and are responsible for the administration of justice in the state (1992) 2 SCC 428 at 442).

At this juncture it is worthwhile to examine what exactly is involved in judicial function. The term has to be understood in the context of a judicial service as the apex-court rightly insists that the person should hold a judicial officer in a judicial service to be considered for appointment to the office of High Court Judge (1992) 2 SCC 445). It has hastened to add that temporary entrustment of judicial power may not qualify a person under this Article ((1992) 2 SCC 445).

What is actually involved in judicial functioning is essentially the lawyer function of resolving disputes, either by the application of law if one exists or by way of a process of reasoning spelt out in a discourse. In deciding the question the judge may have to go for certain policy choices and if he elects to make any choice he has to justify his act in the light of the existing law or principles underlying the law. And in this process he is assisted by the arguments of members of his own fraternity who share most of the values which he tries to uphold.

In carrying out this function he is like a politician. He never surrenders an existing principle completely while accepting a portion of the new principle. By a slow process of reception of the new principle in installments he prepares the society gradually for the total acceptance of the principle. The impact of the new principle on the legal system is thus cushioned and social change brought out with ease.

The person holding a judicial office has to have another characteristic which the members of his fraternity share with him. It is what is called sympathetic detachment in resolving the conflicts. This is developed by the peculiarities of the lawyer - profession. As is well known a lawyer is quite often constrained to handle cases involving issues which he as an individual may not like to support. But when he accepts the brief it becomes his duty to command to his aid what all is available in favour of the issues. He may have to support them if he has to win the case for his client. This situation helps him to have a detached view of things keeping apart his convictions, likes and dislikes. A continuous handling of such cases may thus develop in him as an affective characteristic the quality of sympathetic detachment. This is perhaps the reason why the apex court insists that temporary conferment of judicial powers may not quality a person. If he belongs to the service which calls for such roles to be played quite often he may acquire this ability essential for a judicial officer.

These qualities seem to be shared by advocates, judicial officers and jurists. Perhaps that is the reason why the constitution favours these categories only.

However, our practice does not seem to be based on such rationale. As has already been mentioned our legal system is yet to appoint a distinguished jurist in the Supreme Court. If the above qualities are the essential requirements to be a Judge, it is felt that a distinguished jurist can also be a Judge of the High Court as the jurists definitely develop the quality of sympathetic detachment in the pursuit of legal knowledge. **

Some States like Kerala seem to follow the practice of posting District Judges as Law Secretaries and Legislative Secretaries. It is not known how these posts could be described as judicial. If they are not judicial but executive, is it not against the spirit of Art.50 of the Constitution which lays down that the Stale shall take steps to separate the judiciary from the executive in the public services of the State? It is understood that these officers could be reposted district judges again on reversion from these posts, thereby treating these offices as interchangeable. In this connection it is to be noted that these secretary’s posts do not seem to be independent. Nor do they have any judicial functions.

The Supreme Court has had an opportunity to deal with the nature of this office in Srikumar Padma Prasad v. Union of India, (1992) 2 SCC 428). The court rejected the claim made therein on the plea that the secretary's post was a judicial post. The Court's observations are instructive:--

"It is not disputed that Srivastava never held any of these offices. He, however, claims that since he has been holding the office of Legal Remembrancer-cum-Secretary Law & Judicial, he is a member of the Mizoram Judicial Service. That may be so but unless he has held a judicial office in a judicial service he does not come within the purview of Art.217(2)(a) of the Constitution. The office of Legal Remembrancer-cum-Secretary Law & Judicial is a non-judicial office under the control of the executive". (1992) 2 SCC 428 at 449).

In the instant case the court indeed pointed out that even if full benefit of this service was given to Shri Srivastava he had no length of service required in that cadre. But the court is categorical that this post is not a judicial office as it is not independent of the executive. Nor is it under the control of the High Court. It also does not call for any judicial function.

The practice of elevating District Judges who hold the post of Law Secretary may also require re-examination as their stint in the executive post may deprive them of their status as District Judges. ***

The recent decision of the Supreme Court in Srikumar Padma Prasad v. Union of India has emphasized the need for more vigilance in this vital area of appointment of judges. The court has administered timely caution. It is time for the legal system to take stock of the situation and to remedy the malady.

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Foot Notes:

*    See Art.124(2), 217(2)(a) with explanations under them in the Constitution. It is pertinent to point out at this juncture that till today the Indian Legal System has not thought it proper to appoint a distinguished jurist to the Supreme Court Bench. It is, however, interesting to note that the system was recently in difficulties in the matter of appointment of a High Court Judge and the apex court had to come out with a judgment to the effect that the person appointed by the President in consultation with none other than the Chief Justice of India did not possess the required qualifications. See Srikumar Padma Prasad v. Union of India, (1992) 2 SCC 428.

**   In fact there is no specific reason why a distinguished jurist cannot be considered for the office of High Court Judge especially when he has been included in Art.124(2) to be considered for the office of Supreme Court Judge. It was on the suggestion of Shri H.V. Kamath who was supported by none other than Shri. Ananthasayaram Ayyangar that this category was included under Art.124(2). When a similar amendment was proposed for the then Art.193 (now 217) by Prof. Shibbanlal Saksena supported by Naziruddin Ahmed, it was rejected without giving any reason (See Constituent Assembly Debates, Vol.8 at pp.241, 254, 257, 661 and 672). Later though a provision was included in the Constitution (by the 42nd Amendment) it was deleted subsequently (by the 44th Amendment) apparently for no reason.

***  See Art.236(a) and (b). This practice calls for review even on another aspect of possible influence that can be brought on the Executive. The following comment included in B. Shiva Rao "Constitutional Documents, Vol. IV at 202" though made in the context of politicians may be pertinent in the case of officers of the level of Secretaries also. The comment runs thus:-

"It seems to us desirable to insert a provision in these Articles to the effect that no person should be appointed a Judge of the Supreme Court or of a High Court who has at any time accepted the post of a Minister in the Govt. of India or in a State. This is intended to prevent a person who has accepted office of a minister from exercising his influence in order to become a Judge at any time."