Interest and Expense on Dishonourned Cheque

(By S.A. Karim, Advocate, Thiruvananthapuram)

Money is what money does. In trade and commerce, cheque, bill of exchange, and promissory note are used commonly instead of liquid cash. These three are called negotiable instruments. In number of dealings, cheque stands first. Minimum three parties involve in a cheque. Drawer is one who deposits money with the drawee, who is always a bank. Payee is the receiver of money from drawee bank. There, are holder and holder in course. In fact, they are legal heirs of payee and have the same rights and obligations. Drawer issues cheque on the drawee bank, who pays the money to the payee. There ends the transaction. This system has been built upon trust and is the same throughout the globe.

Once a cheque is dishonoured, there begins trouble. The relationship between the drawer and payee is debtor and creditor or borrower and giver. The dealing may be money or money's worth. In this context, Ss.138 to 142, Negotiable Instruments Act, 1881, comes to play. Before dishonoured cheque goes to court, it needs to satisfy several preconditions. One is to issue demand notice narrating dishonour.

"Section 138(b) says- The payee or the holder in due course of the cheque, as the case may be makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from die bank regarding die return of die cheque as unpaid".

So, the payee takes the matter with lawyer. There incurs bank charges, notice charge, postage and travelling and other expenses to the payee. Money is always active and presumes to be earning profit, but in different names. In dealings of goods, if is profit; in service it is fees or salary or wages as the case may be and in money dealings, it is interest. Cheque means money. So, in cheque transaction interest involves.

Interest Act, 1978, Act, 14 of 1978, guarantees interest. S.3(1) of the Interest Act says,

"In any proceedings for die recovery of any debt or damages or in any proceedings in which a claim for interest in respect of any debt or damage already paid is made, the court may, if it thinks fit, allow interest to the person entitled to the debt or damages or to the person amking such claim as the case may be at the rate not exceeding the current rate of interest, for the whole part of die following period, that is to say (a) if die proceedings relate to a debt payable by virtue of a written instrument at a certain time, then from die date when die debt is payable to the date of institution of die proceedings".

This is all about dishounour of cheque. The drawer is solely responsible for this situation. In the instant context, the payee takes all the trouble. If section 138(b) reads in between the lines it means the amount on the face of the instrument. If the same matter agitates in the Civil Court, the payee gests interest and expense. Therefore, the Parliament intends to include, interest and expense with the expression "MAKE A DEMAND FOR PAYMENT OF THE SAID AMOUNT OF MONEY BY GIVING A NOTICE IN WRITING" under S.138(b), Negotiable Instruments Act, 1881.

The Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated (Lands) Act. 31/75, Its Amendments and Consequences

(By R. S. Ramakrishnan, President, Consumer Disputes Redressal Forum, Palakkad)

The less fortunate amongst our brother are still living in lulls and such other places tar, far away from the limits of the so called educated sophisticated area. The mentality of man being selfishness, the urge for getting more and more property induces him to search for avenues of gain or other modes of acquisition of property. The Scheduled Tribes in these parts live in hilly areas, who happen to be the victims of the greed of the educated, a greed of his opposite. These hill tribes living in these far off places earn their livelihood by cultivation, either as owner, or as labourer. The extent of the property in no case is considerable. Hence, the Kerala Government has thought it expedient to gram these people small pieces of land in the hilly areas for their existence. In this way also these scheduled people happened to own small parcels of land for their existence.

Certain situations in which these scheduled tribe people find themselves in. are taken advantage of by some persons who intrude themselves into these areas with some money and utilise that situation to deprive the scheduled tribe people of their belongings, movable and immovables, instances are not wanting wherein, these unfortunates are deprived of their lands on payment of considerations, very significant. Other modes of deprivation also do exist. In all these cases, the effect is the same, the poor tribesman is deprived of his property, ostensibly, legally. That really happens in more cases than one. This kind of devastation, if I may put in that form, has taken root and a survey in this regard has shown certain results which unless checked by law would attain proportions beyond limit.

The Kerala Government, therefore, thought it necessary to introduce law in the form of an Act and (hat is Act 31/75, which received the assent of the President on 11.11.1995 and it came into force front the date of publication in Kerala Gazette dated. 14.11.1995.

The scheme of the Act consists in the restoration of the lands already alienated before the commencement of the Act and after 1.1.1960, and secondly the prohibition of the alienation after the commencement of the Act. The 1st portion is simple, since it was declared that the transfers during that period are deemed to be void, with the consequential right of the transferor to have a retransfer. The argument that seems to have been advanced is that the transferees in such cases, had parted with their money and also would have affected improvements which would deprive them of their valuable right of owning or otherwise dealing with his property namely money. It seems to have been also argued that bonafide transfers also do exist. This has been met by the Act itself by providing for re-imbursement under the said two heads, namely paying down the money and the value of improvements. The transferee gets his quid pro quo either in full or to the extent he is entitled for his transferring the property to the original transferor. This provision is a salutory one. For one thing, the transferor gets his value, for another il meets the argument that the provision is unconstitutional. I am not dealing with (he constitutional aspect herein as il is only unnecessary at present.

The order and most important provisions of the Act is contained in the prohibition of the transfer after the Act and penal provisions that visit the transferee for the violation of the prohibition. The idea is not far difficult to be sought. The transferor backward tribes man. might find himself in situations wherein monitory assistance is essential, being pressed in this regard he might of his own will transfer his own property. If such a safety valve is not provided for in the Act, then the purpose of the Act itself would be defeated. The hill tribes man in such a situation is akin to a patient or otherwise a defective minded man in the eye of law. Such persons are to be protected not withstanding their doings. Hence, there is an absolute prohibition of transfer. This absolute prohibition would be of no avail unless a penal provision is enacted for contravention thereof.

The relevant portions of the Law in this respect are discussed in a very summary manner.

