Legal Etiquette: Its Divine Spirit

(By R.P. Remesan, Advocate, Kannur)

Kannur Bar Association had an occasion to cogitate about an issue whether a lawyer who is appearing for the appellant is able to file vakalath for one of the defendant in the same case saying that the defendant is supporting the case of the appellant. It is learnt that the matter has been referred to the Bar Council of Kerala for their remarks for the District Judge of Alleppey and the matter is pending there. It has caused an outburst of enthusiasm.

The Bar Council of India Rules clearly explain the conduct of an Advocate while accepting a brief. The R.33 reads "An Advocate who is, at any time, advised in connection with the institution of the suit, appeal or other matter or has drawn pleadings or acted for the party shall not act appear or plead for the opposite party".

While framing the standard of professional conduct and etiquette it has preambled that "An Advocate, at all times, conduct himself in a manner befitting his status as officer of the Court, the previleged member of the community, and the gentleman, bearing in mind with 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 will be improper for an advocate". The Rules specifically describe the professional ethics in very clear terms. It further says about the duty cast upon an Advocate while he is professing as a lawyer. S. 34 of the said rules denotes the duty of the lawyer to his opponents. R. 34 reads "An Advocate shall not in any way communicate or negotiate upon the subject matter of controversy with any party represented by an Advocate except through that Advocate".

The stand of a lawyer who appeared for the plaintiff as well as one of the defendant in the appeal is to be evaluated in the light of the above provisions.

It is impossible to describe all the situations that lead to misconduct. Of course, there are so many occasions to be avoided by an Advocate while practicing Advocacy. The basic principle is that nothing should be done by any member of the legal fraternity which might tend to lessen in any degree of confidence of the public in the fidelity, honesty and integrity of the profession. So, an act that was done by an Advocate should be measured to see whether it will decrease the integrity or raise any suspicion over the integrity of the said Advocate. If the response is positive such act should be curtailed at the outset.

R. 33 interdicts the Advocate to accept brief from the plaintiff and the defendant at the same time. The Advocate is not supposed to accept brief while retained by one party to accept the brief of the other. In a case Supreme Court held that "It is not in accordance with the professional etiquette for an Advocate while retained by one party to accept the brief of other. It is unprofessional to represent conflicting interest except by express consent given by all the concerned after the full disclosure of the fact (AIR 1983 SC 1012). The above ruling seems to justify the act of Advocate herein if he obliged to the condition stipulated in the Supreme Court decision. The Court is of the opinion that it is possible to represent for the both parties even though there is conflicting interest, providing the Advocate shall be given consent by all concerned after a full disclosure of the facts. There is no guidelines or explanations how far it can be possible for an advocate. If it is a very conflicting issue it is not possible for an Advocate to get the consent of all the parties. So we need not place much reliance on this point.

The ruling laid down by the Supreme Court in AIR 1984 SC 110 states that improper legal advice amounts to professional misconduct. Therein it is stated that "When the person consults the lawyer for his advice, he relies upon as requisite experience, skill and knowledge as a lawyer and the lawyer expected to give proper and dispassionate legal advice to the client for the protection of the latter's interest. An Advocate stands in loco parentis towards the litigants and it therefore follows that the client is entitled to receive disinterested, sincere and honest treatment especially where the client approaches an Advocate of succour in times of need." Since it is the duty of a lawyer to give dispassionate legal advice to his client and the right of the client to receive disinterested treatment from the lawyer, it is not appreciable to accept brief from both parties in the same case. The matter in question contains an averment that the defendant is supporting the case of the appellant. At the time of filing of the case there may be a consensus between the defendant and the plaintiff. By the passage of time, some conflicting interest may arise. On such situation, the stand of the Counsel will not be justified on any ground. He may say that he will withdraw the vakalath of either party on such occasions. This will not change the situation. The Advocate knows the case of the other side and the advice given by him to other party, even though he (relinquishes his vakalath. It is worthy to see the rulings laid down by the Supreme Court In-Re. Sanjeev Datta (1995) 3 SCC 619). It is held that "some members of the profession have been adopted perceptibly casual approach to the practice of profession as is evident from their absence when the matters are called out, the filing of incomplete and inaccurate pleadings many times even illegible and without personal check, verification, the non -payment of court fees ands process fees, the failure to remove of his objections, the failure to take steps to serve the parties et-al. They do not realise the seriousness of these acts and omissions. They do not amount to contempt of the court but do positive disservice of litigants."

