A Judicial Performance Commission-Need of the Time

(By V.G. Govindan Nair Advocate, Trivandrum)

Recent developments of conflict and divisions in the Bench and the Bar deserves serious thought. In the present set up of Judiciary-Bench and the Bar in their independence requires protection of law and they have to be kept high in the respective fields. Judicial discipline and the independence of the Bar are to be kept up for the sustenance of rule of law.

If a Judge errs in law it can be corrected in appeal, but ultimately if there is an error it is to be reviewed by the Judges when they realise that there is an error. If a Judge acts in an in judicial manner there is often much less that an aggrieved person can do, occasionally misconduct and misbehaviour are alleged against Judges. There may be a few cases as Mr. Justice Jackson of the U.S. Supreme Court observed in 1952 that "men who make their way to the Bench sometimes exhibit vanity, irascibility, narrowness, arrogance and weakness to which human flesh is heir". It would be amazing or rather alarming, if some of the eminent legal minds that constitute the judicial system act injudiciously. Certain temperaments of the persons can be styled to be 'Judges disease' in many ways because of bad temperament and the injudicious act. A Judge may grow sometimes unfit for his office. It is pertinent to consider what sort of sanction exists now in relation to Judges who are unable to act in a judicial manner. In England the judicial performance depends on judicial self restraint and self control. In case of failure of these qualities or when litigants believe that the qualities have failed, there is need for an independent forum in which complaint about judicial performance can be considered.

For the misconduct, a Judge can be removed, but it is a difficult process of law. The nature of misconduct may be simple or complex which may spoil the whole system. Hence, it requires a serious thought to have a forum where the conduct of the Judge can be examined. In many parts of the world individuals who are dis-satisfied with judicial conduct have a right of access to Judicial Performance Commission. The majority of American States have such mechanisms. The relevant authorities have been conferred with power to investigate whether the Judge has acted in any way other than the judicial manner. Certain personal misconduct like offensive overtones and of a temperament unsuited for judicial office and refusal to listen to the arguments of lawyers and other conduct unsuited for the Judge can be considered by Judicial Performance Commission to report to proper authorities. But at the same time, it should not be misused. The legal system would be benefited by an introduction of Judicial Performance Commission to carry out such functions. The existing mechanism for considering complaints of in judicial behaviour on the Bench are plainly inadequate. Therefore, a new look out is to be made for the betterment of the legal system in the country especially when there are reports of conflicts and divisions in die Supreme Court Bar on the conduct of members of the Bench. This is the relevant time for the people to think of constituting a Judicial Performance Commission for the purpose. It is true that the judicial independence requires a large measure of judicial immunity from sanctions in injudicious conduct. The rationale in the present immunity of Judges from legal sanctions for their conduct has been explained in the leading cases. Mr. Justice Crompton dismissed a case by stating that there is no cause of action on which a claim brought against his colleagues Mr. Justice Blackburn by a dis-satisfied litigant. It is further said that it is a principle of our law that no action will lie against a Judge for the judicial act though it is alleged to have been done maliciously and corruptly. This rule exists for the benefit of the Judges and was established to secure the independence of the Judges and prevent them from being harassed by vexatious actions. But Lord Denning opined that (he judicial immunity from actions for damages exists not because the Judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear.

Judicial independence was not designed as and should not be allowed to become, a shield for judicial misbehaviour or incompetence or a barrier of examinations of complaints about injudicious conduct on political criteria. A man who has an arguable case that a Judge has acted corruptly or maliciously to his detriment should have no cause of action against the Judge is quite indefensible. Can judicial independence be a reason in principle for rejecting a Judicial Performance Commission. It would be better in the proper assessment to have a Judicial Performance Commission by experts to consider the injudicious conduct. It will be a need for the time and inevitable for the survival of the rule of law. The reputation of the judiciary can only be benefited by creation of a Judicial Performance Commission. The powers of Judicial Performance Commissionshouldbelimitedtoconsideringcomplaintsofinjudiciousconducts. Itmust be prohibited from investigating whether Judge reached the correct decision on a point of law. It is for the appellate courts to analyse the decision of the Judge. But where the Judge has clearly erred in law the Commission may be entitled to consider a complaint of judicial incompetence. In a way the Judges can be screened on their competency and incompetency can be shut out for improving the legal system and to see the justice is administered in the Country in a just manner.

'King can do no wrong' principle is no longer a law in India. The constitution of the Judicial Performance Commission would also reconcile the preservation of judicial immunity from improper interference. Out of court conduct of Judges and inside behaviour and the disposal otherwise than in a judicial manner and the conduct of unsuitability on inefficiency will be a subject of consideration of the Judicial Performance Commission. No doubt, considerable discussion is required to determine the composition of a judicial performance commission, the procedure it has to adopt and the matter with which it will be concerned. It is the need of the time or high time to have a Judicial Performance Commission for the country in view of the various conflicts and divisions cropped up among the members of the Bench and the Bar. State is liable for the wrong committed by the judicial wing of the State. In such a development in the legal system it is high time to have the mechanism for the Judicial Performance Commission and to screen the Judges on efficiency for betterment of the legal system in the country. Ultimately the findings must be reasoned, public, transparent, objective so as to make public convinced that justice is the only motto and "how high so ever you be law is above you".