1. The implementation of the Act is left into the hands of the District Collector as in any other matter. To me it appears that the District Collector's anvil are already full and hence, another officer of equal rank preferably chosen from the judiciary would have been better and happier. This is only mentioned in passing of. The contravention of the provisions in the Act, the direction for reconveyance i.e., the restoration, and connected matters are to be done by the District. Collector who is termed as the 'Competent Authority'. The 'Competent Authority', therefore, is the head of the Executives in this regard. This concentration of authority would necessarily involve delay in implementation even if a separate section is officed in the Collectorate, which in its turn would be the 'note putting" section and invariably and ordinarily these notes are the guidelines of the actions of the Collector. Such notes are not subject to correction or verification. With the consequential draw back of "becoming a slip in the direction of error or of excessive, correctness. Be it as it may, the Act as at present enjoins the District Collector the duties in the matter of implementing the provisions of the Act.

Another important provision of the Act is the definition of the word transfer. In the “Anyadeenapeduthuka". That idea is conveyed by the definition in the word "Transfer" with some additional word vila panayam and unduruthi. The summon bonum of the word "'transfer" consists in the preservation of the immovable property of the tribesman without any encumbrance whatsoever. Any transaction by which these immovable properties are subject to any sort of liability, whether it be for real or true or absolute necessity is eschewed. This is the salutory rule in the interests of the tribesman. The question that might crop up in the matter of such absolute prohibition is and to how the tribesman would be above to meet his demands in money if the 'Transfer" is prohibited. . It is to meet such contingencies that provisions for granting the necessary help are introduced. In this way, the imagined hardship is crossed over:

The regulations for implementing the Act were framed only in 1987, with retrospective effect from 1982. The alienation of lands subsequent to 1982 were not recognised and were also prohibited. Such transfers would entail criminal prosecution also. As per this Act, the tribals filed petitions before the Revenue Divisional Officer for the restoration of their lands transferred earlier. Now, it is understood that about 8000 tribals alone had taken steps to the re-transfer of their lands.

At this juncture, it would be only necessary to mention the exemption provision and I hey are as in any other law the public dues and also dues to the banks and Co-operative Societies. Yet another feature of the Act that is to be mentioned in passing is the penalty provision in the Act and the cognizance of offences. S. 13 of the Act mentions the penal provisions and S. 14 mentions that only Magistrates of the Cadre of 1st class alone are competent to take cognizance of the offences. The complaint in this regard is to be filed by the Revenue Divisional Officer having the jurisdiction or by any aggrieved person. Two other minor matters consist in the immunity of the tribesman from Chap. X of the Code of Criminal Procedure and ban of the legal practitioners from appearing in cases connected with the Act. From the very nature of things there cannot be any application regarding dispute as to possession, if the Act is implemented properly. Even if any other matter arises, it can only be between inter tribesmen. The non-applicability of the Chapter X of the Cr. P.C. in its absolute form, might create difficulties unless the Act is suitably amended. As to the disability of the legal practitioner to appear and plead, the reason is not far to seek. The last section need not be considered herein as it is "Saving' section. No doubt other provisions that succour to the needs of the tribesmen do exist. This Act is in addition to those provisions. I am not touching the constitutional aspect of the law in question nor do I consider it necessary. Directive principles enshrined in the Constitution are indended only for such purposes as are mentioned in the Act. That being so, the validity following at close heels the directive principles contained in the Constitution.

I have dealt with the Act, in the main, as to the purpose of the Act and the implementation of its provisions in a very short manner.

The tribals of Kerala State, of late initiated action demanding implementation of the above said Tribal Act, 1975. They also moved with the Government, a number of times, praying repossession of the lands usurped from them. In a pending case, the Hon'ble High Court of Kerala recently had directed the Government to restore the alienated lands of the tribes within six weeks. But the Government proposed to amend the existing Act, so as to provide alternative lands to the tribals instead of their lands once alienated. Accordingly, the Government introduced bill in the last session of the Kerala Legislature Assembly and got it passed into Act. This is because the Government does not wish to evict the settlers who are already in possession, cultivating lands, raising crops, and making improvements therein. The tribals who were originally owners of lands, were dispossessed from their lands, when settlers began agricultural operations there. As per the Kerala Land Reforms Act, 1970, the ownership of lands vested with the settlers and the illiterate unfortunate tribals became bonded and paid labourers of their own lands. By the implementation of the amendment, to Act 31/75, the tribals would be displaced from their own lands where they have been residing there for years. By the amendments it is understood that the Government only proposed to pay some compensation and one acre of land to the tribals. This would only throw the tribals here and there. And the development programmes would never benefit them. The actual beneficiaries would be settlers. As per the present set up, the encroachers are being permitted to settle in tribal lands by distributing title deeds to them and whereas the tribals do not have any documents to prove their possession of lands.

We have yet to see how far the amendment will benefit the tribes.

Art of Advocacy and Professional Management *

(By T.P. Kelu Nambiar, B.A.M.L.)

“Have you seen God”, was the question raised by Narendra (who later became Swami Vivekanada) when he met Sri Ramakrishna Paramahamsa, to which the reply was: "If you take efforts, I shall try to help you." The message of Sri Ramakrishna was, "search for God." Refraining Narendra's question, if you ask me : "Have you seen Hortensius", I would venture the same reply: "If you take efforts, I shall try to help you." (Mark, Hortensius, according to Cicero, was the greatest of advocates).

Today is the day of great expectations for you. Today is the day on which you are expected to know the rise and fall of the legal profession.

I am delivering a carefully drawn up script. It is in the direction of an "Operation Save Profession." My views may be considered ponderous, coming as they are from a person who has already seen more than seventy summers, of which about forty-five are as a lawyer; and who has been witness to the good, bad and ugly side of the profession, in his capacity as a young lawyer, a Senior Advocate and the Chairman of the Disciplinary Committee of the Bar Council of Kerala for about nineteen years now. I have witnessed the glorious past. I do not know whether I would be able to see an exciting future. The trailer of events to follow is not encouraging. The script of the profession's reversion seems to have been written. The bottom line is, the profession is losing its nobility. The profession seems to be moving towards Zero-sum-game. I may not be looked upon as a doomsayer.

