Christian Law of Succession

(By Sebastian Champappilly, M.A., LL.M., Advocate, Ernakulam)

Intestate succession among Travancore-Cochin Christians has been a subject of public debate ever since the decision of the Hon'ble Supreme Court in Mary Roy's case [1]. It appears that the decision has created considerable confusion not only among the members of the Christian community in Kerala-, but also among the lawyers. Till the aforesaid decision of the Hon'ble Supreme Court, the Travancore Christians were governed by the provisions of the Travancore Christian Succession Act, 1916 and (he Cochin Christians were governed by the provisions of the Cochin Christian Succession Act, 1921. Christians in other parts of India were governed by the provisions of the Indian Succession Act, 1925 with such exceptions as provided in the Act. It was in this settled state of affairs that the Hon'ble Supreme Court rendered the decision in Mary Roy.

Mary Roy and its Reasoning

The question that arose, before the Hon'ble Supreme Court, for consideration was whether the provisions of the Travancore Christian Succession Act were ultra vires the Constitution. Another related question that was raised before the court was as to the impact of the Part B States (Laws) Act, 1951, on the Travancore Act. The court decided the case holding that the Part B States (Laws) Act excluded the operation of the Travancore Act and thereby obviated the need for examining the first question on the constitutionality of the Act. It took the view that by virtue of Section 6 [2] of the Part B States (Laws) Act, 1951, and the inclusion of the Indian Succession Act, 1925 in the schedule to that Act, the Travancore Christian Succession Act stood repealed from the appointed day under the Part B States (Laws) Act, i.e., 1-4-1951. Hence, it reasoned, the law applicable to intestate succession among Christians of Travancore area of the State of Kerala is the Indian Succession Act, 1925, from 1-4-1951. Following this decision, the High Court of Kerala ruled that the Cochin Christian Succession Act, 1921 also stood repealed by Part B States (Laws) Act, 1951 [3]. Though these courts did not expressly give retrospective effect to the judgments, the mere declaration that the Travancore and Cochin Acts stood repealed on 1-4-1951, gave these judgments retrospective effect overturning the then existing law and practice among the Travancore-Cochin Christians.

Problems Arising out of Retrospective Effect

The Christians of Travancore and Cochin conducted their property transactions in the belief that they were governed by the provisions of the Acts of 1916 and 1921, respectively. The Travancore-Cochin High Court in 1951 [4] and the Madras High Court in 1978 [5] affirmed and reaffirmed that the Travancore Act still remained in force, inspite of the Part B States (Laws) Act, 1951. When the Hon'ble Supreme Court declared in 1986 that, that was not the law, the property transactions of Christians in both testamentary and intestate happen to be illegal.

These decisions have had another impact. Under the Travancore-Cochin Acts probating of wills was not mandatorily applicable to the Travancore-Cochin Christians. But under S.213 of the Indian Succession Act it was mandatory for the Christians to get their wills probated. Therefore, as a consequence of the decision, family settlement deeds based on wills that were not probated have suddenly become invalid in view of the application of S.213 with effect from 1-4-1951 [6]. In the case of intestate succession partitions or family settlements made in accordance with the pro visions of the Travancore Act also became defective. Such documents, now, cannot be used as securities for financial transactions, and further, daughters (sisters) who were excluded from the share, (under the provisions of the Travancore or Cochin Acts) can now re-open the matter both for genuine and mala fide reasons. In short, many a title deed in the hands of Christians remain defective and this would adversely affect the stability and progress of the community, as all the settled property relations may have to be unsettled and resettled.

An argument has been advanced that there are not many cases arising in the matter of Christian intestate succession consequent on the decision of the Supreme Court, and that the law of limitation would put an end to all surviving claims and the matter is only to be ignored, as now the Christian community is not opposed to giving equal share to women in the matter of intestate succession. This complacent conclusion is not sustainable as evidenced by case law. The High Court of Kerala recently upheld the claim of a women for share in the property of her father, though she was married in the year 1950 and intestacy occurred in the year 1944. The matter came up for consideration before the High Court in 1988. [7] In yet another case, the High Court upheld the right of the woman for streedhanom alone [8]. There seems to be no consistancy in the approach of the court in these matters. The problems created by Mary Roy are thus still alive. There are instances of misuse too. In a recent case, a brother who excluded his sister from the sharing of property, pledged the document relating to his property as security for a loan. On default of payment, the bank instituted a suit and the property was sold in execution. When delivery of the property was to be effected, the sister, apparently at the instance of her brother, filed a suit claiming her rights in the property and moved for stay of delivery of the property [9]. In short, there are difficulties arising out of the decision in Mary Roy, as limitation cannot be effectively established in many cases.

Historical Background

In this context, in order to have a better appreciation, it may be appropriate to look into the historical background of the development of the law of succession among Christians of the former princely states of Travancore and Cochin. The Christians [10] of Travancore and Cochin followed the Hindu Law in matters of succession. Christian women, whether married or not, were excluded from inheritance, even if they had no brothers. Thus, the parent's property passed over to males belonging to a very remote degree of consanguinity and even in the transverse line. This is evident from the decrees of the Synod of Diamper, 1599 [11]. The Synod by its 20th decree, declared that this mode of succession to be contrary to natural equity and wholly unlawful and decreed that the property must be equally distributed among sons and daughters, [12] Disobedience to this decree was declared to be a sin and whoever refused to observe this law or to make restitution was to be excommunicated beyond all hope of absolution, until he obeyed the decree and made restitution [13]. The mode of succession was one of the chief customs which the Synod tried to change. The letters written by Francis Roz, the first Latin Bishop of the native Christians, to his religious superior in Aquaviva, recount that it was not possible to get the native Christians to observe the decrees of the Synod which related to ancestral customs. Thus inspite of a threat of the highest form of religious punishment, the native Christians of Travancore and Cochin could not be compelled to change their customs relating to succession to property and the community continued to follow their own customs in matters of succession.

While so, in 1906, the Travancore High Court had an occasion to consider the customary law of succession among Christians [14]. In this case the widow of a Syrian Christian, who died intestate without issue, claimed to be the sole heir to his estate. The mother also claimed to be the sole heir and the court found that there was no specific rule to resolve the dispute. Therefore, the court decided the matter by applying the provisions of the Indian Succession Act, 1865. In the very same year in another case [15] a Full Bench of the Travancore High Court held that in matters of succession, the principles of the Indian Succession Act would apply. This was followed in another decision [16] in the year 1907 also. By now, the court have had occasions to consider the questions of succession relating to almost all Christian denominations and the final position of law as established by the precedent was that though there was no enacted legislation, as a matter of applying the principles of justice, equity and good conscience, the principles embodied in the Indian Succession Act, 1865 would apply to the Christians in matters of Succession.