On accepting a brief it is the bounden duty of the lawyer to appear before the Court. If he fails to appear before the Court it is a breach of his professional duty. (AIR 1984 SC 618). In the light of this ruling, the act of the Advocate herein raises suspicion. If the Advocate had an occasion to realise that the parties having conflicting interest on the issue and if he is bound to relinquish the brief of one party unilaterally, his withdrawal causes the absence of one party before the Court. On such situation the Advocate will be liable for the breach of his professional duty. The following judgments strictly speak about the necessity of preserving the dignity and purity of this profession. Judgment reported in AIR 1993 SC 1183 in which it is stated that "Legal profession must give the interospection of itself. The general impression which the profession gives today is that the client on service is disappearing and the profession is being commercialised. It is for the members of the Bar to act and take positive steps to remove this impression before it is too late".

It is wiser to see some excerpts of the decision reported in AIR 1994 SC 1654 "Legal Profession is essentially the oriented profession. The ancestor of today' s lawyer

was no more than a spokesman who rendered his services to the needy members of the society by manipulating their case before the authorities that to be. The service were rendered without record and the remuneration received or to be received. With the growth of litigation, lawyering became a full time occupation and most of the lawyers came to depend upon it as die sole source of livelihood.....The relationship between the lawyer and his client is one of trust and confidence. The client engages the lawyer for personal reasons and is at liberty to leave him also for the same reasons. He is under no obligation to give reasons for the withdrawal of brief from his lawyer. The lawyer in turn not an agent of his client and he is dignified responsible spokes man.... He is essentially an adviser to his client and is rightly called me Counsel in some jurisdictions. One acquainted with the facts of die case, it is the lawyer's discretion to choose the facts and points of law which he would advance. Being a responsible officer of the court and the important adjunct of the administration of the justice, the lawyer also owes duty to the court as well as to the opposite side. He has to be fair to ensure that the justice is done. He demeans himself if he acts merely as a mouthpiece of his client".

The decision of Kerala High Court invites assiduous consideration with regard to the dispute in question. It is held that".. .State Bar Council and die Bar Council of India has public duty to perform, namely, to ensure with the monopoly of pradice that is granted under the Act is not misused or abused by a person who is enrolled as an Advocate" (1995  (I)  KLT 311). It is further held that die Bar Council has been created at the State level or Central level not only to protect rights, interests and previliges of its members but also to protect the litigating public by ensuring that high and noble traditions are maintained so that the purity and dignity of the profession are not jeopardized". Considering the aspect that the Bar Council has a bounden duty to see that monopoly of practice granted by the Act is not misused or abused by the person who is enrolled as an Advocate, the Bar Council should submit their remarks to the District Judge that the practice of accepting vakalath of both parties is not appreciable one. In the instant case, one may argue that there will be no harm in accepting the brief from the appellant as well as one of die defendant who is supporting die case of die appellants. This may be a debatable point. But so far as the dignity of the profession is concerned it is the duty of the lawyer to show the public that he has been acting in a faithful and dispassionate manner. The phrase that "the justice not only be done but seems to have been done" also deserves attention. This phrase is applicable to the field of etiquette of a lawyer. He should show die public that he acted in such a manner. The act of die lawyer in die instant case will not show that he has been acting that way. It also invites our attention to die judgment given by Justice Krishna Iyer, in Rangadurai case (AIR 1979 SC 281) that "It is not in accordance with die professional etiquette for one Advocate to hand over his brief to another to take his place at a hearing either for the whole or part of die hearing), and conducting die case as if the latter at himself been briefed, unless the client consents to this course being taken. The counsels paramount duty to the client accordingly where he forms an opinion of conflict of interest exists, his duty is to advice the client that he should engage some other lawyer. It is unprofessional to represent conflicting interest, except by express consent given by all concerned after full disclosure of the facts". Therein it is further held that "the relationship between the lawyer and his client is highly fiduciary in its nature and of a very delicate, exacting, and confidential character, requiring a high degree of fidelity and good faith .... The lawyer when entrusted with brief is expected to follow the norms of professional ethics and try to protect interest of his client..... " It is better to remember the words of Justice Krishna Iyer before reaching to any conclusion. "Law is no trade, brief no merchandise and so the level that commercial competition should not vulgurise the legal profession" (AIR 1976 SC 242).