Who is to be blamed for the profession's shame, is a difficult question to answer. Nobody bats an eye on the sad state of affairs. Nobody seems to try to reset the profession, though the allegations against the profession are flying thick and fast.

Now, without trying to counter controversy with controversy, let us try to resolve the issue. The winners of tomorrow will be those who consolidate today. The higher you aim, the higher you reach. I want to convey certain message to you via this address, casting aside the inquisitorial hectoring of the profession's present position. In the process I may venture certain Confidence Building Measures. If you follow the points, they may help you to succeed now, though there is no guarantee of its durability.

Legal profession today can be compared to a withering wife, after her husband's death; here; after the death of advocacy. Advocacy is the life-line of the legal profession.-For effective advocacy, I believe, a lawyer should be comfortable in the English language. Therefore, make a strong pitch for the study of English. Try to make your mind your dictionary in English. I had occasion to refer to this aspect in the Pre-enrolment lecture delivered by me in March 1992 under the joint auspices of the Bar Council of Kerala and the Indian Law Institute. Kindly permit me to quote me, though, of course, I have obtained my own permission :

"I should draw your attention to an important factor which goes in the making of a good lawyer, that is language. Scott said; "A lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect." Therefore try to bean 'architect' lawyer, without remaining a mere 'mason' lawyer. On this aspect, I commend the views of Glanvilie Williams on general reading by lawyers. The learned Professor asks lawyers to read Shakespeare, Dickens, Henry Fielding, Thackaray, Samuel Warren, Galsworthy, Sir Waller Scott, R.L. Stevenson, Trollope, Emily Bronte, George Eiot and H.C. Leon, who wrote under the pen-name Henry Cecil. There are a number of legal references in Shakespeare and this has given rise to a theory that he was a lawyer. Charles Dickens started life as a lawyer's clerk and court reporter, and most of his novels contain legal characters or legal references. Henry Fielding was a lawyer and later a London Magistrate. Thackeray, Samuel Warren, Sir Walter Scott, R.L. Stevenson and Henry Cecil were all lawyers. Their famous works are prolific in legal allusion, combined with literary excellence. Apart from legal literature, a lawyer would be greatly benefited by reading pure literature, literary works of famous authors like Mathew Arnold, William Hazlitt, Oscar Wilde, G.K. Chestarton, W.B. Yeats, Edmund Burke and Dr. Johnson. Lord Denning said: "To succeed in the profession of law, you must seek to cultivate command of language............Words are the lawyers' tools of trade..........As a pianist practices the piano, so the lawyer should practice the use of words in writing and by word of mouth."

Incidentally, let me venture the view that apprentices-at-law are unborn lawyers; they should be taken care of, as it is done in the case of unborn children. And, one year training prescribed by (lie Bar Council is a pre-qualification for eligibility to be lawyer. Therefore, they should try to secure a higher score in the venture.

I should think I have not yet begun the subject of the address. Let me begin now, and that with the supplication or invocation, that is the Preamble to Chapter II of the Bar Council of India Rules, which is the discipline of the profession :

"An advocate shall, at all limes, comport himself in a manner befitting h is status as an officer of the Court, a privileged member of the community, and a gentlemen, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of die Bar in his non-professional capacity, may still be improper for an advocate."

This guideline is of tremendous validity, especially to a beginner in the profession; and if you adhere to this guideline, and remain absorbed in the present, you will have no past regrets and future fears. You may sometimes feel defeated. Reconciliation with defeats may seem impossible but. it is inevitable. Initial defeat does not preclude ultimate success, for such defeat is unlike the terminal illness of an old man. A strong mind can control the situation. Never mind perverse coincidences.

The sovereign method to reach God, is devotion; and that itself, that is, devotion to the profession, is the efficacious method to reach the pinnacle of the legal profession. The time devoted to the profession is time well spent. And your great unspoken ambition should be to be Number One in the profession. And, in this profession, everyone could be Number One as there is no reservation for the position. Enjoy me feeling or utter dedicating to the profession. Intense concentration gives rise to inspiration which is called pure devotion to professional duty; from it arises the blaze of dedication and sense of responsibility, which every lawyer should have. Be pure perfection as a lawyer, remembering, man's prized possession is his character; and a tarnished image is worse than death. Hard work is the summary of the legal profession. "Let not your attachment be for inaction."

Feel comfortable with your profession. Lawyers can get into trouble just because they are lawyers. Try to acquire the wisdom of the wise and the splendour of the splendid. The body-mind complex is a wonderful instrument. Separate the advocates from the lawyers.

Confucius once said: "You cannot see anything, if you learn but not think, and it is dangerous to think without learning." Therefore study your brief thoroughly and argue. Some advocates fumble generously at die Bar. Reason : lack of study and preparation of the brief. Such persons remain only as ad hoc lawyers. Be thorough with every aspect of the case, apposite or opposite. Is it not said that it is better to retain a comb even if your head has only scarce hair-growth on it. You should start moving and performing, not merely surviving. Play well in the Court and try to net every (good) point you have. Try to understand the locus of the problem. First, tame your mind, as an untamed mind is dangerous to advocacy. A swimming pool is a sport for one who knows swimming; but for one who does not, it becomes a death-trap.

Your arguments should not be long on facts but short on matter. If you fail to measure time when you argue, your argument is apt to be measureless, also, with no result. Try to stump your opponent with good deliveries. Project yourself by performing better than your opponent, just as you could shorten a line drawn without erasing it, by drawing a bigger line by its side so as to make the original line look smaller. Take time to process your submissions. Do not argue in 'sweaty hate". Argue, galloping thoughts, gradually; provide clarity to the confused. Try to get from the judge undivided attention to you.