A Judgment to be Reviewed

(By Advocate Thampan Thomas, Ex. M.P.)

On 11th December, 1995 a three Member Bench of the Hon'ble Supreme Court, consisting of Justice J.S. Verma, N.P. Singh and K. Venkataswami pronounced their Judgment in a batch of Election Appeal Cases filed by Dr. Ramesh Yashwant Prabhoo, Bal Thackeray, Manohar Joshi and Suryakant Yenkat Rao Mahadhik and others. The Bombay High Court in Election Petitions set aside the election of the appellants on the finding that they indulged in corrupt practices under Section 123(3) and 3(A) of the Representation of the People Act, 1951. The said sections forbids canvassing votes on the ground of religion or appeal to refrain from voting for any other candidates on the ground of religion. Section 3(A) the expression used is the promotion or attempt to promote the feeling of enmity or hatred on the ground of religion, a corrupt practice.

The allegation in these election petitions were that, in November and December 1987 during the election campaign Sri. Bal Thackkeray in the presence of the candidates said, "We have come with the ideology of Hinduism. Shiv Sena will implement this ideology. Though this country belongs to Hindus, Ram and Krishna are insulted. (They) valued the Muslim votes more than your votes, we do not want the Muslim votes. A snake like Shahabhuddin is sitting in Janatha Party, man like Nihal Ahmed is also in Janatha Party. So the residents of Vile Parle should bury this party (Janatha Party)". He also said in his meetings, "Hinduism will triumph in this election and we must become Hon'ble recipients of this victory to ward off the danger on Hinduism. You will find Hindu temples underneath if all the mosques are dug out. Anybody who stands against the Hindus should be showed or worshiped with shoes. A candidate by name Prabhoo should be led to victory in the name of religion." The dias where Bal Thackerary and candidates were sitting a banner which read, "Gourse Kahoo Hum Hindu Hai", was also hanging.

The allegation against Manohar Joshi, the present Chief Minister of Maharashtra is that in the year 1990 during his election campaign he also made appeal on the basis of religion to canvass vote. It came in evidence that he declared in his election meetings at Prabhavathi and Sivaji Park that, "First Hindutva State will be established in Maharashtra". In the case of Suryakanth Venkatarao Mahadik the allegation is on 11-12-1990, while speaking in Sarweshwar Mandir in a Hindu congregation he demanded vote in his favour on the ground of religion. The Hon'ble Supreme Court found that all allegations were proved. They held that barring Manohar Joshi all other candidates have violated the provisions 123 (3) and (3) a of the R.P. Act. The decision of the Bombay High Court except that of Mr. Joshi were upheld.

Justice J.S. Verma who wrote the judgment for and on behalf of the Bench elaborately went into the question in an irrelevant manner and decided that mentioning of Hindutva is not a violation 123(3) or 3(A) of R.P. Act, and that it will not be a corrupt practice. He opted to give definition to Hindutva in paragraph 40 of the judgment which reads, "Ordinarily, Hindutva is understood as a way of life or a state of mind and it is not to be equated with, or understood as religious Hindu fundamentalism." The word 'Hindutva' is used and understood as a synonym of 'Indianisation' .i.e., development of uniform culture by obliterating the differences between all the cultures by obliterating the differences between all the cultures co-existing in the country.

Justice Verma gives his reasoning for this. "It cannot be doubted that an election speech made in conformity with the fundamental right to freedom of religion guaranteed under Articles 25 to 30 of the Constitution, cannot be treated as anti-secular to be prohibited by sub-section (3) of Section 123, unless it falls within the narrow net of the prohibition indicated earlier. It is obvious mat a speech referring to religion during election campaign with a secular stance in conformity with a fundamental right to freedom of religion can be made Section (3), if it does not contain an appeal, to vote for any candidate because of his religion or to refrain from voting for any candidate because of his religion. When it is said that politics and religion do not mix, it obviously does not mean that even such permissible political speeches are forbidden. This is the meaning and true scope of sub-section (3) of section 123 of the Act." It comes to the conclusion that, no precise meaning can be ascribed to the terms/Hindu', 'Hindutva' and 'Hinduism', and* no meaning in the abstract can confine it to the narrow limits of religion alone, excluding the content of Indian culture and heritage. It is also indicated that the term 'Hindutva' is related more to the way of life of the people in the sub-continent. It is difficult to appreciate how in the face of these decisions the term 'Hindutva or Hinduism' per se, in the abstract, can be assumed to mean and be equated with narrow fundamentalist Hindu religious bigotry, or be construed to fall within the prohibition in sub-sections (3) and/ or 3(a) of Section 123 of the R.P. Act.