In the instant case, the Counsel is justifying his action saying that the defendant is supporting the case of the appellant. That is not a sufficient reason for his doings. As stated earlier, interest of clients may vary during the pendency of the case. Moreover R. 33 forbids the lawyer from appearing for both sides. In short it is not justifiable to accept the brief of both sides even if the interests of the parties are identical.

"Reference" An Odius Procedure

(By R.P. Remesan. Advocate, Kannur)

S.10(1) of the Industrial Dispute Act reads, "Where the appropriate Government is of opinion that any industrial dispute exists is apprehended, it may at any time, by order in writing;

a) refer the dispute to a Board for promoting a settlement thereof; or

b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or

c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the second Schedule, to a labour Court for adjudication; or

d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:

This section holds an important role in the field of labour dispute. In other words it is the backbone of the I.D Act. S.10(1) denotes the method of inception of a case (dispute) before the court/Tribunal for getting it solved. Unlike other civil dispute the third party (Government) takes an important role in the scene of labour disputes. As per this section where the appropriate Govt. is of opinion that an industrial dispute exists or is apprehended the Govt., can refer the dispute for adjudication, Even though the wording is so the Govt., cannot decide the dispute by itself (1991 SCCL & S 1125). Court verdicts state that to make a reference under S.10(1) is an administrative function and the Govt. cannot go into the merit of the dispute (Western India Match Co. v. The Workmen 1970 II LLJ 256). In a case Govt., decided the matter by itself and refused to refer the mailer for adjudication. So the Supreme Court interfered (1991 SCCL & S.1125). Similar case was also reported in 1989 Lab IC 494 also. In other case the Court held that the power conferred on the Govt, by this section can be exercised only when there is an existing or apprehended industrial dispute (Shambunath Goyal v. Bank of Baroda 1978 I LLJ SC). According to Bombay High Court the Govt., can justifiably refuse to refer the dispute if the dispute is not between the employer and its workmen (A. Sunderambal v. Govt, of India 1983 II LLJ 491). On reasonable occasion the Court refuses to interfere in the matter (1995 LLJ (I) 384).

In brief the section assigned the Govt., certain discretionary powers and it is implicit that the opinion must be an honest one.

Now let us see the object of the I.D. Act 1947.

I.D. Act, 1947 is the successor of Trade Disputes Act 1929. Trade Disputes Act 1929 was enriched because it provides conciliation machinery which was absent in the Trade Dispute Act 1920. Subsequently, during the World War II Govt. of India promulgated the Defence of India Rules. R.81A of the said rules gave powers to the Govt., to intervene in industrial dispute and to provide speedy remedies for industrial dispute by referring them for conciliation. The present Act (Act No.14 of 1947) embodied the principles of Rule 81A of the Defence of India Rules and Trade Disputes Act, 1929.

L.I.C. of India v. D.V. Bahadur (1980 LIC 1218) the Apex Court held that "the Industrial Disputes Act is a benign measure which seeks to pre-empt industrial tensions, provides the mechanics of dispute-resolutions and sets up the necessary infracture so that the energies of partners in reproduction may not be dissipated in counter-productive battles and assurance of industrial justice may create climate of good will."

The I.D. Act shows that it aims at the settlement of all industrial disputes arising between the capital and labour by peaceful methods and through the machinery of conciliation (as a speedy remedy).

It is unnecessary to explain further, to know the spirit of legislature. It was the outcome of the thought to avoid collusion and promote the tempo of production.

The above narrated analysis often brings our attention to the present state of affair prevalent in the industrial sector. In my opinion S.10(1) of the I.D. Act brought protraction of dispute and eliminated the change of quicker determination of disputes.

Whenever a dispute comes before the conciliation officer, at the outset, he shall address both parties to attend the conciliation meeting. If any one of the party is absent on that day he may sent another notice for another day. If he is absent on that day also, a further notice also be issued. Conciliation may be adjourned on application of the party. It may take a few months altogether. If both parties are present conciliation may take place. If it does not succeed further conciliation may be held and it may take another few months. We can be assumed how far the red-tape (bureaucracy) is helpful for the speedy remedy although the S. 12(6) of ID Act provides only 14 days.

Further more a failure report forwarded to the Govt., will exhaust further span of time. As it was held the procedure before the Govt., in view of the section 10(1) of ID Act is only administrative in character. The other side of the coin denotes bureaucratic exposition. Consumption of time will grace the entire procedure.