Codification of the Law

It was in these circumstances that the law was codified in Travancore by the Travancore Christian Succession Act, 1916 and in Cochin, by the Cochin Christian Succession Act, 1921. Obviously the legislature had in mind the earlier decisions rendered by the court and codified the law in accordance with the customs prevailing in the Christian communities. This is evident from the preamble to the Act, which categorically declared that it was being enacted to consolidate and amend the rules of law applicable to intestate succession among Indian Christians [17]. These enactments could thus be deemed to have been made after considering the customary law as well as the decisions rendered by the Courts, applying Indian Succession Act, 1865 wherever relevant to the Christians. Therefore it could be concluded that by the time these provincial enactments consolidating the then existing law and practice came into force, the Indian Succession Act, 1865 was hot to be applicable to the Travancore-Cochin Christians.

The Advent of the Indian Succession Act

In this context it is worth-while to examine the circumstances under which the Indian Succession Act, 1865 came to be enacted. When the British settled down to govern India, they found that there was no ascertainable law in the matter of succession for communities other than Hindus and Muslims. This vacuum came to be noticed as a result of the decision of the Privy Council to the effect that a Hindu renouncing his religion and becoming a convert to Christian Succession [18]. It was to fill this gap that the Indian Succession Act of 1865 was enacted. It provided inter alia for intestate succession of the Christians of India (and also of Parsis). It may be pertinent to note at this juncture that the Travancore Christian Succession Act 1916 and Cochin Christian Succession Act 1921 were enacted when the Indian Succession Act, 1865 was in operation. In other words these acts consolidated the position in the context of the 1865 Act as applied to Christians in Travancore and Cochin.

The Indian Succession Act, 1865 was repealed and the Indian Succession Act, 1925 was enacted, consolidating various other enactments in the matter of testate and testamentary succession. This Act was not to be applied to the Christians in the whole of India. It contained many a provision signifying its restrictive and cautious application. This Act does not contain an "extend clause". Further, S.3 empowered the State Government to exempt any race, sect or tribe or any part of such race, sect or tribe from the operation of the Act, by way of a notification. Again, by Section 29(2), existing law (law for the time being in force) was saved. So far as its application to the Christians in Travancore and Cochin, it may be noted that these were princely States over which the British had no sovereignty or law-making authority. Thus neither did the Act apply-directly to the Christians in these princely States nor was it specifically made applicable to them. In fact by virtue of S.29(2) it could be argued that the Indian Succession Act did not apply to the Christians in the Travancore and Cochin areas. The above conclusion was reinforced by the decision of the Travancore-Cochin High Court and the Madras High Court as discussed below.

Independence & Thereafter

When India became independent in 1947, the Travancore and Cochin States continued to be princely States. Those States became Part of the Indian Union when the respective Maharajas signed the Instruments of Accession in 1949, making them Part B State of Travancore-Cochin. Thereafter, Parliament enacted the Part B States (Laws) Act, 1951. Section 3 of the Act provided for extending the enactments mentioned in the Schedule thereto, to the Part B States. And Section 6, provided that any law in force in these States corresponding to any of the Acts extended to Part B States, would stand repealed. It was in this context, the question whether the Travancore Christian Succession Act stood repealed was raised. The Travancore-Cochin High Court where it was raised for the first time [19] held in 1956 that the Travancore Christian Succession Act was not repealed and it was the law applicable to Christians. Again the same question came up for decision in the Madras High Court in 1974 [20] wherein it was held that the Travancore Christian Succession Act stood repealed. But a Division Bench of the Madras High Court held otherwise [21] in 1977. Thus, it could be said that the position of law settled by the decisions of the Full Bench of the Travancore-Cochin High Court and the Division Bench of the Madras High Court was also to the effect that the Indian Succession Act, 1925 was not applicable to the Travancore Cochin Christians. The decision of the Hon'ble Supreme Court in Mary Roy must be viewed in the light of the above position.

Mary Roy & the Supreme Court

It may be appropriate here to examine the constitutional, procedural and jurisdictional issues involved in Mary Roy's case. Tire proceedings before the Hon'ble Supreme Court were instituted under Art.32 of the Constitution of India. Article 32 is a fundamental right to enforce a fundamental right or to avert a threat to a fundamental right. That being so, Art.32 cannot be pressed into service for determining the validity of an enactment, unless that enactment infringes the fundamental rights. This has been the consistent view of the Supreme Court [22]The Hon'ble Supreme Court reiterated its view in Khyerbani Tea Company's Case, [23] thus:

"In dealing with petition under Article 32, this court naturally confine the petitioners to the provisions of the impugned Act by which their fundamental rights are either affected or threatened".

A petition under Art.32 is thus maintainable only if it causes restriction on the enjoyment of fundamental rights. If a right is not a fundamental right conferred by part Ill of the Constitution, it is outside the purview of Article 32 for enforcement. In such cases, the petitioner may not invoke Art.32. It is open to the petitioner to approach the High Court under Art.226 of the Constitution.

Therefore, the mere declaratory judgment of the Supreme Court in Mary Roy, was passed ignoring the procedural and jurisdictional limitations of the court. This was contrary to the practice of the court. The only course open to the court was to examine the validity of the Travancore Act on the touch stone of the Constitution, and the impact of its judgments would then naturally have been prospective.

Constitution & Continuity of Laws

That apart, the Supreme Court had not looked into the Constitutional provisions relating to existing law and its continued applicability after its commencement. Art.372(1) declares that:

"all the law in force in the territory of India immediately before the commencement of the constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority".

And the President of India was given the power to make such adaptation or modification of the Law in force so as to bring them in conformity with the provisions of the Constitution. This could be done before the first day of November 1957 as is provided under Art.372-A of the Constitution. Further Art.13(1) provides that all laws in force in the territory of India immediately before the commencement of the constitution, in so far as they are inconsistant with the provisions of Part III of the Constitution, shall to the extent of such inconsistancy, be void. Obviously these provisions relating to the law in force have been enacted to make the law in tune with the principles of International law and Public Law. For example, according to the principles of State Succession under International law, though the people change their allegiance, their relation to their ancient sovereign is dissolved, their relation to each other, and their rights of property remain undisturbed [24].

Also it is a general rule of public law, that whenever political jurisdiction and legislative power over any territory are transferred from one nation or sovereign to another, the municipal laws of the country continue in force until abrogated or changed by the new sovereign. [25] When such is the position in international law and the Constitution of India has contemplated the situation and provided for meeting such a contingency by Arts.372 and 13, the failure of the Hon'ble Supreme Court in not adverting to the constitutional provisions in deciding the case on hand was unfortunate.

The Interpretative Dilemma

Laws with regard to touchy issues like succession etc. should reflect customs and practices for its acceptance and sustenance. In this sense the Travancore Act was a well balanced legislation inasmuch as its Ss.24, 28 and 29 were explicitly made inapplicable to certain sections of Christians living in certain Taluks. Indeed, the Indian Succession Act, 1925 also contains a safety valve in its sections 3 and 29(2) to make it relevant in the society. It is obvious that it was with a view to make it workable in the society that these provisions were included.