The judge, sometimes compelled to sit in suffering silence, ultimately, is to deal with the arguments as a tale of two cases, though only one case is argued by opposing counsel. You should try to hijack the arguments of the opponent. Try, of course, to protect yourself; but not to insult your adversary. Upgrade your relationship with your brethren at the Bar. Respect seniors in the profession. Senior advocates remain a powerful presence at the Bar. You must have the admirable gift for not being provoked. Strive to see the good side of the profession; and, never the other side. Realise the importance of being "Advocate Mr. So-and-so." By protracted discipline, you can achieve anything. Keep in mind the difference between pure steadfastness and sheer stubbornness when you argue. Be steadfast, never stubborn. Be "passionately devoted" to the defence of your client, as John Mortimer QC said. You may hiss, but not bite, like the proverbial snake. To be a great lawyer, you need not look dangerous or fearsome to your opponent. Sing your contentions with head and soul. Try to be a "primal person" in the profession. Behold, and a man of amazing agility; but remember that you cannot equate contempt with courage or insults with independence. Your Original constituency should be the Court. To culture your profession, you should study well; and try to be dignified. Make a bold assertion of your professional duty. Use your faculties of speech, vision, taste and listening to the best of advantage. Jeremy Bentham said : "What the non-advocate is hanged for, the advocate is paid for, and admired." Your effort should not be only to pull the rug from under the feet of the opposing counsel, but to fulfill your duties and obligations to your client and the Court. Do not interrupt either the Court or the opposing counsel.

Interruption is a double-edged weapon. It can be answered only by interruption. And, interruption, is not answering. Do not be dejected for not obtaining centum in all your arguments or briefs. An advocate is paid to argue the point, not to decide it, as David Pannick said.

I should think, today one becomes a lawyer all-on-a-sudden. Our tribe is increasing like baby-boomers. Juniors do not learn under seniors. It is not enough that you come into die profession with an impressive inheritance. Too much will not come too early for a young lawyer. (I take pride in declaring that I have emerged from the shadow of my senior). The difference in years of practice between a senior and a junior, these days, is only a few months. There is no attempt to study the judge. A lawyer has to study the judge as much as, or more than, he studies his brief. A lawyer should try to capture the mood of the Court. Reap your reward by careful advocacy. An ignorant, arrogant and boisterous lawyer is an insult to the profession; and he would find his place in Davy Jones's locker only. Remember, there are sure cases, (sure to succeed or sure to lose), border-line cases and predictably unpredictable cases. Keep in mind the motto: "No ego, no anger, no malice, no greed, no jealousy."

It is said, forbearance can be learnt from a donkey; foresight from an ant; determination from a spider; fidelity from a dog; the virtue of monogamy from birds; and jealousy from lawyers. You should try to prove that the last is not true, by shedding the green-eyed monster. Bear and conquer by patience. Herbert Spencer was probably having lawyers in mind when he coined the expression "survival of the fittest." Do not be disheartened. So long as the adage that "one who is his own lawyer has a fool for his client" is remembered, lawyers would continue to function and exist.

You should be excessively intolerant of slipshod work and irritatingly insistent of pursuing excellence even in tasks which hardly demand it. Maintain a smooth record of consistency in the profession.

An advocate is an officer of court, not a mere mouth-piece of the client; his loyalty is to the law. Do not allow your morale to sag.

If you play your professional game well and carefully, your dice will hit only the ladder, not the snake at all. Be a law-eater advocate. You should culture the profession of law by studying well and trying to be dignified. Avoid unsound or perverse submissions; and thus maintain your riding weight. Try to be a man tuned to the ethics and culture of the law. Emerge as a hero, not a villain.

Do not indulge in competitive servility and sychophancy. A judge's sound is no music. A judge is not a lawyer's care-taker. Recently we perceive the tendency of a built-in institutional antagonism between the Bench and the Bar. The difference between the Bench and the Bar seems to be that between the jailor and the prisoner, though they are under the same roof. The Bench should not be the tormentor of the Bar, or vice versa. The Bench and the Bar should sign a CTBT, I mean, Comprehensive Tussle Ban Treaty.

A lawyer should be an adept in non-legal subjects also. This was indicated by H.D.C. Pepler in "The Devil's Devices." I would like to read Pepler :

                                       "The law the lawyers know about

                                       Is property and land;

                                       But why the leaves are on the trees,

                                       And why the waves disturb the seas,

                                       Why honey is the food of bees,

                                       Why horses have such tender knees,

                                       Why winters come when rivers freeze,

                                       Why Faith is more than what one sees,

                                       And hope survives (lie worst disease,

                                       And Charity is more than these,

                                       They do not understand."

I feel in profound sense that an Advocate should be moulded to perfection; and should be profoundly interested in the upgradation and purity of the profession; and should not abuse the confidence reposed in him by his client.

The legal profession has inherited the highest tradition; it is not, therefore, permissible to follow the lowest professional ethics. The profession is one which can conserve without plundering and create without destroying. The members of the profession must set an example of conduct worthy of emulation. Some lawyers, I regret to say, seem to forget the profession, which is a public profession, and remember only the practice thereof. As observed by Mr. Justice V.R. Krishna Iyer in Bar Council of Maharashtra v. M.V. Dabholkar (AIR 1975 SC 2092), if pathological cases of member misbehaviour occur, the reputation and credibility of the Bar suffer a mayhem. The learned judge observed :

"The Bar is not a private guild, like that of 'barbers, butchers and candlestickmakers' but, by bold contrast, a public institution committed to public justice and pro bono public service. The grant of a monopoly licence to practise law is based on three assumptions: (1) There is a society useful function for the lawyer to perform; (2) the lawyer is a professional person who will perform that function; and (3) his performance as a professional person is regulated by himself and more formally, by the profession as a whole. The central function that the legal profession must perform is nothing less than the administration of justice."