The story does not end up here. In the way of industrial adjudication pre-conceived notions or tyranny of dogmas may preponderate. As a result it will be a death i n the womb. The dispute will not come up for adjudication. The case reported in 1991 SCC (L&S) 1125 is a case for example;

Normally an adjudication procedure (from conciliation officer to the Labour Court/Tribunal) may take 6 months to 1 year. A bewildered workman cannot bear such ostensible length of time for a decision from the Court. That is why they are after counterproductive battles.

The delay caused on the way to the reference procedure is unwanted, unwarranted and avoidable. The role of the third party (Govt.) in the arena of industrial dispute will bring skepticism. If a crime is committed the role of the Govt., is very clear since the maintenance of law and order is on their shoulder. In a civil matter even if it is connected with the landed property, Govt., will not interfere on any stage of the case. Govt., shows no interest in these matters. To be precise, the role taken by the Govt., in the scene of industrial adjudication is quite unnecessary.

The Section 17 is corollary to S.10(1). As per the S.17 the award should be published in such manner as the Govt., thinks fit. So the awards need to be forwarded to the Govt. without pronouncing it in the open court. This kind of procedure is also unknown to other branches of law. The award comes into effect on the expiry of 30 days from the date of publication. It may take another span of time up to 6 months to get it published even though the Act allows 30 days only. In a very recent case Govt., had taken 7 years to refer the matter for adjudication. It is reported in 1995 LLJ 958 P&H.

Let us see what will happen if the S.10(1) is substituted with equal provision of order IV Rule I of CP Code. In such a situation an employer or an employee can file a petition or statement as the case may be before the proper forum and the Court or Tribunal upon receiving the said petition or statement may proceed further in accordance with the provisions of the ID Act.

The purpose of publication of award in the Gazettes by abusing precious time and public revenue is also susceptible to incredibility over the interest of the Govt. In short it is a time-worn procedure about hence it demands legislative interference by inserting a provision enabling direct filing of disputes by the employees and employers. In such a situation it is immaterial whether S.10(1) of ID Act is still in force or not.

"Bundhu" Mukti or Mochan: A Daniel Come to Judgment

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

Daniel came to judgment on the 28th July, 1997 when a Kerala High Court Full Bench boldly declared illegal bundhs called by politicians and trade unions, holding the helpless and hopeless public to ransom. The tumultuous welcome given by the public to the judgment delivered by Justice P.K. Balasubramanyan speaking for himself and Justices Balakrishnan and Koshy is indicative of, if any indication was called for at all, the sign of relief of the public who were utterly helpless in the face of the threats and intimidations of these self-seaking "popular leaders" and their unruly following. The organised orgy of violence and vendalism let loose at the instance or insistance of those so called social, labour and political leaders has been depriving the common man of this country of this fundamental right to travel and to persue his avocation. Quite expectedly, only the politicians and persons who indulge in goondaism masquerading as trade unionism have grided up their loins against the welcome verdict of the Kerala High Court.

I am reminded of Frank Anthony's words uttered in Parliament on the 3rd of May, 1973 soon after the supersession of three senior Judges of the Supreme Court by the Indira Government. Strongly denigrating the hole-end corner, unprincipled political coup perpetrated against the Supreme Court by the Indira Government, Anthony said, "Today, persons who are committed to the murder of democracy are mouthing slogans about democracy. The first postulate of democracy is the rule of law and the first postulate of the rule of law is an independent judiciary. To whom did the citizen and the minorities look for protection against the lawlessness of Government? An independent judiciary". (Quoted in "Crisis In Indian Judiciary" K.S. Hegde, Sindhu Publication, Bombay (1973) P3).

The Bench hit the nail on the head when it said, "No political party or organisation can claim that it is entitled to paralyse the industry and commerce of the entire State or Nation and is entitled to prevent the citizens not in sympathy with its view point, from exercising their fundamental rights from performing their duties for their own benefit or for the benefit of the State or the Nation. Such a claim would be unreasonable and could not be accepted as a legitimate exercise of the fundamental right by political party or those comprising it". Equally unexceptionable is the observation of the Bench, rejecting the Advocate General's untenable contention to the contra, that as the organised bodies or associations or registered political parties, by their out of calling and holding bundhs. trample upon the rights of the citizens of the country, protected by the Constitution, the High Court has sufficient jurisdiction to declare that the calling of a bundh and the holding of it, is unconstitutional.