Now by the judgment in Mary Roy, the Indian Succession Act, 1925 in toto is made applicable to the Travancore area on the ground that it is expressly mentioned in the Schedule to Part B States (Laws) Act, 1951. While doing so, the court repudiated the strong argument that if the Act is wholly applicable its S.29(2) saving the existing laws (including the Travancore Act) should also be applicable [26]. Going by the precedents created by the Supreme Court itself, [27] S.29(2) should have been held applicable, thereby saving the Travancore Christian Succession Act, 1916. It could therefore be argued that, what the Supreme Court did was not interpretation in the true sense of the word, but a policy choice, which is the realm of the Legislature or the Executive. In short the reasoning and the decision of the court cannot be sustained on any ground. Had the court examined the issue in the constitutional context, retrospective operation of the decision would have been avoided. On the other hand, if S.29(2) was given effect to Travancore Act would have been saved. In both cases the present difficulties would have been avoided.

The Response of the Community

The decision has had, however, a positive response from the community. Christians in Kerala, by and large, welcomed the decision of the Supreme court with certain reservations. Now the majority of Christians do not seem to be opposed to giving equal share to women in the matter of intestate succession [28]. The consensus of opinion emerging at various seminars and discussions on the subject is that it is a welcome decision, if prospective effect is given to it. [29]

Some Suggestions

As the problems are still alive, it has become necessary to look for some solutions, in the constitutional context. As "intestacy and succession" is a subject included in the Concurrent List (Entry 5 of List III of the 7th Schedule) of the Constitution, the State Legislature is competent under Article 246, to exercise its legislative power and it can perhaps enact a validating Act, whereby the transactions arising out of testamentary and intestate succession in accordance with the provisions of the Travancore and Cochin Acts, made by Christians, from 1st April 1951 to 24-2-1986, could be validated. This view finds support in the decision of the Supreme Court in Hari Singh, [30] wherein the Court held that the Legislature has power to validate actions under an earlier Act and that the Legislature is competent to enact a legislation with full retrospective operation. Such a course of action would not be an affront on the judicial power. This is so, because there is distinction between legislative and judicial functions. In I.N. Saksena, [31] the Supreme Court held:

"In view of this distinction between legislative and judicial functions, the legislature cannot by a bare declaration, without more, directly overrule, reverse or override a judicial decision, it may, at any time in exercise of the plenary powers conferred on it by Arts.245 and 246 of the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field fundamentally altering or changing with retrospective, curative or neutralising effect the conditions on which such decision is based".

As pointed out by Ray, C.J. in Indira Nehru Gandhi v. Raj Narain, [32] the rendering ineffective of judgments or orders of competent courts and tribunals by changing their basis by legislative enactment is a well-known pattern of all validating Acts. Such validating legislation which removes the causes for ineffectiveness or invalidity of actions or proceedings is not an encroachment on judicial power. Therefore a validating Act for the aforesaid purpose would be legal. When such a validating Act is enacted, the interests of those persons who would otherwise be entitled to institute a suit for partition or for claiming streedhanam can also be protected. They can be given a grace period by the provisions of the validating Act itself, within which period, they can institute the suit [33].Thus bona fide transactions made by Christians and even others can be legalised and those aggrieved could be given an opportunity to redress their grievances.

Yet another option for the State Legislature is to enact a State Amendment to the Indian Succession Act, 1925. Whether it is a validating Act or a State Amendment, il must receive the assent of the President of India, for its validity, as is provided under Art.254(2) of the Constitution. If the President assents to a State law which has been reserved for his assent (under Art.200), the State law will prevail over an earlier law of the Union, not withstanding its repugnancy to the Union law [34], if both the laws deal with a concurrent subject [35]. The result of obtaining the assent of the President to a State Act is that it would prevail in that State and it will have overriding effect on the provisions of the Central Act [36]. Therefore, there may not be any legal infirmity for such a course of action.

The State Government has yet another option open to it.lt can issue a notification exercising its powers conferred under S.3 of the Indian Succession Act, 1925 to serve the purpose. At any rate it is only just and proper that either the State Government/State Legislature or Parliament should resort to appropriate legislation to solve the problems created by the decision of the Supreme Court in Mary Roy.

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Footnotes:

1. Mary Roy and others v. State of Kerala and others. (1986) 2S.C.C. 209 = AIR 1986 SC 1011.

2. Section 6 lays down: "Repeals and savings-If immediately before the appointed day, there is in force in any Part B State any law corresponding to any of the Acts or Ordinances now extended to that State, that law shall, save as otherwise expressly provided in the Act, stand repealed".

3. V.M. Mathew v. Eliswa, 1988 (1) KLT 310 (D.B.). Also Joseph v. Mary 1988 (2) KLT 27 (DB).

4. Kurian Augusthy v. Devassy Aley, AIR 1957 T.C.1 = 1956 K.L.T.559

5. D. Chelliah v. G. Lalitha Bai, AIR 1978 Mad.66.

6. For a detailed discussion see Sebastian Champappilly, "Christian Succession and Probate of Wills -- Need for Change" - 1993 (2) KLT (Journal) 32.

7. Joseph v. Mary, 1988 (2) KLT 27 (DB). This case is a classic example as to how the settled property relations can be unsettled even after so many years.

8. Sosa v. Varghese, 1993 (2) KLT 798.

9. Judgment dated 28-10-1993 in CMA.No.169 of 1993, of the High Court of Kerala.

10. These Christians of Travancore and Cochin are called Syrian Christians or St. Thomas Christians.

11. The Syrian Christians of Travancore, Cochin and Malabar were under the ecclesiastical control of the Bishops sent from Mesopotamia. On the death of Mar Abraham the Syrian Bishop of the See of Angamali in 1597, the Archbishop of Goa, Menezes, managed to take control over the Syrian Christians and brought them under the direct control of the Pope, using Portuguese support, and he burnt all the collection of books and documents relating to the Syrian Christians maintained in the churches, and this is why we have so little written evidence of the history of the Syrian Christians in India before the 16th century. As part of his strategy to gain control over the Syrian Christians, he called all the representatives of the Syrian Christians from all the parish churches to a Synod at Diamper in 1599. See: CD. Firth "An Introduction to Indian Church History". (1976 Revised Edition) 89.