An Advocate practising the law is under a triple obligation, an obligation to his clients to be faithful to them unto the last, an obligation to the profession not to besmirch its name, or injure its credit by anything done by him, and an obligation to the court to be and to remain a dependable part of the machinery through which justice is administered. The profession cannot afford to have a member who fails in keeping to the required standard of conduct. Rules of the profession, verily, are written for lawyers, unlike ghost stories, which are, certainly, not written for ghosts. Adhere to the rifles, and make a mark in the profession, by putting a stamp of great name on everything you do and achieve, so that your name will score fame, as Homer achieved fame by authoring the Iliad. And remember what Aldous Huxley said : "The author of the Ilaid is either Homer or, if not Homer, somebody else of the same name." So retain your sure name.

An Advocate has a duty to execute the business entrusted to him with a reasonable degree of care, skill and dispatch. An Advocate devotes himself to the interests of another at the peril of himself. Vicarious action tempts a man too far from himself. An Advocate should do for others what he is not willing to do for himself. His loyalty is to his client. He has no other master.

Another important command of the profession is that an Advocate shall not advertise himself. Rule 36 in Chapter II of the Bar Council of India Rules lays down that an Advocate shall not solicit work or advertise either directly or indirectly, whether by circulars, advertisements, touts or personal communications. A Full Bench of the Allahabad High Court, comprising Sulaiman, C.J., Thorn and Harris JJ. in In re, (Thirteen) Advocates, Allahabad (reported in AIR 1934 Allahabad 1067), has observed :

"It is a well recognised Rule of etiquette in the legal profession that no attempt should be made to advertise oneself directly or indirectly. Such a course of action tends to lower the dignity of the honourable profession and is undoubtedly akin to touting ............ Advertisements of all forms are considered to be highly improper."

Yet another important aspect is that an advocate should be very careful with his client's money in his hands. He should never feel rich with his client's money. A man's treatment of money is the most decisive test of his character. Put not your trust in money but put your money in trust. It is good to have money and the things that money can buy, but it is good, too, to check up once in a while and make sure that you haven't lost the things that money cannot buy. You cannot hire your client's money. You should never be a money-grubber. Money, certainly, is fortune; but, definitely brings misfortune. I am telling you what you should know, not only what you should hear.

I should advise you to make a fixed deposit of honesty in the profession. Your effort, should be to set up shop at the summit of the profession.

At the end of the day, I should think that the legal profession in a great, glorious, noble profession. And, if there is a rebirth for me, and if I am asked what type of birth I would like to take next, by answer would be; T wish to be reborn a lawyer only.'

I wish to be a lawyer, and little else besides. This should be the motto of a true lawyer.

I should be grateful to the tenacious tolerance of the listening throng.

Thank you, and wish you well, and a formidable future. I also thank the Bar Council of Kerala, the provider of this splendid and glorious opportunity.

Thank you all.

___________________________________________________________________

Footnote:

(Key-note Address delivered by T.P. Kelu Nambiar, as Chief Guest on the occasion of the enrolment of Advocates, on 28-12-1998, at the Bar Council of Kerala Hall).

Environmental Law, Dharma and

Judicial Silence in a 'Secular' Democracy

(Jorg G. Weber (M.A. Soas, London)

Modern Indian environmental jurisprudence represents today a unique and powerful part of the country's highly praised social action litigation. Lawyers and academics are not getting tired of proclaiming the achievements of a new public law rationale which has drifted away from British criminal law strategies and private property principles towards a new legal order focusing on public interest. These same people, however, find difficult to admit that what they vaguely describe as "native instinct" (Dhavan 1992), or traditional factors, are in reality nothing else than the continuing influence of dharmic concepts on society in general, and on the process of Indian law-making in particular.

Since Krishna Iyer's observation, nearly two decades ago, that "dharma is a polemical issue on which judicial silence is the golden rule" (Dhavan 1977, P. 520) the situation has remained basically unchanged. In India, it remains politically incorrect to understand ancient Hindu concepts as a driving force in certain areas of modern litigation. The careful observer may now ask: what do modern environmental laws in India have in common with an antique cultural concept?

Within the last two decades, environmental jurisprudence in India has been developing in a direction significantly different from that of other law systems. While most Western countries continue to rely on a regulatory law paradigm dominated by proprietary interest and economic rationalisation, the modern Indian judiciary relegates individualism, materialism and the desire to dominate nature in a subordinate place. Two factors link to play central role in this multi-level approach to protecting the natural environment while improving the quality of life.

Environmental justice is a sub-category within secular, modern Indian constitutional law and has become a relevant section of public interest litigation. It builts on a new public law rationale which intentionally emphasises the interplay between an individual's duty towards the public at large and the duty of a public authority towards society. This new public law regime reactivates and redefines concepts of nature and applies these along the lines of public interest litigation.

Until recently the role of cultural and spiritual heritage in environmental protection was ignored or actually rejected by official bodies in India. O.P. Dwivedi makes this point when he describes secular India as having a "fear that bringing religion into the environmental movement will threaten objectivity, scientific investigation, professionalism or democratic values...." (Dwivedi, 1993). Nevertheless, recent environmental cases indicate this is not strictly the case.

In the judgment of one of the famous M.C. Mehta cases, the Supreme Court observes:

"... .Our ancestors had known that nature was not subduable and, therefore had made it an obligation for man to surrender to nature and live in tune with it (M.C. Mehta 1992/1, SCC 358)

Are these merely hollow words or are judges timidly looking to ancient Indian concepts of nature and universal order for authority, without mentioning the sources?