I believe the trinity of the Kerala High Bench, which rendered this landmark decision, might have had in its mind the words of Chief Justice Warren in Trop v. Dulles (356 U.S. 86 at 103-104 (1958)) "we are oath-bound to defend the Constitution.....The Judiciary has the duty of implementing the constitutional safeguards that protect individual right of citizenship, the safeguards of the Constitution should be examined with special diligence..... When it appears that an Act of Congress conflicts with one of the provisions, we have no choice but to enforce the paramount comments of the Constitution. We are sworn to do no less. We cannot push back the limits of the Constitution merely to accommodate challenged legislation. We must apply those limits as the Constitution prescribes them.... The ordeal of judgment cannot be shirked".

The legal mercim "Salu Populi Supreme Lex" comprehends that regard for public welfare is the highest law. That this is the predominant constitutional purpose has been recognised by the Full Bench which bore in mind that the ultimate sovereignity in a democracy vests in the people.

In fact, it is lack of legislative thinking and Executive apathy coupled with exploitation of the common man by the criminal-political nexus that impelled the judiciary into activism. The innovative strategy of public interest litigation and invocation of epistolary jurisdiction gave a fillip to this process. Protection of the weaker sections like inept destitutes, exploited workers and consumers, prisoners and mental patients and women and child labour was taken up by the judiciary with a missionary zeal. The court showed that the Constitution is meant not only for the affluent and the influential, but also "for the butcher, the baker and the candlestick maker."

The notion that the judiciary, because it is not elected, is not the voice of the people is a misconception. The Constitution is the fundamental law of the land which establishes the judiciary and empowers it to eliminate acts of Legislatives and actions of the Executive as unconstitutional if these infringe the guaranteed rights of citizens. The courts are the sentinel on the qui vive as Chief Justice Patanjali Sastri declared in V.G. Row (1952) and they do not tilt at non-existing windmills of Executive authority in a crusaders or arotic spirit, but are plainly discharging a function cast on them by the Constitution.

It is, of course, true that Alexis de Tocqueville said, "A revolt of the judiciary is more dangerous to Government than any other, even a military revolt. Now and then it uses the military to supress disorder, but it defends itself everyday by means of the Courts. If the orders and judgments of courts are judicial revolt against the Government and in the interests of the people, so be it. Dangerous it is, as de Tocqueville said, to Government But the point is that justice is being meted out to the common man and the laws are being construed as judicial swords against wrong doers, who hitherto were kept as a zone of immunity. There volt is not extra-constitutional but wholly constitutional and legal. The irony is that while "People representatives" are callously indifferent, and cavalier in response to public woes, the robed fraternity believed to be ivory tower inhabitant truly act pro bono publico to the chargien of the former.

Of course, the judiciary has to be circumspect and self-disciplined and is not expected to govern the country or enact laws, but in so far as it compels or impels the Legislature and the Executive to discharge their constitutional obligations in the present case, judicial activisms is unexceptionable and praiseworthy. No society needing a justice system can ask for more a judiciary not made to measure, but one that tenaciously, purposefully and even fiercely upholds and implements the Constitution and the laws. To qualify as a New Dimension of Justice, the Bundhu decision is not a mere ad hoc decision, a railway ticket valid only for a single journey; it adopted the route of purposive construction of the existing law on the subject and of the Constitution as a living and vibrant orgasm capable of catering to current societal needs. It is worth recalling - it appears it was not brought to the notice of, the Kerala High Court Bench - what three decades ago a five Judges Bench of the Calcutta High Court declared in the landmark decision on gherao, another venal and overzealous weapon employed by the organised workers. The Calcutta Court, boldly declared that gherao invariably involves the commission of criminal offences resulting in wrongful confinement of the encircled persons and violation of the laws of the land. Interpreting S. 17 and 18 of the Trade Unions Act (1926), the Bench said 'Ss. 17 & 18 of the Indian Trade Unions Act grant certain exemptions to members of trade union, but there is no exemption against either an agreement to commit an offence of intimedation, molestation or violence where they amount to an offence. Members of a trade union may resort to peaceful strike, that is to say, cessation of work with the common object of enforcing their claims. A concerted movement by workmen by garnering together either outside the industrial establishment or inside within the working hours is permissible, when it is peaceful and does not violate the provision of law. But, when such a gathering is unlawful or commits an offence, ihcn the exemption is lost. Thus, where it results in unlawful confinement of persons, criminal trespass or where it becomes violent and indulges in criminal force or criminal assault or mischief to person or property or molestation or intimidation the exemption can no longer be claimed." (Jay Engineering Works Ltd. & Ors. v. State of West Bengal and Ors. AIR 1968 Cal. 407 (Spl. Bench))

It is heartening indeed that the Kerala High Court did not allow timorousness to be generated in its mind leading to an attitude of undue deference to the claim of politicians who far too often indulge in the talismanic invocation of the 'mantra' of "People's interests". The hypocracy and humbug of the political charlators and trade union backaners have been rightly exposal by the Court.