12. Cardinal Eugene Tisserant, "Eastern Christianity in India". (1957 Edition) 163.

13. Actio 9, Decretum 20, Bullarium Patronatus Portugalliae Regum, App.I.

14. Geevarghese Maria v. Kochukurian Maria, 22 TLR 192.

15. Ouseph Mathai v. Ouseph Kora, 22 TLR 205 (FB)

16. Cheriyan Achanpillai v. Cheriyathu Kuruvila, 23 TLR 84.

17. See Preamble of Travancore Christian Succession Act, 1916.

18. Abraham v. Abraham, 9 M.I.A. 195.

19. Kurian Augusthy v. Devassy Aley, AIR 1957 T.C.1; 1956 K.L.T. 559.

20. Solomon v. Muthiah, (1974) 1 MU 53.

21. D. Chelliah v. G. Lalitha Bai, AIR 1978 Mad. 66.

22. The Supreme Court in Chiranjit Lai v. Union of India, AIR 1951 SC 41 at para.44-45, observed: "Art.32 is not directly concerned with the determination of constitutional validity of particular legislative enactments. What it aims at, is the enforcing of fundamental rights guaranteed by the constitution, no matter whether the necessity for enforcement arises out of an action of the executive or of the legislature... the sole object of the Article is the enforcement of fundamental rights guaranteed by the constitution... A proceeding under this Article cannot really have any affinity to what is known as a declaratory suit". Also see Lakshmanappa H.J. v. Union of India, AIR 1955 SC 3, Rain Chandra Palai v. State of Orissa, AIR 1956 SC 298.

23. Khyerbani Tea Company Ltd. v. State of Assam, AIR 1964 SC 925 para.43.

24. See Chief Justice Marshall's famous observations in United States v. Percherman, 7 Pet.51, 86. (Peter's Prince Edward Island Reports, Chancery -1857) (1850-1872).

25. See German settlers in Poland-Permanent Court of International Justice. (1923) P.C. I.J. Series B. No.6.

26. Section 29(2) enacts: "Save as provided in sub-section (1) or by any other law for the time being in force, the provisions of this Part shall constitute the law of (India)* in all cases of intestacy".

*Substituted by Ac: No.III of 1951.

27. In fact this has been the view of the Supreme Court as it observed in State of Punjab v. Mohar Singh Pratap Singh. (AIR 1955 SC 84 at page 88). "Whenever there is a repeal of an enactment, the consequences laid down in S.6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject the court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities, hut whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that S.6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. S.6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material".

28. This opinion is based on the tentative conclusion made by the present writer after an analysis of the empirical data collected in connection with his Ph.D. Programme in CUSAT.

29. See the report in the vernacular daily "Deepika" dated 1-11-93 wherein, Mar Antony Padiyara (the Major Archbishop and Cardinal) expressed the view that the retrospective effect causes hardships for the community. A further report in the vernacular daily "Malayala Manorama" dated 15-11-93 reported that the All Kerala Catholic Women's Organisation had called upon the Government to implement the Indian Succession Act, from 1986 only.

30. Hari Singh v. The Military Estate Officer (1972) 2 SCC 239 = AIR 1972 SC 2205.

31. I.N. Saksena v. State of M.P. (1976) 4 SCC 750 para.22 = AIR 1976 SC 2250. Also see, D.D. Patil v. Special Land Acquisition Officer, AIR 1989 Bom.286.

32. Indira Nehru Gandhi v. Raj Narain, 1975 Supp. SCC 1.

33. When the Limitation Act, 1963 was enacted, such a provision was made by S.30 of the Act

34. U.P. Eke. Supply Co. v. R.K. Shukla, AIR 1970 SC 237 at 239.

35. Karunanidhi v. Union of India, AIR 1979 SC 898 (para.8)

36. Narayanan Namboodiri v. Chinna, 1993 (2) KLT 848 at 851.

A Comment on 1995 (2) KLT 386

(By P. Rajan, Advocate, Thalassery)

A Division Bench of our High Court recently held that offence under Section 138 of the Negotiable Instruments Act, 1881, cannot be compounded by invoking Section 482 Cr. P.C since the Act does not expressly permit composition and Section 320 (9) Cr. P.C. also prohibits; according to the learned Judges. The point to ponder is though the enactment in question is silent On this aspect, can't the High Court permit composition of the offences being under a special statute, considering the scope, ambit and purpose of it?

The newly inserted provisions in the Negotiable Instruments Act 1881, Sections 138 to 142 (Amendment Act 66/88) speak of the offence, mode of trial and punishment. It is pertinent to note that these provisions have been introduced to check the menace of issuing cheques indiscriminately by persons knowing about the consequences on presentment to the banks and afterwards, causing embarrassment to many, including bankers. Civil suits often and rarely complaints under Section 420 I.P.C. were the remedies of the aggrieved, till then. Since Act 66/88 has came into effect from 1.4.1989, effective remedy is extended to the drawee or holder in due course of a cheque even dishonoured by the drawer's bank to achieve desired legislative intent, General law regarding period of limitation, jurisdiction of trial court to award sentence etc. have been specially mentioned in the statute itself, by passing the general provisions contained in the Code of Criminal Procedure. It is expressly made clear that the provisions in the Act alone need be looked into, while trying a complaint under Section 138 of the Negotiable Instruments Act for several purposes. Time to launch a complaint is minimised to 45 days only, on issuance of the statutory notice contemplated under Section 138(b) of the Act and a First Class Magistrate is empowered under the Act to award fine amount exceeding Rs.5,000/-. These special features are strikingly different to Section 468 and Section 29 of the Code of Criminal Procedure. This has gained approval of our High Court (1993 (2) KLT 769), also.”

Considering these patent deviations from the general rules of law, it is reasonable to opine and prudent to think that the purport of the enactment is to give rapid remedy to the complainants' by avoiding the normal and cumbersome procedures under general law, which occasionally occur. If so, can composition be refused, even if the statue is silent? The learned Judges have refused permission mainly holding that Section 320(9) Cr. P.C. is an express bar for compounding other offences, if not detailed in Section 320(1) and (2) of the Code. In effect sub-section (9) speaks about the process of composition and the same could be done in the manner Section 320 Cr. P.C. permits. For example, persons who are competent to compound the offences under the Indian Penal Code are detailed in sub-sections (a) and (b) of Section 320(4) and only such persons can compound those offences. Section 320 does not say that if a special enactment does not favour compounding of offences under that statute, this provision under the Code cannot be pressed into service. In short, if circumstances warrant, courts can permit composition in the manner in which Section 320 prescribes, for procedural formalities. Even if Section 320 is in applicable, as held by our High Court, will it curtail the inherent powers of the Hon'ble High Court to allow settlement of complaints by invoking Section 482 Cr. P.C. Section 482 with its wide scope, permits the High Court to act in order to secure the ends of justice. Considering the purpose of the enactment, coupled with the relief and remedy that could be given to the concerned parties the High Court can permit compounding of complaints by resorting to Section 482 Cr. P.C, at least by over-looking Section 320 Cr. P.C. Otherwise, sometimes, the complainants also would be placed in a disadvantageous position; say for example, if a trial Court does not award, after the conclusion of the trial, the entire cheque amount as fine to the accused, and chose to tack on a short term of jail sentence as part of the sentence, complainant's grievance remain not redressed. Even though the accused is liable to pay the whole cheque amount, and the complainant could not appeal for enhancement of sentence, or his attempt before the appellate forum became futile, the desired result remain unachieved. If the accused in such circumstances if attempt to settle the complaint before the appellate forum in his appeal, by offering the entire cheque amount, probably to avoid the jail term, the present ruling put both the parties in peril. Relating to an offence under Section 138 of the Negotiable Instruments Act, dishonour of the cheque by the bank itself does not give cause of action to the drawer. This is an advantage given to an accused to make payment after dishonour of the cheque and on intimation from the payee. This seems to be avoid litigations at the first instance itself, without giving any time to settle the disputes out of Court. In grievous offences which are non-compoundable, the Apex Court has granted permission after considering certain reasons advanced by the parties, in appeals filed under Article 136 of the Constitution. (AIR 1988 S.C. 2111). If so, the High Court also can extend the relief of composition under Section 482 Cr. P.C. Since complaint under Section 138 of the Negotiable Instruments Act are on escallation. Genuine attempts for settlement by payment of the amount, though belated due to varying reasons, will remain unanswered otherwise. Thus a larger Bench's intervention is needed to resolve the issue, in order to express desired motto of the law makers.