The learned Judge had placed reliance on a Constitution Bench decision in 1966 in the case of Sasthri Yagnapurushadji and Others v. Muldas Bhundardas Vaishya and another. There direct question was relating to definition to Hinduism and it is said the word Hindu derived from the river Sindhu otherwise known as Indus which flows from the Punjab. Quoting Murder Williams from his book 'Hinduism', it is narrated that part of great Aryan race, which immigrated from Central Asia, through the mountain passes into India, settled fires in the districts near the river Sindu. The Persians pronounced this word 'Hindu' and named their Aryan Brethren Hindus. The Encyclopedia of Religion and Ethics has described 'Hinduism' as the title applied to that form of religion which prevails among the vast majority of the present population of the Indian Empire. To define 'Hinduism' Dr. Radhakrishnan's quotation of similar value also relied.

Quoting some earlier cases of the Supreme Court Justice Verma came to the conclusion that, 'Hindutva' is not synonym for Hindu religion but a synonym for Indianisation. He also placed reliance on Maulana Wahiduddin Khan, "The strategy worked out to solve the minorities problem was, although differently worded that of Hindutva or Indianisation. This strategy, briefly stated, aims at developing a uniform culture by obliterating the differences between all of the cultures co-existing in the country. This was felt to be the way to communal harmony and national unity. It was thought that this would put an end once and for all to the minorities problem." (In Indian Muslims - The Need For A Positive Outlook 1994).

In fact, Maulana Wahiduddin Khan, wrote this Article in the wake of Babari Mazjid problems. The fear psycosis developed in the mind of a Muslim is quite apparent in the said statement. Moreover he is believed to be a person who attends Sangh Parivar meetings. Justice Verma is context iliseingirrelevant matters in an irrelevant manner.

The unprecedent judgment of the three Member Bench of the Supreme Court presided over by Justice Verma has invited severe criticisms from eminent jurist and public men. Many eyebrows have been raised against the judgment. The eminent jurist Palkkivala requested the Chief Justice of India to constitute a 9 or 11 Member Bench to review the decision. Noted lawyers of Bombay and Delhi have criticised the judgment as-self contradictory in character, beyond his competence, and negation of basic jurisprudence. It is wondered, why the learned Judge had gone in details to define the 'Hindutva' in a case where it is not necessary. The points for his' decision mere straight available in the case itself. To give an obiter dicta of this nature is quite unnecessary in the circumstances of the case. The question of-defining'/Hindutiva' or 'Hinduism' is not directly in question in this case. Therefore, it is apparent that Justice has violated the basic principles of jurisprudence.

In these judgments, what Justice Verma has overlooked is an important decision of the Constitutional Bench of the Supreme Court in S.R. Bommai case reported in 1994 AIR SC Page 1919. This case is directly applicable for defining secularism meant in the Preamble of the Constitution. The Bench, which gave the decision consist of Justice S. Ratnavel Pandian, A.M. Ahamdi, Kuldip Singh, J.S. Verma, P.B. Sawant, K. Ramaswamy, S.C. Agarwal, Yogeshwar Dayal and B.P. Jeevan Reddy J.J. Justice J.S. Verma, himself is a party to that decision. The Bench of this case related to the dismissal of the State Government under Article 356 in the wake of Ramajanmabhoomi problem. The eminent Judges of the Supreme Court concurred all most all the findings and the law on the subject of secularism is well laid down. Concurring with the judgment all most all the Judges have written their own views in these, cases. It was held, "The preamble and Arts.25, 26, 29, 30, 44, 51A 14, 15, 16 by implication prohibit the establishment of a theocratic state and prevent the State either identifying itself with or favouring any particular religion or religious sect or denomination. The State is enjoyed to accord equal treatment to all religious sects and denominations. Under our Constitution whatever be the attitude of the State towards the religion, religious sects and functions, religion cannot be mixed with any secular activity of the State. In fact, the encroachment of religion into secular activities is strictly prohibited. The State's tolerance of religion or religions does not make it either a religious or a theocratic State."- Justice Kuldip Singh and Justice Ratnavel Pandian concurred with it. Justice Sawant further held. "Under our Constitution, the encroachment of religion into secular activities is strictly prohibited. The State's tolerance of religion or religions does not make it either a religious or a theocratic State. When the State allows citizens to practise and profess their religions, it does not either explicitly or implicitly allow them to introduce religion into non-religious and secular activities of the State. The freedom and tolerance of religion is only to the extent of permitting pursuit of spiritual life which is different from, the secular life. The latter falls in the exclusive domain of the affairs of the State. This is also clear- from sub-sections (3) of S.123 of the Representation of the People Act, 1951 which prohibits an appeal by a candidate on his agent by any other person with the consent of the candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of appeal to religious symbols. Sub-section (3A) of the same Section prohibits the promotion or attempt to promote feelings of enmity and hatred between different classes of the citizens of India on the grounds of religion, race, caste, community or language on a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate. A breach of the provisions of the said sub-ss.(3) and (3A) are deemed to be corrupt practices within the meaning of the Said Section."