No Flattery, No Flak

(A Law-learner's lens-look at Two Recent Judgments of the Kerala High Court)

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

I should, at the very outset, state that this article is not meant to be an exercise in flattery of a Judge and his judgment; nor is it intended to be a flak on another Judge or his judgment. It is, essentially, an attempt at an incisive look at two recent judgments of the Kerala High Court by an innocuous learner of law. These are the decisions in Principal, S.N. College, v. Vice Chancellor (1996 (1) KLJ 598) by Justice K.S. RadhakrishnanandChandramohanan v. S. I. of Police (1996 (1) KLT 776) by Justice P. V. Narayanan Nambiar.

Justice Radhakrishnan's bold views send a whiff of fresh air in an area suffocated and surcharged with an age-old philosophy of judicial non-intervention. In Principal, S.N College v. V Chancellor (1996 (1) KLJ 598) Justice K.S. Radhakrishnan, who, during his short tenure in the Bench, has displayed an equanimity of temperament and a balanced approach - qualities that are the attributes of a good judge - has given an expensive connotation and extensive content to Art.21 of the Constitution of India. Though right to education is not stated expressly as a fundamental right in the Constitution, the learned Judge observed, it is implicit and flows from the right to life guaranteed in Art.21 of Constitution of India. Right to education has been treated as of fundamental importance and it has fundamental significance to the life of individuals and the society at large. Arts.41, 45 and 46 of the Constitution of India show the importance attached to it by the founding fathers of the Constitution. Therefore, the learned Judge emphasised the right to get education in schools and colleges uninterrupted by politicians or external influence, or forces is also a right which flows from Art.21, the right to life and personal liberty. Right to life is a compendious right to all other rights which the Court must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. According to the Judge, and rightly too, the college or the school is the temple for academic excellence and not for imposing political ideology on others. The Judge, who relied on the decisions of the Supreme Court in Unnikrishnan (AIR 1993 SC 2178) and Mohini Jain (AIR 1992 SC 1858) and considered the question of freeing academic campuses from political pollution, rightly upheld the discretion and freedom of action of the Principal and the teachers and quashed the impugned orders issued by the Syndicate and the Vice-Chancellor and directed the police to give adequate police protection to the former for freely and peacefully running the institution. It is refreshing to see, and realistic for the Judge to act on the lines well-laid by the Justice Varma and Justice Kuldip Singh Benches of the Supreme Court of India.

One of the distressing symptoms of the current political situation is the increasing frequency with which every Tom, Dick and Harry, who poses as the self-appointed guardian of the under-privileged, is beginning to assail not only the efficacy, but also the bonafides of our judicial system. The respect and regard which a country and its people have for their judiciary and judicial system is always the touch-stone of the genuineness of their democracy.

The disappearance of zones of immunity to law is at the core of the expansion of law; and though we can treat this or that fact or figure as an indicator, at bottom, quantitative measurement does not easily capture what has occurred. The shrinking zone of authority is remarkably similar to the shrinking zone of immunity to law. Law and social policy can guarantee or try to guarantee basic decencies of life.

Justice Radhakrishnan has shown sophistication about abuses of power by organised politicians and politicised sections of society and the threat to academic freedom posed by them. The sensitive treatment to the subject given by Justice Radhakrishnan provides a yardstick to measure the approach and outlook of the Judge in our era of anesthetizing formulaic Constitution. Such a deep inquiry into the social conditions, naturally offered a way to apprehend and comprehend the dangers lurking behind the entry of politicians and politics into academic campuses. The Judge has not created a shadowy concept of academic freedom, but with a deft sleight of hand enunciated a concept with real substance and form, and called the bluff of politics masquerading as a constitutional right. Perhaps, the Judge's judicial philosophy is not truly value-neutral, but the Judge's view enunciated in the judgment under comment is a liberal view of the constitution as a dynamic document evolving in changing times. Justice Radhakrishnan has found the path for conceptualising academic freedom. May the learned Judge carry on his crusade with success:

I am sorry to say that, in sharp contrast to this, Justice Narayanan Nambiar's decision in Chandramohanan v. S. I. of Police and another reported in 1996 (1) KLT 766 leaves much to be desired, and falls short of one's expectations. In dealing with an offence charged under S.3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Justice Narayanan Nambiar adopted a highly hypertechnical view of the law and virtually acquitted the accused. In that case, the modesty of a tribal girl, whose parents belonged to Malai-Aryan Tribal community, but converted into Christianity, was outraged by the petitioner Chandramohanan and a case was registered by the Pattambi Police and after investigation, a charge-sheet was filed before the Sessions Court, Palakkad. The contention of the accused, who approached the High Court for quashing the proceedings in the Sessions Court where he stood charged with commission of offences under section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and under S.509 of the IPC, was that the victim was to be treated as a Christian by birth as she was born after her parents, who were Mala-Aryans, converted into Christianity. It was further contended that therefore the Act does not apply to her and that hence no offence was committed under the Act. Without batting an eyelid, the Court accepted this hypertechnical argument put forward by the counsel for the accused and quashed the proceedings in exercise of its inherent criminal jurisdiction. Not in consonance with precedents, including those laid down by himself, Justice Nambiar exercised inherent jurisdiction of Court under S.482 of the Crl. PC, which is to be applied rarely and only when the High Court is satisfied that there is gross abuse of the processes of court. Justice Nambiar adopted a strict constructionist approach while interpreting the SC and ST (POA) Act and placed reliance of the decision of the Kerala High Court in Chinnamma (1990 (1) KLT 62) delivered in a different context altogether and for a different purpose. The observations and conclusions in Chinnamma (in the above case) with respect are totally different and distinguishable from the present case. It was an unacceptable interpretation employed by the Judge as a device to express his attitude about the offence. Neither rhetorical nor sub-silentio summation of experience or expertise will be compatible with the premises of the logic adopted by Justice Nambiar. With respect, it is highly conservative for a Judge to adopt such a strict constructionist approach to a benevolent statute meant for ameliorating the conditions of the oppressed and the depressed classes and to hold firmly to stare decisis and other principles that tend to favour the status quo and those established interests that benefit from the status quo.

At that time when hum an rights activists are adopting an agenda far beyond a narrow focus to combat even State-sponsored racial oppression, torture and massacre worldwide campaign for civil liberties and liberation of the oppressed and the depressed classes, it is only meet and proper for people to expect the judiciary to stir out of the stupor of Victorian cozy comfort and gavanise into judicial activism.

Advocates of victims of oppression are developing new and effective protection strategies and add a unique piece to the incomplete puzzle of world politics. An exclusive legal elite is emerging in the international horizon to function as a transactional public interest group, which will contribute to a more democratic world order and universal human rights.

Let me conclude with the hope that the higher judiciary in the country will rise up to expectations and respond positively and purposefully to the zeitgeist of the times.

Janus-Faced Judiciary

(By Kauser Edappagoth, Advocate, Kannur)

The fugitive business tycoon Rajan Pillai's sad demise in judicial custody and the grant of anticipatory bail to Tandoor murder case fame Sushil Sharma have once again put the judiciary in the dock. Not quite long ago we witnessed the serious corruption charges against Justice Ramaswami. Recently the Chief Justice of Bombay High Court, Justice M.M. Bhattacharji had to resign his post on account of the allegation of having received a royalty of 80,000 Dollars for his controversial book tided "Muslim Law and the Constitution" from Robok Publications of London. Those corruption charges against judges, who are indispensable servants of society, resulted in precipitant diminution of public faith in the judiciary, which is the soul of Indian democratic set-up. The public disenchantment with judiciary has been further aggravated and the system of administration of justice in our country has been brought to ridicule by the recent events concerning Rajan Pillai and Sushil Sharma.

On the one hand, Sushil Sharma was granted anticipatory bail ignoring all the legal and factual formalities to be complied with before granting such bail despite the prima facie proof of his active involvement in the brutal murder of Naina Salmi and on the other hand, Rajan Pillai, who was arrested only for an enquiry for extradition, was put to death on account of the denial of the primary medical treatment to him. Though the facts of the cases concerning Sharma and Pillai are totally dissimilar, there is an amount of similarity in the manner in which the cases were dealt with by the courts of the land.

