lrjyman N aplpÀ½lp

(Extracted From 2005 (1) KLT Journal Section Page 56)

(Article by P.G. Rajagopalan, Advocate, Kochi)

ta FgpXnb ZpjvIcamb hm¡pIfpsS AÀ°w F´msW¶v hmb\¡mÀ hnNmcn¡p ¶pImhpw. AXp ]n¶oSv ]dbmw.

Hcp k_v tImSXnbn \ymbm[n]\pw A`n`mjI·mcpw X½n \S¶ kwhmZw Xmsg hnhcn¡p¶p. Cu kwhmZw Rm³ t\cn«v tI«XÃ. AXn ]s¦Sp¯ Hcp A`n`mjI³ ]dª AdnhmWv.

lÀÖn¡mcsâ `mKw A`n`mjI³ Xsâ I£n _m¦v Kmc³Un sImSp¡msa¶pw AXpsImI \S]Sn \nÀ¯nsh¡Wsa¶pw At]£n¨p. \ymbm[n]\v Xr]vXnbmbnÃ. _m¦v s]mfnªpt]mbm F´mWp sN¿pI F¶mWv \ymbm[n]sâ kwibw. k_v tImSXn `qI¼wsImIv XIÀ¶p Xcn¸Wambm F´mWp sN¿pI F¶mWv A`n`mjIsâ adptNmZyw. CuamXncn km¦Â]nI§ÄsImIà tIÊv \nÀ®bnt¡IsX¶pw aäpw hmZn¨p. At¸mÄ tImSXnbn ap³\ncbn \c¨v {]mbw tXm¶n¡p¶ Hcp A`n`mjI³ Ccn¸pImbncp¶p. At±lt¯mSp tNmZn¨t¸mÄ, _m¦v Kmc³Un kzoIcn¡m¯hsc DSs\ {`m´meb¯nte¡v Ab¡Wsa¶v kp{]owtImSXnbpsS Hcp Ac Uk³ hn[n\ymb§Ä DsI¶p ]dªp. hmZw tI«Xn\ptijw \ymbm[n]³ hn[n ]dbphm³ tIÊv amänsh¨p.

Cu kwhmZw tI«t¸mÄ F\n¡v HmÀ½ h¶Xv `KhZvKoXbnse Ahkm\ `mKs¯ tÇmIZzµ§fn H¶mWv:

“cmP³ kwkvarXy kwkvarXy kwhmZanaaÛpXw

tIihmÀÖ\tbm:]pWyw lrjyman N aplpÀ½lp”.

almcmPmth, BÝcyIcambpw ]pWyambpÅ tIihmÀÖp\ kwhmZs¯ XpSÀ¨bmbn kvacn¨n«v ]nt¶bpw ]nt¶bpw Rm³ kt´mjs¯ {]m]n¡p¶p. lrjyman N aplpÀ½lp; Rm³ ]nt¶bpw ]nt¶bpw kt´mjn¡p¶p. Aev]w ]mTt`Zt¯mSpIqSn; Rm³ ]nt¶bpw ]nt¶bpw Nncn¡p¶p.

Reflections on C.J.I.’s Speech:

Going Beyond Judicial Appointments for Clearance of Cases

(By Kaleeswaram Raj, Advocate, Supreme Court & Kerala High Court)

Years ago, Justice Krishna Iyer was received by almost all the Judges of the Allahabad High Court. Looking at the huge crowd of around 100 Judges, Justice Iyer wondered “this is not court; this is population”. But the Allahabad High Court had the highest average pendency of case in India of 1337 days, according to a study by DAKSH, a Bengaluru based organisation. The fact is that even when the biggest High Court in India had 90 Judges, in January 2014, it was running short of 70.

The Chief Justice of India (CJI) had reason to be disgruntled when 434 vacancies of High Court Judges remained unfilled. The phenomenal docket explosion in the Supreme Court also is perturbing. The CJI said that as of now, there are 60,260 cases pending before the Supreme Court. The High Courts in India, as a whole, have an incredible 38.68 lakhs of cases awaiting disposal. The backlog of all courts including the lower courts escalates to 3 crores. The subordinate judiciary has 4580 vacancies across the country, awaiting the umpires.