"Reading sub-sections (3) and (3A) of S.123 together, it is clear that appealing to any region or seeking votes in the name of any religion is prohibited by the two provisions. To say that what was prohibited by S.123(3) was not an appeal to religion as such but an appeal to religion of the candidate and seeking vote in the name of the said religion, is to subvert their intent and purpose of the said provisions."

"K. Ramaswamy, J.- It cannot be said that the interpretation and applicability of sub-sections (3) and (3A) of S. 123 of R.P. Act would be confirmed to only cases in which individual candidate offends religion of rival candidate in the election contest and the ratio therein cannot be extended when a political party has espoused, as part of its manifesto a religious cause. In a secular democracy, like ours, mingling of religion with politics is unconstitutional features of secular democracy. It is, therefore, imperative that the religion and caste should not be introduced into politics by any political party, association or an individual and it is imperative to prevent religious and caste pollution of politics. Every political party, association of persons or individuals contesting election should abide by the constitutional ideals, the Constitution and the laws thereof."

“B.P. Jeevan Reddy, J. (By himself and on behalf of S.C. Agrawal, J.) (Pandian, J. Concurring) -If any party or organisation seeks to fight the elections on the basis of a plank which has the proximate effect of eroding the secular philosophy of the Constitution would certainly be guilly of following an unconstitutional course of action. Political parties are formed and exist to capture or share State power. That is their aim. They may be associations of individuals but one cannot ignore the functional relevance. An association of individuals may be devoted to propagation of religion; it would be a religious body. Another may be devoted to promotion of culture; it would be a cultural organisation. They are not aimed at acquiring State power, whereas a political party That is one of its main objectives. This is what one mean by saying ^functional relevance'. One cannot conceive of a democratic form of government without the political parties. They are part of the political system and Constitutional Scheme. Nay, they are integral to the governance of a democratic society. If the Constitution requires the State to be secular in thought and action, the same requirement attaches to political parties as well. The Constitution does not recognise, it does not permit, mixing religion and State power. Both must be kept apart. That is the Constitutional injunction. None can say otherwise so long as this Constitution governs this country. Introducing religion into politics is to introduce an impermissible element into body politics and an imbalance in our constitutional system. If a political party espousing a particular religion comes to power, that religion tends to become, in practice, the official religion. All other religions come to acquire a secondary status, at any rate, a less favourable position. This could be plainly antithetical to Arts.14 to 16,25 and the entire constitutional scheme adumbrated herein above. Under our Constitution no party or organisation can simultaneously be a political and religious party. It has to be either. Same would be the position, if a party or organisation acts and/or behaves by word of mouth, print or in any other manner to bring about the said effect, it would equally be guilty of an act of unconstitutionality. It would have no right to function as a political party. The fact that a party may be entitled to go to people seeking a mandate for a drastic amendment of the Constitution on its replacement by another Constitution is wholly irrelevant in the context. Constitution cannot be amended so as to remove secularism from the basic structure of the Constitution. Nor the present Constitution can be replaced by another; it is enough to say that Constitution does not provide for such a course - that it does not provide for its own demise."

"Consistent with the Constitutional philosophy, sub-sections (3) of S.123 of the Representation of the People Act, 1951 treats an appeal to the electorate to vote on the basis of the religion, race, caste or community of the candidate on the use of religious symbols as a corrupt practice. Even a single instance of such a nature is enough to vitiate the election of the candidate. Similarly, sub-section (3A) of S.123 provides that "promotion of, or attempt to promote, feelings of enmity on hatred between different classes of citizens of India on grounds of religion, race, caste, community or language" by a candidate on his agent etc. for the furtherance of the prospects of the election of that candidate is equally a corrupt practice."

Our secularism can never be Hinduism, as observed by Justice Verma. The layman in the country believes that Hinduism is a religion. Whatever may be it geographical origin or other scientific definition given, it is a religion and in no circumstances anyone has spelt it as Indian Secularism. To quote Dr. Radhakrishnan, "The Indian state will not identify itself with or be controlled by any particular religion. We hold that no one religion should be given preferential status, or unique distinction, that no one religion should be accorded special privileges in national life or international relations for that would be a violation of the basic principles of democracy and contrary to the best interests of religion and Government".