*The Importance of being a Lawyer

By T.P. Kelu Nambiar, B.A., M.L., Senior Advocate, High Court, Ernakulam)

The topic, namely 'The Importance of being a Lawyer', is abounding. Therefore I propose to deliver this address with style and substance; not as ramble reflections. I shall endeavour to designate the locus of the problems facing the profession of law. Remember, we are all far more capable than we ever imagine. I shall today tell you what you want to know, not only what you want to hear, about the role of lawyers, their duties, manner of functions, advocacy and accountability of the Bar and the Bench.

The legal profession is admirable. Ours is said to be a learned profession. We learn the law from books but we cannot learn men from books or briefs. It is said that silence is learnt from the talkative; toleration from the intolerant; kindness from the unkind. And learning is most requisite which unlearns evil. The learning and knowledge which we have are, at the most, but little compared with that of which we are ignorant. Therefore, a lawyer of today should learn a lot, apart from law books. He should be a man of multiple excellences. It is said dial a lawyer who has not studied economics and sociology is apt to become a public enemy. Leadership and learning are indispensable to each other. My idea in skirting in this strain is to impress upon you the importance of the role of really learned lawyers in public life. We should disabuse the feeling, inveterate though, that the trouble with law and society is lawyers. Benjamin Franklin had to say that a countryman between two lawyers is like a fish between two cats.

Our profession, said Daniel Webster, is good if practised in the spirit of it; it is damnable fraud and inequity, when its true spirit is supplied by a spirit of mischief-making and money getting; the love of fame is extinguished; every ardent wish for knowledge repressed; conscience put in jeopardy; and the best feelings of the heart indurated by the mean, money-catching, abominable practices which cover with disgrace some of the modem practitioners of law. The Preamble to Standards of Professional Conduct and Etiquette' in the Bar Council of India Rules, exhorts:"An Advocate shall, at all times, comport himself in a manner benefitting his status as an officer of court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity, may still be improper for an Advocate". It is the duty of the lawyers to give voice to silences, clarification to ambiguities and content to omissions. While carrying on the duties of our profession, we should ever remember that law is made for man, and not man for law. The State today exercises a degree of control over the individual far exceeding in scope and intensity, that of any other period of history, as noted and discussed by W. Friedmann. There is an interlocking of the State functions and the human factor. It is the duty of the lawyers to stand guard for the essential foundation of liberty, namely 'rule of law' or 'rule under law', and bid challenge to 'rule by law' which can be the most efficient instrument in the enforcement of tyrannical rule. And it is here that the lawyer should emerge as a protector. And it is here that a lawyer's responsibility lies. And it is here that the legal profession has to play its role with courage and conscience. Responsibility walks hand in hand with capacity and courage. And courage consists in seeing and conquering danger. Faith is courage. And faith knows no disappointment, said Gandhiji. We would strive for a brave, bold, intrepid, daughty and confident bar. We should never indulge in competitive servility and sycophancy. Hardwork will always emerge triumphant. You should start moving and performing, not merely surviving. You will have to make stepping stones out of stumbling blocks, and show your relevance. Throw your hat over the fence; then you will sure climb the fence.

Just as child is the father of man, the lawyer is the father of the judiciary. An independent bar is the essential pre-requisite of an enlightened judicial set up, and the word 'independence' is united to the ideas of dignity and virtue, says Jeramy Bentham.

The law, as a vocation, is something altogether more dynamic and specialised. Education in the law must be the achievement of a skill, and, with it, the development of brain and personality, the total enrichment of the mind. The legal mind can only grow through legal thinking, just as the art of swimming is developed through plunging into water. One who plunges in medias res, is at the heart of the subject. The best legal history is the case law, and great jurists and legal historians have adopted that approach.

According to Disraeli, himself a master of argument, an Advocate is one who is able to "illustrate the obvious, elaborate the self-evident, expatriate on the common place". The aim of advocacy is the persuading or convincing of an audience to agreement with a contention about facts or with a programme of conduct. This calls for perception, and clarity, patience and determination in the presentation of the essential details with emphasis, order and significance, using common sense especially, remembering the African Proverb: "There are 40 kinds of lunacy, but only one kind of common sense". An orator convinces his followers, not his opponents. A lawyer, by forensic casuistry, convinces his opponents, not his followers.

The Advocate, in order to be successful in his plea, has himself to convince. Argument ,is secondary to facts. Evidence is the mass of fact out of which argument is framed, and without which advocacy is an empty appeal for sympathy. Advocacy is not a sermon on the battlefield.

A man cannot see his back, and so also he will not be able to detect his own faults. This is true of Judges as of lawyers. We require Judges and lawyers with audited mind. According to J.A. Strahan (in his book 'The Bench and Bar of England'): "To the lawman every judge is equally a judge; but to the lawyer there are judges and judges. There are some judges whose rulings on any moot point of law is taken as settling it forever; there are others who, to use Lord Ellenborough's phrase, are fit only to rule copybooks.....Owen Meredith once said that the King could accomplish things beyond the power of Heaven itself; and, when asked for example, he stated that the King, by making her husband a knight, had made a certain woman a lady. In the same way the King, by making him a judge, can make "an unlearned lawyer an authority on law .... Lord Westbury, in his sardonic way, once said that persons bearing a certain name well known in the legal world, succeeded to places on the Bench per stirpes and not per capita. To a certain extent that was true, since few of that name ever won much reputation at the Bar. The qualities required to gain success as a judge and as an advocate are essentially different". The attempt should be to upgrade the quality of persons connected with the legal profession and the judiciary.