The Law Commission’s recommendation (1987) to increase the Judges’ strength is honoured only in its breach. The resolution demanding appointment of retired Judges of the High Court for clearing the cases by invoking Article 224A of the Constitution also is remarkable.

The C.J.I. was concerned only with Judges’ strength which is only one constituent of the court performance index, a concept now well accepted worldwide. Maria Dakolias, in a well-researched paper (Yale Human Rights and Development Journal, Vol.2, Issue 1, Article 2, 18.2.2014) puts it vividly: “judicial administration is measured by the concept of efficiency, access, fairness, public trust and judicial independence.” Judges’ strength is not the sole or ultimate criterion that determines the quality of the institution. Maria’s study tells that only France and Peru have a clearance rate of more than 100% which means that they “resolve more cases per year than are filed.” The heaviest workload is borne by the courts in Chile where each Judge has to decide 5000 cases per year. Interestingly, “Chile has an impressive clearance rate” despite the per capita burden on the bench, the study says. The menace of docket explosion finds an answer in her paper which has a strong empirical foundation –"If the courts are well managed, the increase in filings may even result in cases being resolved more quickly”-a lesson that India needs to learn.

The Judges have the primary role in judicial management.  Questions about quality need not be always resolved by quantitative inputs to the Bench. There were instances where at least a few Judges indefinitely delayed pronouncement of judgments after the final hearing.  The Supreme Court had to deprecate such “practice” in Anil Rai v. State of Bihar (2001). Also, there were illustrative cases where a Judge had authored only seven reported judgments over a period of three and half years. Such individual aberrations obviously pose serious questions relating to quality rather than quantity.

Judicial appointments

 Quality is ensured by way of objectivity, independence and transparency in the process of judicial appointments. A fair appointment process is a condition precedent for a passable and efficient judiciary in any working democracy. India has a failed system for appointment of Judges which neither the court nor the Government could effectively rectify. The National Judicial Appointment Commission(N.J.A.C.) judgment of 16.10.2015 has struck down the 99th amendment to the Constitution together with the NJAC Act and revived the ill-famous collegium system where, again in the words of Justice Krishna Iyer,  “no principle is laid down, no investigation is made, and a sort of anarchy prevails.”(Judicial Appointments and Disappointments, 2012).

The C.J.I. did not lament over the slippage in the appointment process about which the entire nation had expressed concern during the post-decisional hearing in the NJAC case. In spite of the initial promises for reforms, when the real issues were placed before the Apex Court by way of legal submissions and public opinion that ran into about 11,500 pages, the Court chose to revive status quo ante with some cosmetic rhetoric on reformation. The tall talk on eligibility practically got reduced to prescription of age. The high decibel demand for transparency just meant publication of judicial vacancies in the official website of the courts without even providing any opportunity to the ordinary mortals in the system even to apply. The Secretariat, which the legal fraternity fantasised as a prestigious establishment for merit evaluation will be brought down to a data collection centre due to the undemocratic NJAC judgments (2015).

The tussle between the judiciary and the executive on account of the unwillingness on either side to give way to a better and independent appointment commission continues to be a tragedy in Indian political and constitutional history. At the bottom-line of the Chief Justice’s speech, one may even find a judiciary, which is less assertive and less independent. This predicament is all the more disturbing given the capitalist characteristics prevailing in the Indian courts, especially in the higher judiciary.

The CJI spoke less about the common man who is fenced out of the judicial system. On reading Nick Robinson and Marc Galanter, one would be baffled to find how India’s “grand advocates” in the Apex Court and the High Courts charge the litigants. Exorbitant money is required for placing a ‘star lawyer’ with a ‘face value’ in the Supreme Court. On the other end, about one third of the litigants are unable to enjoy bail due to financial or related constraints.

In a classic instance of investigative journalism, the Reuters established that the entire legal system in the U S Supreme Court is dominated by a handful of elite lawyers mainly representing the corporate. (The Echo  Chamber, 2014.)