The Constituent Assembly immediately after our independence, on April 3,1948 passed a resolution in the following words:- "Whereas it is essential for the proper functioning of democracy and growth of national unity and solidarity that communalism should be eliminated from Indian life, this Assembly is of the opinion that no communal organisation which by its Constitution or by exercise of discretionary power vested in any of its officers and organs admits to, or excludes from its membership persons on grounds of religion, race, and caste, or any of them should be permitted to engage in any of them should be permitted to engage in any activities other than those essential for the bona fide religious, cultural, social and educational needs of the community, and that all steps, legislative and administrative, necessary to prevent such activities should be taken."

To say that Justice Verma is unaware of those observations and findings may not do justice to him. But it is true that he omitted to consider the only one judgment, which ought to have been considered, when he is considering the secularism of the country. The decision of the 9 member Bench is binding on the 3 member Bench. 3 Member Bench cannot override 9 judges decision. He might have felt that it is better not to mention it.

The persons who welcome the judgment, includes Sri. L.K. Advani, the President of B.J.P., he considers it as a seal of the highest judiciary in the country for his party's stand on 'Hindutva'. He claims that this is imprimatur for their party's slogan. V.H.P. President Sri. V.H. Dalmia considers this judgment as getting the green signal to go with propagating "Hindutva". Bal Thakkeray, inspite of strictures against turn believes that acceptance of 'Hindutva' as Indianisation by the Supreme Court gives a shot in the arm for his work. They have decided to place a new agenda now before the people which includes, Uniform Civil Code, total ban of cows-slaughter, re-construction of Kashi, Madura, Ayodhya Temple etc. A wave basing on majority religion, they hope, can be built. Now the shock of the Babari Mazjid is over and a new wave of 'Hindutva' can be created by them.

'Hindutva', as preached by Manohar Joshi, has got a background. It is the definition which V.D. Savarkar gave in the year 1923, "Hindu is a person who regards the land of Bharatvarsha from Indus to the Seas as his Father land as well as his Holy land -that is the cradle land of his religion'. The connotation of pitribhumi and punyabhoomi were brought by him and he explained that Muslims and Christians have their holy land in Arabia and Palestine and they can not equate their pitribhumi as punyabhumi. The propagonists of this 'Hindutva' ideology believes that this country can accept one Hindu culture and everyone must accept 'Ram'. In 1942 the slogan given by Sangh Parivar was Hindu wise politics and militralise Hinduism. They look for Hindu Rashtra. The preaching of Golwalkar and others were all in this line. Manohar Joshi, the present Chief Minister is a follower of Sangh Parivar. When he declares that Maharashtra will be the first Hindu State, it means that his decision is with regard to the 'Hindutva' and believed and preached by him.

Our country is having a constitution today and that constitution defines the territory and nature of the state. The Maharashtra is a State in existence as defined under the Constitution. If anyone wants it to be a different Maharashtra, either in appearance or char actor that will be different from Maharashtra as defined and understood as per the Consutution. No doubt, what Mr. Manohar Joshi said is different from the Constitution in the name on which he has taken the Chief Ministership. He has committed breech of the Constitution and violated the basic principles therein. His election also would have been set aside in the same manner as that of Bal Thackkeray. The Judge ought not have taken the pain and agony to define 'Hindutva' in an election case that too in the eve of general election. This judgment will have a very serious consequence and repercussion. It is to be reviewed by the Supreme Court, otherwise it may be construed as a green signal for building a Hindu Rashtra, which the frames of our Constitution and fathers of the freedom struggle never thought of.

Sharpless Knife on C.A.T.: 1988 (1) KLT Journal Page 67

(By Varghese P. Thomas, Advocate, Ernakulam)

From a plain reading of this Article one will come to a conclusion that the writer is not conversant with the legal terminology or not knowing the correct implication of the judgment reported in AIR 1997 Supreme Court page 1125 and 1996 (3) SCC Page 158. The writer has misunderstood the dictum of the decisions in those cases. The writer is more influenced by emotions than the implications and dictum laid down therein. If it is deliberately written to undermine the status of a Judicial Forum, it speaks for itself that a futile attempt is made.

Actually the writer in his argument and proposition to abolish the C. A .T. has relied on mainly on the above two rulings. He has also made certain sarcastical and unwarranted comments against the existence of the C.A.T. The Supreme Court in its land mark decision in Chandrakumar v. Union of India (AIR 1997 SC Page 1125) has laid down various conclusions as to the judicial powers of the Tribunal constituted under Art. 323(A) and 323(B) of the Constitution of India. The gist of the said ruling is as follows:-

"The Tribunals are competent to hear matters where (lie virus of statutory provisions are questioned. However in discharging this duty, they cannot act as substitutes for the High Court or the Supreme Court which they have under our Constitution and have been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to the scrutiny before a Division Bench of the respective High Courts. The Tribunal will consequently also have the power to test the vires of the subordinate legislation and rules, however this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that the very Act to be unconstitutional. In such cases alone the concerned High Court may be approached directly".

This what is mainly intended by the apex court in the above said judgment.