A closer look at the vast Sanskrit literature available on the subject makes clear what the Supreme Court Judges meant by living "in tune" with nature. Sanskrit scriptures emphasize repeatedly the intimate relation between human beings and objects of nature. We often find mankind calling-prithvi (earth) as mata (mother),[1]in this way indicating that they are themselves relative to or part of the nature rather than a species which has been given special concession or mastery over other natural elements. According to ancient Sanskrit sources, one form of life promites the welfare of another form of life without consuming it or damaging it. The human is seen as a part of a wider cosmic order, which attracts irreversible responsibility on the individual. Dwivedi, a well known modern Indian ecologist, comes to the conclusion that

"...ancient, Indian environmental ethics shows that man was instructed to maintain harmony with nature and to show reverence for the presence of divinity in nature". (Dwivedi 1987, P. 89)

The above mentioned quotation from the M.C. Mehta judgment indicates very nicely that modern lawyers are well aware of traditional, philosophical ideologies concerning man's role on earth, and further, that they are willing to apply these ideas to modern environmental litigation. However, it remains a sacrilege to express these views directly and openly, and so the reference provided in M.C. Mehta represents a rare example of judicial frankness.

It seems that there are no limits to Indian Judges' inventive genius in order to avoid putative delicate references to ancient Indian philosophical literature.

In Shri. Sachidanand Pandey (AIR 1987 SC 1109), the well known Supreme Court Justice Chinnappa Reddy quoted extensively the famous words of a North American Indian Chief, in order to demonstrate the holistic ideology which Indian courts adopted to determine man's place in the macrocosmic order of natural environment. The similarities between the North American Indian leader's lecture about the limits of human control over the world, and ancient South Asian models developed around the same matters are striking. But why, then, do lawyers in India feel compelled to be evasive and borrow the philosophical framework from an ethnic group living more than twelve thousand miles away, when their own cultural heritage could provide them with sufficient ideological background?

It is not often acknowledged that Indian courts actually apply modern law within the guidelines of an ancient body of thought. A closer examination to environmental judgments makes this quite obvious.

In this fast growing chapter of social action litigation, judges have adopted the tough and uncompromising point of view that the preservation of natural resources and protection of the environment plays a more important role than commercial interests or economic development. The Indian judiciary does not even shy away from colliding with the business interests of factory owners and closing their production centers down, if necessary, a prospect that would horrify many western industry bosses. By putting the constitutional right to life higher than the right to work, Indian Judges take a position inconceivable in a similar discussion in the European political and economical context.

In Madhavi v. Thilakan (Crl. LJ 1989, 499) the learned Judge held: "To say that a workshop or factory should not be closed down, as it provides livelihood to some persons unmindful of the consequences of others, would be to say the untenable".

A number of other cases similarly indicate that Indian Judges continue to reinforce traditional values about the relationship of nature and man in modern environmental jurisprudence, over business and market-oriented interests. Whether the Supreme Court orders to close a polluting factory (M.C. Mehta III, 1987 SCC 463) or a High Court prohibits the Government from constructing houses on a piece of land previously allocated for a recreational park (T. Damodhar AIR 1987 SCC 674); the tendency away from the dictates of a common law doctrine of absolute ownership and unlimited right of disposal of private spaces, and towards an understanding of nature as a part of an universal order which forces the individual to be concerned about his environment can be clearly inferred. The result of this is that in environmental litigation, Indian Judges do not rely solely on a western concept of external sanctions, but instead focus in a persuasive and pedagogic manner on the educational aspect of the law which aims at reinforcing environmental consciousness. In this way the Courts include the individual in a system where every single person has a duty to protect natural resources and to care consciously about the well-being of his environment. In D.D. Vyas (AIR 1993 All. 57) the Allahabad High Court held:

"The last clause (j) of Art.51-A of the Constitution further mandates that it shall be the duty of every citizen of India to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement".

This interesting interpretation of Art.51-A(j) of the Indian Constitution makes it clear that judges do not see society as a mass of ignorant and irresponsible people who have to be kept within reasonable limits by the means of strict control and punishment by the State. Rather, they are individuals who can very well contribute to the well being of the community as a whole. Besides that, Courts appear to recognise that justice begins with the approval of one's own conscience and not in front of a bench.

But when judges appeal to the "duty of the citizens not only to protect but also to improve the environment" (Kinki Devi AIR 1988 HP 4) in environmental litigation, do they just "talk big" to please western readers of Indian law reports and to demonstrate their eloquence? Or are western observers simply not wanting to admit what Indian lawyers are similarly wary speaking out about openly, namely that these recurring references to individual conscience and duty are nothing less than references to the welt known concept of dharma?

A closer look at the secondary literature shows the insecurity prevalent even among Indologists when it comes to defining dharma as a complex ordering network in a historical context. Both dharma and sometimes artha. have been translated as "law" as if it can be represented as a European-style system of law consisting of written rules of conduct known to everybody and being enforced by the State. Rather than in this way, sometimes it is seen as a more or less abstract, separate term in the respective textual context. But dharma is neither the Sanskrit word for law nor does any textual statement about dharma have absolute value. Dharma as a concept (as well as for example vyavahara) includes "law", but its meaning goes far beyond just that. As an established component of the Hindu world view it is a concept with meaning for everybody which has for its all-embracing characteristics to be illuminated by the light of a conceptional general framework. Menski describes dharma as

"comprising all levels of existence, from the macrocosmic to the microcosmic. But thus placing the Hindu individual into a complex network of cosmic interrelationships, any human activity, including inaction becomes perceived as to have potentially wide reaching consequences". (Menski, 1996).

The continuous overemphasis on passages like Manusmrti 2.6 (see Lingat 1973) makes clear why Indologists and lawyers have lingering problems seeing dharma as relevant for modern Indian environmental litigation. Is it really realistic to assume that an individual consults vedic texts before activating his conscience? It is perhaps more logical to turn the sequence 'sruti-smrti-sadacara-atmanastusti upside down and to ask for the sources of dharma beginning with atmanastusti (See Menski 1996).

It is really a distortion of reality to portray ancient Indian texts as having more authority and relevance for the average Hindu than the examination of one's conscience. Observation of daily life indicates that still today atmanastusti remains primary, leaving relatively little room for "book law".