We follow suit.  And no tears!

(This article was originally published in Deccan Herald dated 28.4.2016).

A Real Judge Retires

(By K.Ramakumar, Senior Advocate, High Court of Kerala)

Sri Justice Bhavadasan, one of the most upright and popular Judges of our High Court (High Court can boast of some excellent Judges now) is demitting office after an illustrious career on the Bench. Though the theory of indispensability is irrelevant for any institution, a real loss is occurring to the High Court of Kerala in his retirement at a time when the High Court needs more of his class and caliber.

He had combined in himself character with courage, politeness with sternness, courtesy with commitment and suavity with sturdiness. He was endowed with a phlegmatic temperament which made him an ideal Judge. There was no over-bearing in his court at all. He had no necessity to engage himself in public relation exercises as he neither suffered from any inflated sense of self importance nor inferiority complex. His dignified silence was more eloquent than televised gaffes. He had no craze or craving for sound amplifiers or shining spotlights. Media buzz could never deter him as is evident from one of his noted judgments in which he boldly declared that the allegations of “Sthree Peedanam” were totally unfounded, adopting the acclaimed “amidst the clash of arms” attitude evolved by Lord Atkin. He maintained safe aloofness but all the same friendly, sociable and accessible to all sections of the Bar. He gave respect and reaped back respect with compound interest. Most of the time during his tenure, he dealt with Civil cases, an uncared for branch with even the overactive Media evincing no interest in it.

Though he was not given his due in the right time, he took it in its stride and was content without grumble, adjusting himself to the stark reality that no Judge can earn the income of a successful Lawyer, possess powers of the Politicians and preserve the privileges of a Judge, all at the same time. This is because he had abiding faith in the Almighty.

He carries along with him the regards, the respect and the reverence of the Lawyer community which now is forced to thrive on unmerited money disabled to give any Quid Pro Quo to the hapless and helpless litigants for whom justice has become a distant mirage.

Non Compos Mentis…..

(By P. Deepak, Advocate, High Court of Kerala)

‘The chickens are coming home to roost’, chuckled the old counsel hoarsely as he sidled into the vacant chair beside the reclining figure of his junior in the back row of the near empty court hall. The old man glanced sideways at the lifeless form of his protégé and sighed. He knew that his words were wasted on the young man who was in a state of absolute repose. The old man was in two minds. Undying memories of his own long nights on the tiles and of the chastening mornings that inevitably followed them reminded him that the young man was in the throes of a mortal hangover and rousing him would be far from advisable. Yet, the words in his mouth jostled for utterance and he could contain them no longer. Self-gratification triumphed nostalgia and he prodded the young man in the latter’s lower ribs with the folded newspaper. The result was as explosive as it was anticipated. Recoiling from the recesses of his chair and clutching his head with both hands the young counsel turned a pair of glazed eyes on his insensitive prodder. Choicest expletives unlearnt at his mother’s knee died away without finding speech when his eyes identified the prodder to be none other than his senior and mentor. A near thing, he thought.  

‘I said the chickens are coming home to roost. Read this.’ the old man repeated thrusting the newspaper under the young man’s nose. ‘What is this dyed-in-the wool vegan muttering about chicken roast at 10.30 in the morning?’ wondered the young man. Misgivings about the state of his mentor’s mental faculties however melted away as his eyes rested on a photograph in the spread out newssheet. It was the photograph of a churlish looking judge in his mid-fifties. The towering spires of a red-hued court complex could be seen in the backdrop. Seeing the deep-set eyes scowling into the void the young man was reminded of sketches of certain unhinged characters from the works of Dostoyevsky and other Russian masters. The young counsel hastily read the article that accompanied the photograph and turned around to meet his senior’s gaze. A wry smile played at the edges of the old man’s lips as he impersonated Mark Antony…’The evil that men do lives after them."