It will not be unfair here to comment that the order of the Principal Sessions Judge granting anticipatory bail to Sushil Sharma was illegal, without jurisdiction and against the principle of natural justice as the Madras High Court itself has observed while cancelling the anticipatory bail. The power under S.438 of the Criminal Procedure Code, which deals with the granting of the anticipatory bail, has to be exercised by the court sparingly and only in exceptional circumstances is a settled legal principle. The intention of the law-makers in introducing S.438 is to relieve a person from unnecessary apprehension or disgrace of being detained in judicial custody in cases where he may have been implicated falsely. Various notable judicial pronouncements on the subject prescribe certain tests to be applied by the court while considering the application for anticipatory bail. Nature and seriousness of the prosecution case, the gravity of the punishment which the convict will entail, the character and behaviour and standard of the accused, the possibility of the accused misusing the liberty if released by hampering the effective investigation of the case, etc. are the most important factors and circumstances to be kept in mind by the court while granting anticipatory bail. Taking into consideration the facts and circumstances of the Naina Sahini murder case, can the Hon. Principal Sessions Judge of Madras be said to have taken into account these factors and circumstances for a moment during his hasty decision to grant anticipatory bail to a gruesome murderer of the country? The S.438 of the Criminal Procedure Code requires the court to make an order consistently to indicate the reason as to why the court is inclined to make an order of bail in anticipation of the arrest of such a person. The reason given by the Principal Sessions Judge was it is well within the law and under the discretion of the Judge hearing the application.  It seems that the Hon’ble Judge failed to understand the well-settled legal principle that the judicial discretion should be exercised judiciously. While exercising the so called discretion hastily instead of judiciously the Hon'ble Judge has conveniently overlooked the fictitious local address given only for invoking the jurisdiction of the court in which he was presiding over and various rulings of the different High Courts on the question of territorial jurisdiction for the granting of anticipatory bail. In a land-mark judgment on the point Patna High Court (AIR 1986 Pat. 194 (205)) ruled that "Section 438 does not permit the granting of anticipatory bail by any High Court or Court of Session within the country where the accused may choose to apprehend arrest. Such a power vests only with courts of session or the High Court having jurisdiction over the local of commission of offence of which person is accused. The question of residence of the accused is irrelevant in such cases". Further, the Judge acted in a very casual manner as if he had not come across the main stream press reports regarding the murder of Naina Sahini, the involvement of Sharma into it, the announcement of a reward of Rupees One lakh to his head by the Delhi Police, etc. The gravity of the injustice and illegality committed by the Principal Sessions Judge is evident from the conduct of the Division Bench of Madras High Court in taking suo motu action in suspending the anticipatory bail based on a telegram message and from the strictures made in the order.

Personal liberty is precious and the same having been guaranteed as a fundamental right in the constitution the courts have to zealously guard it. Raj an Pillai's pathetic death like a street dog for want of proper medical treatment is a typical example of the failure of our judicial system to safeguard the 'right to life' of a citizen. The plea of Raj an Pillai that he be examined by a doctor was summarily rejected by the Magistrate of the specially Designated Extradition court in Delhi holding that there is nothing on record to suggest that Pillai ever underwent any indoor treatment or surgery for the disease concerned any time after 1992. But the autopsy conducted in his body revealed that he was suffering from acute cirrhosis and his detail was caused by complications in the filling up of blood in the veins. When Rajan Pillai was produced before the magistrate immediately after the arrest, he told the court that he was not well and was suffering from 'internal haemorrhage', which is a life-threatening condition. An application was also filed by Pillai's counsel seeking his medical examination. To support the contention he had produced before the court a two month old prescription given by 'Escorts Institute', diagnosing his ailment as cirrhosis. The Hon'ble Magistrate should have at least asked the doctors of the Thihar Jail to examine Rajan Pillai to find out the bona fides of his petition before rejecting the same. It is ironical to note that while ailing Rajan Pillai who was arrested only for an enquiry for extradition was denied medical treatment and was offered only 'B' class cell with no fans, water or pillows, international criminals like Charles Shobraj were provided VIP facilities in the Jail.

The tale of Rajan Pillai and Sushil Sharma has undoubtedly brought disgrace and shame to the entire judicial service of India. Those incidents would remain as a black mark on the Indian Judicial-History.