To return to Indian environmental cases and judges' appeal to the duty of citizen to protect and improve the environment, it seems to be more than coincidental that modern jurisdiction shows that a genuine effort to convince the individual of its important role as upholder of law. One might see this simply as a kind of civic education, but a closer look shows that judges try in reality to reestablish principles of dharmic world view at grass root level. Indian courts seem to have recognised, much faster than most Indologists, that the osmosis between understanding law as part of an all-embracing order beginning with atmanastusti and its application in a modern jurisdiction at the same time relying on indigenous concepts of nature as a part of cosmic interrelationships, might on the long run be much more successful than Western legal systems' philosoplhy of positive law.

Why then this timid paraphrasing about the complete change in India's jurisprudential perspective, limiting it to a mere product of secular, modern society, when reality clearly shows that religion remains a dominant factor in the whole continent, influencing domestic affairs, as well as big politics? Either Indologists do not want to hear that the examination of individual conscience is relevant to the genesis of Indian concepts of law, or lawyers and academics know how to keep quiet. The careful observer should, however, prick up his ears, when a prominent legal expert points out that:

"the question concerning environmental problems is not how best to punish someone, but how to manage the society in the best way so that maximal development is attained with nil or minimal environmental underdevelopment........" (Singh 1986)

Here Singh argues resolutions in environmental law should not be sought by means of polarising the state as regulator and the citizen as users against each other. By showing the ruler or State, as part of a comprehensive network of mutual interdependences he gives us another interesting indication for the dharmic orientation of modern India environmental litigation. When dharma is described as an all embracing system of cosmic interrelationships, which has meaning for everybody, then the governing body must logically be included in it.

A look at the Sanskrit scriptures makes it clear that the raja (king) in ancient India occupied an elevated position in society, but actually had no mechanisms to enforce his own law. His role was to act as a kind of supervisor or guardian of what his people perceived to their law. The ideal ruler, as described for instance in the Ramayana, was primarily, like everybody else, subjected to atmanastusti.[2]

Out of this experience, he was then in a position to enable his people to follow their own individual dharma and to remain thereby within the ambit of dharma in its universal conception. In this way the raja acted as a, good example of model behavior (Sadacara). as well as "public agent" (Menski 1996). He also might intervene by means of harash punishment, when self control proves ineffective.

Modern Indian Courts appear to be taking up the notion of the ruler as supervisor and upholder of dharma. In Rural Litigation (AIR 1988 SC 2187) the Judges held:

"The Court expects the Union of India to balance these two aspects and place on record its stand not as a party to the litigation but as a protector of the environment in discharge of its statutory and social obligation for the purpose of consideration of the court by way of assisting the court in disposing the manner in issue".

In this case, the Supreme Court very clearly extended its persuasive and pedagogic ambitions on to the State Government of Uttar Pradesh, a public authority, reminding it about its duties towards society. Judiciary in this context not only controls state power, as it does in Western countries, but goes further to point out that the legislature should realise its role as a model as integral part of a balanced society.

In environmental litigation - but not solely in this area - Indian Judges take the initiative and use their power to remind the State of its dharma and to not limit themselves to executive functions. This concern is seen as a priority when the Bombay High Court notes that

"........Such directions.........are issued so as to compel the statutory bodies including the state to stand by the citizens and do their public laws duty so that the purposes of public expressly enacted are not frustrated...." (Kinkri Devi, AIR 1986 Bom.136) "

To sum up, it can be said that judicial activism in Indian environmental litigation is not only an attempt to control damages caused by economic growth and industrialization, but to reawake a sort of society which places the individual as well as public authorities inside a balanced universal network of dependencies and duties.

Most observers overlook the fact that awareness of ancient concepts of regulating society and indigenous models for protecting nature in a wider sense have been put to productive use in the development of a modern regime of environmental regulation in India. On the one head, Indologists demonstrate once again that they have not learned anything since Buhler's days and are still more interested in Sanskrit text-oriented hairsplitting than in recognising social realities and the role of the individual in ancient Indian "law systems." On the other hand, India's self-declared Western orientated elite conceals the impact of indigenous alternatives on environmental jurisprudence, because they seem to be afraid of dharma oriented society where also the establishment would have to subordinate business and consumer interests to public welfare.

While Indologists' mis- and over interpretations of Sanskrit texts can be regarded as a mere unpleasant part of the discussion, the opposition of sectors of the Indian upper middle class to the power of courts in public interest litigation, and therefore, also in environmental cases, should be reason enough to raise alarm.

The present Government's move to reign in PIL runs not just counter to so called democratic precepts, but could deprive a major part of India's vast population of its right to claim a clean environment.

Once can only hope that the path adopted by the Supreme Court will continue to be taken in the future. To reply on ancient concepts about nature and society in modern Indian environmental jurisprudence does not mean to be reactionary or misogynist, but to avoid errors that were made during the "developing process" of Western countries. Indian courts have realised that the reawakening of self control as a first instance mechanism at all levels of the society could prevent mankind of destroying his habitat of selfish interests.

___________________________________________________________________

Foot Notes:

1. See Mahabharata, Moksadharmaparva 184,29.

2. See Kinsley 1982, p.27.

BIBLIOGRAPHY

Abraham, C.M. (1991): "The Indian Judiciary and the development of environmental law". In: Vol. II No.1 South Asia Research, pp 61-70.

Abraham, CM. (1995): Environmental justice in India. London: SOAS, PhD Thesis.

Battacharya, D.K. (1990): Ecology and social formation in ancient history. Calcutta: K.P. Bagchi.

Calicot, J. Baird (1991): Nature in Asian traditions Of thought: Essays in environmental philosophy. New Delhi.

Chiba, Masaji (1986): Asian indigenous law in interaction with received law. London, KPI.

Dhavan, Rajeev (1977): The Supreme Court of India: a socio legal critique of its juristic exploration. Bombay.

Dhavan, Rajeev (1992): "Dharmasastra and modern Indian Society: a preliminary exploration" In: Vol.34, Journal of the Indian Law Institute.

Diwan, Paras (ed.) (1987): Environmental protection: Problems, policy, administration, law. New Delhi: Deep & Deep.