The writer stated that the Tribunals are now not a substitute, but subordinate to the High Court. In Chandrakumar's case the Hon'ble Supreme Court nowhere stated as such as stated by the author. In the discussion, regarding the principles of judicial review and the judicial supervision under Arts.226 and under 227 of the Constitution, the area of jurisdiction alone has been described and clarified by the Supreme Court. Section 3 of the High Court Act deals with the powers of a Single Judge. Section 4 deals with the power of a Bench of two Judges. Section 5 deals with appeals from judgment or order of the single Judge. Likewise the decisions of the Administrative Tribunal is to be judicially reviewed by the Hon'ble High Court and that too can be filed only before a Division Bench and not before a Single Bench which has been specifically clarified by the Supreme Court. The Hon'ble Supreme Court even consciously stated in para.95 of the judgment in Chandrakumar case that the argument and proposition that the appointment of the Administrative member to the C.A.T. should be stopped was not tenable. It must be remembered that the setting up of these Tribunals are founded on the promise that specialist bodies comprising both trained administrators and those with judicial experience would by virtue of their specialised knowledge, be better equipped to dispense speedy and efficient justice to the affected parties. It was expected that a judicious mix of judicial members and those with grass root of experience would best serve the purpose. To hold that these Tribunals should consist only of judicial members would not serve the purpose of its constitution.

The writer wrongly state that the Vice Chairmen who are now in the position of District Judges are paid the same salary perks of High Court Judges. It is a wrong conclusion. The Vice Chairman is not in the position of a District Judge, The Vice Chairman is appointed as per the Administrative Tribunals Act. His qualifications are as described in the Act. He cannot be equated with that of a District Judge. S. 6 of the Administrative Tribunals Act mentions the qualification for appointment of the Chairman, Vice Chairman and other members. For the Chairman, Vice Chairman, the qualification is that of the same as to be appointed as a High Court Judge.

The position of the Tribunal is criticized by citing the ruling reported in 1996 (3) SCC 158. This judgment was pronounced by the Supreme Court in Service Law observing the powers of judicial review of the Tribunals. It is mentioned that the Tribunals shall not act as an Appellate Forum of a departmental enquiry.  All most all sentences with question marks are made with an intention to lower down the prestige of a good Judicial Forum.

The Tribunals are constituted for the purpose of speedy disposal of the cases by specialists. C. A.T. shall be treated as a special body. All principles of law are adopted for the creation and functioning of this statutory body to meet the ends of justice, I feel the writer without actually looking into the Act and analysing its working and functioning wrote this Article. It cannot be treated as a while elephant. The recommendations of the High Level Committee to abolish the C. A.T. is the outcome of political motivations. When administrative members are judicially discharging their duty along with judicial members harmoniously, it is to be appreciated by members of the bar.

Lawyer and Judicial Officer Need for Toning-Up

(K. Srinivasan Nair, Advocate, Alappuzha)

Legal profession is, undoubtedly, one of the noblest professions: I always prefer to believe this as literally true and want others to profess so.

The conduct of a lawyer, right from the very inception, is virtually important in gauging his personality, demeanour, stature, self respect and integrity. His competence also is assessed mainly by his performance in Court. It is his intelligent evaluation of the relevant materials and the exhibition of his talents, skill, intellect and legal acumen that make him consider as competent or not to handle any given case. It needs no saying that academic brilliance does not always produce practical success. Experience is, therefore, considered as the best teacher. Thanks to the Bar Council of India for having imposed stringent conditions, as before, for the budding lawyers entering on the threshold of the profession to be capable of equipping themselves with the necessary training in grasping the required formalities.

Notwithstanding all these, I am constrained to point out, there is a general impression that the standard expected of them is on the decline. This trend is certainly dangerous and it should not be allowed to gain ground.

It is saddening to note that at present, many lawyers fail to do dedicated work; but seem to be content with what they could otherwise achieve. Youngsters, I am told, behave like day-scholars of the college.

The role of a lawyer is rosy after he earns fame and reputation. A lawyer in the making has to labour hard to master the art. He has to ensure administration of justice by Court, with his able assistance. He should never mislead the Court by relying on reversed, untenable decisions or canvass for patently irreconcilable propositions, prompted by temporary gain or other ulterior motives. This certainly requires thorough knowledge of fact and law. Though the success of his brief is his paramount consideration, the means adopted therefore, should not be unethical.

The recent disapproval expressed by the learned Advocate General on a lawyer visiting the Police Station and its wrong interpretation without understanding his best intention, only helped to expose the line of thinking of certain advocates. For controversy they said that what the Advocate General wanted amounted to the violation of a constitutional right.