Justice Pandian, in the decision of the Supreme Court relating to appointment and ttmsfer on Judges (Supreme Court Advocates-on-Record Association v. Union of India - 1993 (4) SCC 441) posed questions on 'Solomon's throne', 'Solomon's House' and 'Kingdom of Solomon' and answered the questions in favour of Solomon's sovereignty.

Let us pose the question: Is Solomon accountable to anybody. If accountable to whom.

Let me answer the question first: Solomon is accountable; and the accountability is to the people of India.

I read the Constitutional Oath to be made by the Indian Solomon:

"I, A.B., having been appointed a Judge of the High Court of (X) do swear in the name of God that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill will and that I will uphold the Constitution and the laws".

Therefore the Judge swears to bear true faith and allegiance to the Constitution of India, and to uphold the Constitution. The Constitution was adopted, enacted and given unto themselves by the people of India. The Preamble to the Constitution of India reads:

"WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all;

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November 1949, do HEREBY ADOPT ENACT AND GIVE TO OURSELVES THIS CONSTITUTION'.

Therefore, judicial power, though not accountable to the Executive or to the Parliament, must be answerable to the People. As Justice V.R. Krishnalyer said: "The judiciary derives its power under the Constitution, not over it".

Horold Laski had to say: "Obviously, therefore, the men who are to make justice in the courts, the way in which they are to perform their function, the methods by which they are to be chosen, the terms upon which they shall hold power, these, and their related problems, lie at the heart of political philosophy. When we know how a nation-State dispenses justice we know with some exactness the moral character to which it can pretend".

The justicing system is too serious a business; and it is better not to leave it to the Judges alone. The Bench and the Bar must be mutually accountable to the dispensation of the system.

The judgment of justices should be the judgment of the Constitution. I say with the belief that I am not committing indiscretion that a judge is not a bestower of knowledge. He is only one presiding over a cause, and lawyers unravel the factual and legal aspects of the cause for him to render decision. And mutual respect is the order of the right relationship between a judge and a lawyer. It is not the master-servant relationship. And remember, the invisible and intangible law is not the exclusive preserve of judges. Dignity of position adds to dignity of character. This is true of judges and lawyers alike.

The legal profession today is on the hit list of the public. Therefore lawyers should avoid even the appearance of professional impropriety; and conduct themselves so as to reflect credit on the legal profession and to inspire the confidence, respect and trust of their clients and of the public. A lawyer should be as a clean as the whistle.

Advocacy exists for nobler uses than to construct fictions or scatter calumnies. An Advocate should first tame his mind, as an untamed mind is dangerous to advocacy. An insolvent mind is an insolvent mind. You cannot win a cause by taking a dose of ephedrine; you can possibly win a race or game. That winning and persuasive faculty, said Bishop Sanderson (in Ad Magistratum) is an excellent gift of God; and the good blessing of God be upon the heads of all those that use their eloquence aright, and employ their talent in that kind for advancement of justice. Ours is a profession which ought to be above suspicion and reproach. Each member of the profession ought not only to be impressed with patient devotion in the study of the first of human sciences, - the law, but dwell upon the thought that he belongs to an order in which have been enrolled the names of some of not only most eloquent, but the wisest and most virtuous of men. Try to plunder the past glory of the profession.

The categorisation of lawyers as senior and junior can at best be trade marks. That has nothing to do with professional capacity and purity. Be respectful of seniority, but be not be overwhelmed by it. Mind your profession; you will win the jackpot. Once you join the bar, you will be nobody' s case; you will have to look after yourself, unless you enter with an impressive inheritance. You cannot look upon the judge as your care-taker. You do not constantly contemplate the form of a judge as you do of God.

Sir Edward Clarke, K.C., a famous member of the English Bar, once said that success in the profession depended on three factors. The first was to have an infinite capacity for hard work; the second was to have no money; and the third was to be very much in love; not, of course, carnal, but professional. A capacity for hard work combined with such powerful incentives will no doubt carry one far towards success, of course, with other qualifications necessary to attain it. In his Foreword to the second edition of Rao Bahadur K.V. Krishnaswami Aiyar' s book of Professional Conduct and Advocacy, Sir Maurice Gwyer, Chief Justice of India, (at that time, the Federal Court) deplored the lowering of standards of the profession. Even in those days (in 1945), it was considered that one cause for the fall in standards was the great over-crowding of the profession and the, struggle for existence among its less fortunate members, since the weaker brethren are thereby exposed to temptations which they are not always able to resist. This, the learned Chief Justice said, is a matter which affects the public as well as the profession itself, for any diminution in the respect felt for lawyers as a whole must affect prejudicially the whole administration of justice. The learned Chief Justice ventured the following suggestion; "It is therefore worthwhile to consider whether there is any effective means of preventing these excessive numbers. I think that all would regret any artificial restriction on entry into the profession which might have the effect of making it a preserve for the well-to-do and shut out young men of small means but great promise. I have, however, often thought that it is too easy at the present time to become a lawyer and that the standards of law examinations are in many cases far too low. To raise those standards and thus to ensure that only properly equipped young men are able to enter the profession would, as it seems to me, be not only a legitimate but an extremely beneficial step. Nor do I think the teaching of law in India is all that it might be, and I should like to see some united effort among the different law schools with a view to its improvement generally". This remains the situation even after more than fifty years since Sir. Maurice Gwyer had expressed his views.

Let me make a re-run of a passage in a recent address delivered by me:

"An Advocate has myriad duties towards his clients. A client engages a lawyer for his advocacy, not for his judgment. A lawyer is to do for his client all that his client might fairly do for himself, if he could. This is what Dr. Johnson said. According to Cockburn C.J., an Advocate ought to uphold the interests of his clients per fas, but not per nefas. Dr. Johnson was right when he said that the justice or injustice of the cause is to be decided by the Judge. Charles I was wrong when he said he would not have become a lawyer, because "I cannot defend a bad, nor yield in a good cause". An Advocate is bound to accept any brief in the Courts or Tribunals or before any other authority in or before which he professes to practise at a fee consistent with his standing at the B at and the nature of the case. Special circumstances may justify his refusal to accept a particular brief. It shall be the duty of an Advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client. The duty of an Advocate to keep accounts of the client's money, is a duty of high order, breach of which would entail proceedings for professional misconduct".

An Advocate has a prior, primary, perpetual and paramount retainer on behalf of truth and justice. A bad law can be set right by amendment; but the defect of a weak character cannot be cured by amendment. The profession of law is a great profession. A lawyer should avoid even the appearance of professional impropriety.