Dwivedi, O.P. (1993): "Global Dharma to the environment" In: Vol.39, The Indian Journal of Public Administration, p.566-576.

Jha, V.N. (ed.) (1991): Proceedings of the National Seminar or Environmental Awareness Reflected in Sanskrit Literature. Poona.

Kinsley, David R. (1982): Hinduism: A cultural perspective. New Jersey.

Lingat, Robert (1973): The classical law of India. Berkeley University Press.

Singh, Chhatrapati (1986): Law from anarchy to Utopia. New Delhi.

Singh, Chhatrapati (1990): "Dharmasastra & contemporary jurisprudence" In: Journal of the Indian Law Justice, pp 179-188.

Purohit S.H. (1994): Ancient Indian Legal Philosophy. New Delhi: Deep & Deep.

Ignorance of Law Does not Excuse, But Suppression Does - A Comment on 1995 (2) KLT 443

(V. Philip Mathews, Advocate, High Court of Kerala)

The Net of Law

                                                                                                     - James Jefferey Roche

              "The net of law is spread so wide

              No sinner from its sweep may hide

              Its meshes are so fine and strong

              They take in every child of wrong

              O Wondrous Web of mystery!

              Big fish alone escape from thee!"

Ignorance of law is not an excuse howsoever poor and illiterate you are, but suppression of law may excuse, if you are rich and literate. Even a most salutory provision in the Criminal Procedure Code Section 357(3) - intended to provide succour to the victims can provide succour to the accused and permit him to walk happily out of the bars. A few coins in hand thus proves better then stray principles behind the bush. The decision reported in 1995 (2) KLT 443 where the Hon'ble High Court modified the sentence of the accused convicted u/Ss.307 and 447 IPC by levying a fine of Rs.1 lakh and invoking Section 357(3) of Cr. P.C. is against the clear provisions of law contained in Section 307 IPC and 320 and 482 of the Cr. P.C. Though the intention of the High Court is laudable, the net effect of it is difficult to be appreciated. It is respectfully submitted that the decision is a step backward in our criminal justice system.

"Section 357(3) Cr. P.C. is an important provision but courts have rarely invoked it. Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgments of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of the accused. It may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition there to" - Harikishan & State of Haryana v. Sukhbir Singh, AIR 1988 SC 2127. The Supreme Court has invoked this provision in many cases - Balraj v. State of U.P. (1994) 4 SCC 29, Dr. Jacob George v. State of Kerala (1994) 3 SCC 430, Harisingh v. Sukhbir Singh 1988 SCC (Cri.) 984, Sarwas Singh v. State of Punjab, AIR 1978 SC 1525 etc. In all the above cases the compensation awarded to -the victim was in addition to the punishment to the accused. They were not a device to reduce punishment or to compound the offence. However there are instances where Supreme Court has compounded non-compoundable offences. In Mahesh v. State, AIR 1988 SC 2111 the Supreme Court compounded an offence u/S.307 IPC. (See also (1991) 4 SCC 584). Some of the High Courts have resorted to Section 482 Cr. P.C. when Section 320 Cr. P.C. bars compounding. Thus in Thathapadi v. State, 1991 Cri. L.J. 749 the Andhra Pradesh High Court compounded an offence punishable u/S.489A IPC : "Keeping in view the larger interest of parties and to secure and of justice." This was followed in 1992 Cri. L.J. 273 (Raj.) and 1992 Cri. L.J. 2106 (Bom.).

Resort to inherent powers u/S.482 Cr. P.C. when S.320 or any other particular provision bars an act is contrary to law and achieving something by suppressing law. Section 482 Cr. P.C. is not to be invoked in respect of any matter covered by the specific provisions of Cr. P.C. and if its exercise would be inconsistent with any the specific provisions of the Code 1958 (SCR) 1226; AIR 1967 SC 286; AIR 1979 SC 87; AIR 1960 SC 866; AIR 1977 SC 1323.

It is respectfully submitted that the decision reported in 1995 (2) KLT 443 does not lay down the correct law. Section 307 IPC says  "...............shall be punished with imprisonment...............shall also be liable to fine................." 307 IPC is not compoundable u/s 320 Cr. P.C. 482 Cr. P.C. cannot be invoked to support the decision since there are cleat provisions of law. When I say this I am conscious of the fact that judges do and must legislate "but they could do so only interstitially, they are confined from molar to molecular Motions." - Southern Pacific Co. v. Jensen (1917) 244. US 205 at 222, Per Holmes, J. (Referred to in AIR 1995 A.P. 274 at 285). When the sovereigns of our souls allow suppression of law, soul of the nation fallens, flounders and nearly founders. Only an outright optimist or one gifted with self deception would believe that this ruling would not be misused (or even abused) in future. The decision is against all theories of punishment. It has no element of retribution, prevention, deterrence or reformation. The decision also create two classes of accused - those who can afford a heavy compensation/fine and those who cannot. Whereas the former is set free, the latter is put behind bars. This amounts to discrimination and .rating equals unequally. A judicial decision or order which violates Fundamental rights is void, even though it will be binding on the parties, so long as it is not set aside in appropriate proceedings - AIR 1974 SC 1471, AIR 1988 SC 1531. Though remedy under Article 32 is not available where the offending court is the Supreme Court itself, the court in exercise of its inherent jurisdiction would review and set aside a previous direction given by the court which offended against a fundamental right.

Now the Hon'ble High Court itself has come forward in Shibu v. State of Kerala, 1995 (2) KLT 912 to undo the wrong committed in Joshi v. Slate of Kerala, 1995 (2) KLT 443. In this later decision the High Court has taken note of the fact that sentence of imprisonment for the offence under Sec. 3071.P.C. is mandatory. It was held that 357 Cr. P.C. cannot be invoked in derogation of or In substitution of mandatory jail sentence provided in 307 IPC. The decision reported in 1995 (2) K.L.T. 443 has been partly overruled.