The accepted practice of a client searching for his lawyer, is, generally, reversed, by force of habit or other compelling circumstances. This is, at once, a devastating trend that should be nipped in the bud to resume the prestige of this profession. The outcome of a good number of lawyers after making sannad from the Bar Council and the shortage in litigation must have indirectly contributed to this degrading phenomenon, in this competitive field. With aspersion to no one I am compelled to say that professional integrity and respect should not be allowed to be degraded in the conscious drive to become rich. Those who are so inclined are requested to have a subjective introspection, without any malice or prejudice and desist from any move that is likely to undermine the status of the profession.

With my long and varied experience as an advocate, APP II and I, Sub Magistrate, Public Prosecutor, Central Bureau of investigation, Additional Legal Adviser, Vigilance, Legal Adviser, Police Department and lastly as Additional Director of Public Prosecutions, I feel, I am entitled to make a request to my young bretheren in the field to exhibit more scruples in their day to day dealings as members of this noble profession. The concept of professional status, if preserved, will only enure to your benefit in the long run. It is therefore, my sincere advise to concentrate more on becoming a lawyer dedicated to the profession, by mastering the fact and law in any given case, instead of whiling away your precious time. I would request the young lawyers to co-operate with the move, correctly appreciating the spirit and bereft of unnecessary ego.

My experience as a Judicial Officer and the ideals I have so far imbibed, also compel me to tell a few words with regard to the ostensible changes noticed in the conduct of a Judicial Officer, that tend to undermine the prestige of that post. A Judicial Officer, in his solemn task of adjudication on the right or wrong, in fact and law, should properly exercise his discretion, effectively controlling the Court proceedings, restricting the irrelevant and illegal diagressions of the consels of either side, to uphold the prestige of the post and to protect the confidence reposed by the society on his rectitude.

While telling so, I am certainly conscious of the fact that this virtue is not automatically conferred on an individual, merely on account of his posting, but is acquired through experience, coupled with conscious aptitude to attain the necessary characteristics. This endeavour requires skill, tact, legal acumen, self-respect, courtesy and intellectual ability. Lack of omission to have any of these essential virtues will result in imperfections, ranging from silly to serious flaws, in the conduct of a Judicial Officer.

It is my humble view that a judicial officer should always exhibit traits to command the respect and consideration of all concerned, the lawyers, parties, witnesses and others. He should also be cautious in making orders or observations, liable to generate or augment the awe and respect of all concerned. It would be highly ludicrous if his decisions or remarks are patently erroneous. He should, therefore, regulate his conduct with dignity and distinction. His remarks should be couched in words that indicate maturity, wisdom, prudence and grace. Exemplary dealing in a particular court will also enhance the reputation of the lawyer appearing before it.

But, I am pained to observe that these salutary principles are more honoured in their breach than in observance.

After resumption of practice in January 1992,1 happened to appear for one of the accused in two cases, pending before the Court of a Special Judge, Vigilance, obviously on the compulsion of a lawyer friend. In these cases, my client appeared to have been included in the array of the accused only after 10 years from his alleged participation in the commission of the crime. Earlier, he was not even suspected in the stages of the preliminary and detailed enquiries conducted by the Vigilance and till the fag end of filing charge sheets. It appeared that he was later included on the basis of a report from the Chairman of the Bank in which he was employed, attributing his complicity, on the close of a domestic enquiry (that resulted in the termination of his service).

On the day on which the Investigating Officers have to be examined, the bench clerk gave me sufficient hint to the disinclination expressed by the Judge in allowing the defence counsels to put questions to the I.Os. No doubt, I could take this ban only with a pinch of salt; but I imagined that he might have been referring to unwanted details. But during actual trial, this warning acquired the force of truth. One of my friends who began cross examination was frequently interrupted by the Judge. With considerable dismay he ended up his cross. When my turn came, I asked the CI who conducted the major -portion of investigation, whether his probe revealed any material warranting the inclusion of my client as accused and he answered in the negative. Next came the Dy. S.P. He also initially endorsed the version of his predecessor. When I further asked him about the time of inclusion of my party as an accused, he took time, feigning ignorance. I repeated my question and pointed out that he could refer to the case diary to be specific. The judge all on a sudden came to his rescue with an ultimatum directed against me "no you could not ask that question". For a moment, I was flabbergasted at the misconceived intervention of the Judge. Other defence counsels forcibly pulled down my gown to avoid further possible confrontations. The question I put was absolutely vital and material. I then asked the witness whether it was not on a particular date (specifying the date) that he was made an accused, he said "yes'. Though the controversy so ended, it was evidence that the Judge who was earlier sitting on the civil side was not conversant with the proceedings in a criminal trial. But later the Judge acquitted all the accused, considering my contentions in the argument note.

I do not mean to say that a judicial officer should always be infallible. No, not at all. To err is human and no mortal is an exception. But, it is his conscious endeavour to avoid such mistakes that makes him distinguishable. Here, my grievance is that the Judge failed to exercise his discretion; but jumped to unfounded conclusions. Was not silence golden instead of committing blunders from the dias?