It would be tedious to enumerate the duties, rights, privileges and obligations of Advocates. It will be sufficient to state generally that the Advocates Act and the Bar Council of India Rules lay down provisions to regulate the duties and preserve the privileges of the order of Advocates, such as admission and enrolment of Advocates, right to practise, conduct of Advocates, standards of legal education, standards of professional conduct and etiquette, disciplinary proceedings against Advocates, duty to court, duty to clients, duty to colleagues, duty to render legal aid, restrictions on other employment etc.

Lord Hailsham, in his 'Sparrow's Flight', says that he has never ceased his sense of loyalty to the profession to which he belonged and that he has never ceased, to the best of his ability, to maintain its traditions and promote its interests; and adds that he believed sincerely that we are insufficiently aware of the extent that our own professionals, whether Judges or Advocates, show a shining example to the rest of the world.

In the admirable work of Meyer, (Esprit, Origin, et Progress des Institutions Judiciaries), in which he has investigated the origin and progress of judicial institutions in Europe, he strongly enforces the following view of the relation subsisting between the Advocate and the public: "He who has devoted himself to that profession which is as difficult as it is honourable; who receives in his chamber the most confidential communications; who directs by his counsel those who come to ask his advice and listen to him as though he were an oracle; who has the conduct of causes of the most important; who constitutes himself the organ of those who claim the most sacred rights, or the defender of those who find themselves attacked in their persons, their honour, or their fortune; who brings forward and gives efficacy to their demand, or repels the charges brought against them, (disencumbering the load of learning); he, I say, who does all these, must necessarily require the support of the public. By his knowledge, his talents, his morality, he ought to endeavour to win the confidence and good will of his fellow citizens". The great feature of the legal profession is that it is a republic open to all where the promise of reward is held out without fear or favour to such as have industry and ability; and, as the prizes that await the successful are magnificent, no class or rank disdains to compete for them. Nor can it be unimportant to the State to inform itself what are the principles of a body of men, without whose aid the laws of their country cannot be properly administered or enforced. That is the importance of being a lawyer.

Let us never forget our high vocation as ministers of justice and interpreters of the law. The lawyer holds a prominent place. Every lawyer should try to be a Hortensius, who of all the Advocates of antiquity, said Cicero, had given himself up most exclusively to that profession. Try to become an able lawyer. But do not carry negative baggage. Adjust your performance before the different courts, as you do with grass court, hard court, or clay court.

I stop here; and leave you to ponder over the great profession on the lines of bringing credit to law and credibility to the legal profession, remembering 'justice is never deaf, though blind'.

I am thankful to the providers of this opportunity and the tolerance of this evening's listeners.

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Foot Note

* Address delivered on 21.8.1995, at the High Court, to Junior Lawyers participating in the Legal Workshop, sponsored by the Indian Law Institute and the Kerala High Court Advocates Association.

Humour in Robes

(S. Parameswaran, Advocate, High Court of Kerala)

Law, literature and humour were inseparable companions in the days of yore. Ever since the nobility and learned nature of this oldest profession in the world started going down the Gadarene slope, and what was essentially a profession with its etiquettes, ethos, rigour and rhythm started degenerating into a trade, thanks to the influx of undesirable and undeserving persons into the field, these essential traits also started disappearing from the arena. The lawyers, and the judges, whose origin is in the lawyers, have, apart from undergang other qualitative degeneration, lost their sense of humour. One has, therefore, to be content with nostalgic memories of the past when law, literature, legality and lighter vein used to be visible in a commendable camaraderie.

The immediate provocation for these lines is a small incident that took place yesterday (24-10-1994) in the Court of Honourable Chief Justice. A batch of cases in which this writer appeared for the appellants was taken up for hearing. This writer sought for adjournment on the ground of his having to go out of station on professional work and submitted that it could be taken on a specified date. The puisne Judge sitting with the learned Chief Justice humourously asked what guarantee was there that this writer would be back and argue the cases on that day to which this writer replied that he would come back and argue, if he was alive. The junior Judge said that, that is the case with everybody. Then pat came the remarks of Chief Justice Sujatha Manohar "That is all the more the reason why the cases should be argued by you today", which threw the full court into reels of laughter. Without exaggeration it may be said that after the M. S. Menon Court, it was for the first time that one could witness such sharp witted and humourous comments from the Chief Justice's Court.

Talking of M.S. Menon, Chief Justice, who is one of the most intelligent Judges 'that adorned the Kerala High Court, the repartees exchanged between him and the late lamented doyen of the Bar, Thycaud Sri Subramania Iyer rush to one's mind.

Once during monsoon, Thycaud's case was called in the First Bench of Chief Justice M.S. Menon and Justice Govindan Nair. As usual, Iyer who was not in Court rushed to the Court Menon C J. said "Slowly, slowly Mr. Thycaud. It is slippery outside over there". Without batting an eyelid replied Thycaud, "Yes, I know My Lord. And I know that this Court is more slippery!". The whole court roared with laughter.

On another occasion, Justice Menon, who revelled and exulted in provoking Thycaud, pointing to the cracks in the outer wall of tire Court hall told Sri Iyer "Look there, Sri Iyer, there are several cracks over there. What shall we do?". Without pausing for a minute, Iyer replied "Yes, My Lord, I saw that - But there are bigger cracks within this Court. I am concerned about it" Needless to say, Justice Menon, with his partly frame and penetrating intellect, shook with laughter.

On another occasion, Sri Menon, who could not brook mediocre, presentation or prosaic agreements or bad English, told a counsel, stopping his harangue midway, "Look here, Mr........, you are now making your valuable (!) contribution to the jurisprudence of this country to the detriment of your client and the delectation of the bench". Poor counsel, he took it as a compliment and patted himself on his back!

The illustrious Supreme Court lawyer of yesteryears Sri. A.V. Viswanatha Sastri was as much notable for his sense of humour as for his sharp wit, voluminous practice, frugal living and dishevelled attire and appearance. Justices Jeevanlal Kapur and S.K. Das of the High Bench, who were highly appreciative admirers of Sastri, delighted in taunting him to bring out his repartees. Once Sastri argued a Special Leave Petition in Das, J's Court and rushed off to another Court. Finishing argument in a case there, he rushed back to Justice Das's Court to argue another case. He went on repeating the process, when, unable to control his tongue, Justice Das remarked, "Mr. Sastri, you are all the time coming back to us like a bad coin" Spontaneous came the reply of Sastri "My Lord, Your Lordships may not talk of bad coins because Your Lordships came every day to the Court". A peel of laughter went around the Court.

I may conclude these lines mentioning an incident involving, Thycaud, Justice P.T. Raman Nayar, as he then was, was sitting in a bench dealing with Second Appeals admission and hearing. Nayar, J., wlto was a very competent Judge, had prejudices and predilictions. His.Lordship was dismissing all cases listed for admission on aparticular day. When a week case of a favourite lawyer of his came up, Justice Raman Nayar without hearing at length, admitted the Second Appeal and granted stay. Then came the tarn of Thycaud. The indefatigable, illustrious and irrepressible lawyer, in his inimitable style, opened his arguments, "My Lord, my first submission is that my case is not as bad as that of my learned friend Mr......(meaning the favourite of the Judge)". Before he uttered the next word, the Court ordered: "Notice and interim stay". It is our benighted fate that we have to remain content with the nolstagic memories of such lawyers and judges who enriched the law of life with their sharp wit and witticism, remarkable presence of mind, commendable perpicacity, incisive analysis, sturdy independence and priceless integrity. Such great men will ever remain an outstanding ever-blazing comet in the legal firmament.

Judicial Repentance or re-thinking?

(By. S. Parameswaran, Advocate Ernakulam)

(1) One is not dismayed, but dejected and disappointed, on reading the news item entitled "Judge deletes own remarks on V.V.I.P." in the Indian Express dated 24.9.95. Justice Jagadeesan of Madras High Court suo moto deleted certain paragraphs from his judgment concerning the mega-wedding of Sudhakaran, the foster son of the megalomaniac Madras Chief Minister Jayalalitha. He cannot claim to be poineer of suo moto review on the judicial front, for, way back in 1968, Chief Justice M. Hidayathullah of the Supreme Court suo moto reviewed a judgment passed by his Lordship in circumstances entirely different and justifiable.

(2) Justice Jagadeesan's belated attempt is to wriggle out of the opprobrium and onslaughts rightly directed towards him by the discerning common men and the enlightened public of this country. When the case came up on 4.9.1995 before the Bench, the Judge appeared independent and earnest in adjudicating the case, and gave certain directions to the Respondents and the Advocate General. But, in spite of persistent and persuasive efforts by the counsel for the petitioners, who were themselves Advocates of the Madras High Court, Justice Jagadeesan did not give an early posting, but posted the case for orders on the 7th September to be delivered after the wedding, thereby rendering infructuous and nugatory the writ petition itself.

(3) One is not surprised at such conduct of the higher judiciary in this country which has witnessed several instances of the higher echelons of the judiciary functioning as evolutionery extensions of the Establishment.

Self-seeking sychophancy has ceased to be the exclusive preserve of the politicians and the Bureaucracy in this country; it has found fertile soil in the higher echelons of the Indian Judiciary as well. Chief Justice Coke of England, who repudiated Government of men in favour of Government of law (Non sub sub homine sed sub deo et lege) and invited the wrath of the monarch of England must be turning in his grave.

(4) In the present, case it was the critical editorial in Tuglaq, a Tamil fortnightly, that has apparently spurred Justice Jagadeesan into deletion of his observation. After having done great damage through his judgment there was nothing for the Judge to lose by deleting the observations in question. The reasoning given by the learned judge for his review is astounding, and no less agonising. It is not a remorse-stricken retreat, but a belated attempt at escapism on account of a frontal attack from the Fourth Estate. Nor does the learned Judge appear to have been swayed by the observation of Justice Jackson of U.S. Supreme Court;"we are not final, because we are infallable, but we are infallible because we are final".

(5) Justice Jagadeesan's decision aroused the ire of the public and the press by inventing and extending a protection to the powers and prerogatives of the Chief Minister by eclipsing the egalitarian ethos informing Article 14 of the Constitution.

(6) Our constitutional set-up and development of Indian jurisprudence in the post Independence era provide opportunities to individual justices to influence the development of constitutional law and public policy significantly. In certain cases they can be specially influential because of the force of their intellect and the power of their personality or of their commendable persuasive capacity. Justices Krishna Iyer, Bhagwati, Chinnappa Reddy, Dharubhai Desai, Y.V. Chandrachud and P.B. Gajendragadkar fall in this category. Their social vision and moral mission have given a totally new look and direction to the Apex Court and they translated Justice Vivian Bose's famous dictum that the Constitution is not meant only for the affluents and the influential, but also for the butcher, the baker and the candle stick makers" into an operative reality. They are the salt of the earth. But, unfortunately, we had and have a few Justices who a la Jagadeesan, J. express views and expound philosophies from the Bench making people suspect that they do with an eye on their personal future. The black robes of judicial office cannot eliminate the human attributes and motivation of the people appointed to sit on Bench.

(7) When dealing with subjects like judges who are relatively inaccessible and purposefully obscured behind a symbolic facade, one has to be cautious and must avoid speculation. But in order to ensure and promote the collective understanding of the judge's roles in the Indian legal and judicial system, one must necessarily have the freedom critically to observe and analyse their judicial conduct. Jurimetrics is a sine qua non for the healthy development of any judicial system and the preservation and promotion of the Rule of Law. And the public has to keep a vigilant watch to see that an institution expected to be the sentinel on the qui vive does not degenerate itself into a semantic forum for self-seeking sycophancy. A drop of vinegar will suffice to spoil and savour a whole cup of milk.

(8) In judicial discourse, atleast in the tradition of legal justice in the Anglo-American orbit, the will to power has to be constantly, in each decision, justified by an act of reasoned discourse. Judges have to give cogent reason for their decisions, which have to be publicly articulated and reported (unlike a Minister's order on files). Not merely is this articulation and publication of reasons thus structured, it has also to form part of a corpus of judicial reason itself. In other words, past decisions are a guide, and they sometimes bind, the future scope for decision. The obligation for public discourse is thus writ large on judicial power which, all said and one, is not like the executive and legislative power residing in the domain of sheer will. It also straddles the domain of reason, judicial power is the jurisdiction of reason in ways that neither legislative nor executive power is, in its very nature. (Upendra Baxi, "Judicial Discourse : Dialetics of the Face and the Mask" 35 J .I.L.I. (1993) page 1).

(9) In the imperfect legal setting and political atmosphere we have in this country, we expect our Judges to uphold the Rule of Law and yet not utterly disregard our need for the discretionary justice of Plato's philosopher king, to be cautious sometimes and sometimes to be bold, to respect both the traditions of the past and the convenience of the present, to reconcile liberty and authority, the whole and its parts, the letter and the spirit. The great judge is an "activist", a legislature who uses the law's inevitable ambiguities to promote justice and, no, doubt, he carries the merciless burden of adjudication. Justice Jagadeesan cannot take shelter under the Holmesian "can’t helps" to justify his conduct. " A judge must manage to escape both horns of the dilemma", he must preserve his authority by cloaking himself in the majesty of an overshadowing past but he must discover some composition with the dominant trends of his time - at all hazards he must maintain that tolerable continuity without which society dissolves, and men must begin again the weary path up from savagery". (Learned Hand, 'The Spirit of Liberty' 3rd Edition Dilliard, 1960, page 130).

(10) Tail-piece:

                             "I live with bread like you, feel want

                             Taste grief, need friends, subjected thus

                             How can you say to me I am a King".

                                                                                                  (Shakespeare's Richard II).