A retired Munsiff told me that while in the garb of an advocate, he had to endure a serious question from a judicial officer whether he could enlighten the court the total number of the provisions in the Motor Accident Claims Tribunal Act. This snub was quite unprovoked. It is my considered view that a judicial officer should, as far as possible, adopt a give and take policy. He can certainly, rebuke, snub or rebuff, in a fit of wit homour, sarcasm or irony, depending on circumstances, of course, without wounding the ego of a lawyer with vengeance.

There was a judicial officer in service, who openly declared it a policy not to grant any injunction to a lawyer who fell out with him in open court, while granting similar relief to others. Was not this attitude too spiteful?

Quite recently, a senior lawyer narrated his experience of a judicial officer prohibiting Mm from moving towards the dias, conveniently forgetting the implied sanction he was giving to the prosecutor hitherto. This is apparently a gross discriminatory attitude. This surprising conduct only betrays reason or common sense.

The example of a judicial officer who exposed his vanity by disregarding a portion read out from Chitaley, an accredited authority on CPC, equating it with the "undependable recital" from a text on Negotiable Instruments Act by an unknown Tamilian author, also deserves serious concern.

The order of injunction passed by a Munsiff restraining the entire people of a Panchayat from trespassing into the plaint scheduled pathway provides more distressing reading. Instances of this sort are many. But reference to all is unnecessary for my limited purpose.

Just like any other citizen, and more so because I happened to belong to the legal profession; I strongly feel that the desired change can be easily achieved if the Honourable Chief Justice of our High Court is pleased to take a little initiative in imparting suitable instructions to the subordinate judicial officers to regulate their conduct to attain the cherished ideal of a perfect Judicial Officer.

Bar Council Election - Of Members of the Bar or Bar Council

(By Srinivasan Nair, Advocate, Alappuzha)

I felt overjoyed to exercise my franchise, as an advocate, for the first time in my life-for the solemn purpose of electing the members to the Bar Council of Kerala, by utilising the opportunity I was entitled to, after my retirement from Government Service. The direct approaches by many of my respectable friends in the profession during the process of canvassing and the indirect solicitations convey to me from certain other quarters, made me to have some sort of deliberations in terms of professional competence, integrity, sincerity of purpose and friendship, in grading my preferences, as required by the rules governing such an election. A chip of the old block who took sannad from a Division Bench of the High Court, consisting of Chief Justice K. Sankaran and Justice Smt. Anna Chandy, way back in 1959,1 happily conceived of a qualified, competent, respectable, august substituted forum with integrity, discharging the duties, once possessed and performed by High Court Judges in the enrolment of Advocates. The additional fact that it is the Bar Council that is legally constituted as the guardian angel in ensuring the. quality of professional standards of lawyers and enforcing discipline among them, by appropriately dealing with their misconduct, was further encouraging. A Bar Council with competent, respected and experienced members with the status reckoned by law is to be the dream and pride of every lawyer by profession.

The visits made by a few of my candidate-friends, also in the morning of 9-4-97, the date of election at Alappuzha, served as an instantaneous impetus in performing my duty at the earliest. After their exit, I went to the Bar Association and requested one officer in charge of election to verify and ensure my identity as a voter. He then referred to the old list and a new one and told me that my name was not seen there. I was truly disappointed. I felt my wishful thinking in fructuous. I cooly walked out. I wondered how those candidates who are or were, in one way or other, connected with the governance of the Bar Council and the local Bar Association President and the Secretary met me on a few occasions, if I were not actually eligible to cast my vote this time.

For a few hours I remained in the vicinity, closeted with a lawyer friend, in his residence. Meanwhile, I could ascertain the tenacity with which a senior Advocate of another station was accused by certain young lawyers, questioning his competence in doubting the genuineness of certain procedures in the process of election.

Now, it is 6.05 p.m. on 11 -4-97, the last date fixed for election. By now the electoral process is all over. But the reports that are afloat, in respect of the election, in certain centres make one believe in the resurrection of the dead and more malpractices resorted to, though personal voting is made mandatory as per rules. Now, I can only console by recollecting the words of a friend, "if you were dead your soul would have definitely rested in peace knowing that "Srinivasan Nair" exercised his franchise." Since I am not dead, I could still be content with my compulsory ouster from voting, either by the oversight of the Bar Council or my laches, that I was spared from any involvement in this dirty game.

The result of the election is yet to be seen. No one is certain as to what is in store for us in the meanwhile. Let what I heard become untrue, to maintain the cherished concept of that eminent and powerful forum of the Bar Council of Kerala.

Before parting, I would suggest the conscientious updating of the voters list and the holding of election on the same day, throughout Kerala under strict supervision as safeguards to rule out serious malpractices in this regard. Present attempt at justification, basing on a comparative reduction in malpractice, following the step of political parties, can then be curtailed to a considerable extent.