Even as the old counsel was beginning to unravel the folds of the newspaper much like the shrouds from Caesar’s mutilated corpse and continue with his oration he was interrupted by the sight of a long retinue of fawning counsel and media personnel trailing a fast paced man clad in starched whites with an imbecilic grin plastered on his face. The old counsel recognized the man as his bumbling former junior who had wisely traded the black gown for white khadi. ‘Sir, I need your blessings. The party has nominated me again. I am seeking reelection…’ Quickly suppressing a shudder the old counsel wished his old pupil all luck at the hustings and turned to face his present junior whose starry eyes were enviously following his predecessor.

‘Now, tell me young man’, quipped the old counsel succeeding in getting his junior’s attention ‘Why should a legislator, the law-maker, be treated any differently from a judge, who merely interprets the law?’ Pointing his finger at the departing legislator the old man continued ‘Now, if that man there started to clutch at imaginary straws in his hair and file complaints before the local police under the Prevention of Cruelty to Animals Act against the Honorable Speaker and other Honorable Members of the House for not endorsing his private bill for providing free noon meals at the expense of the State Exchequer to all the stray dogs in the State would he not be inviting disqualification under Article 191(1) of the Constitution?’ With a mischievous twinkle animating his eyes the old counsel asked his junior friend ‘Would it not be an instance of “non compos mentis”?

Sounding to impress his senior the young counsel interjected hastily“Surely, a sitting legislator or an aspiring one cannot be disqualified on the ground of “unsound mind” unless he is so declared by a competent court. Correct? ’ The old counsel was plainly impressed with his protégé. He continued in a provocative vein ‘But who will watch the watchmen? Did the Founding Fathers who authored Articles 191 & 105 of the Constitution fall prey to a cassus omissus when it came to Articles 124 & 217? Or, did they lightly assume that surviving ten years as an advocate of a High Court was adequate proof of continued life-long sanity?’ Resting his gaze on the photograph of the judge in the news report the old counsel gave a snort of patent disapproval. ‘The day is not far away when one of the grounds taken in a memorandum of appeal to impugn a judgment would invariably be that the learned judge was not in his right senses while rendering the judgment.’ The young counsel could not suppress a grin as he listened to his senior’s doomsday rhetoric. It reminded him of the last limb of Section 12 of the Contract Act and the foreseeable ‘ground’ of a futuristic appeal rose before him…’‘The learned single judge, a person who is usually of sound mind, but occasionally of unsound mind, rendered the impugned judgment when he was of unsound mind’.  Thanks to the man in the photograph the contours of an appeal were fast blurring from sight.

‘Maybe all that was required was not a NJAC but a PMB’, the old counsel chuckled again. ‘PMB? What do you mean by PMB?’ the young man enquired of his senior. ‘A “Permanent Medical Board” having Constitutional imprimatur to undertake periodical medical examinations of the robed brethren to ensure that a “sound mind” is coterminous with the length of their respective tenures. Overt manifestations of unsoundness can be brought to the notice of the PMB and the concerned judge relieved of all work till the all-clear is sounded by the Board’ the old man concluded.

‘What about the constitution of the PMB’ enquired the young man. ‘Lets leave that to the wisdom of the legislature……….two eminent psychiatrists…undoubtedly….,’ the old man’s guffaw resounded through the court hall as he rose to leave.

Permanent Injunction in Relation to A Land Granted against
A Defendant can be Executed against the Assignee of the Defendant

S.146, Order XXI Rule 16, Order XXI Rule 32 of C.P.C. & S.52 of T.P. Act.

(By Neenu Pavithran, Advocate, High Court of Kerala, Ernakulam.)

1. A permanent injunction against a defendant restraining him from doing or not doing anything in relation to his immovable property runs with the land and the assignee from the defendant is also bound by the said covenant.

2. Section 146 C.P.C. runs as follows:-

146. Proceedings by or against representatives.--Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.

3. Generally a decree for prohibition restraining a person from doing something  is a personal one and not an order in rem.

4. However, when the decree restrains a defendant/judgment debtor from doing something in his own land to the detriment of the plaintiff decree holder and in derogation of the right claim by defendant/judgment debtor to enjoy his own property as an owner, then in such a case the decree should not be understood as merely personal and not binding on the representative or assignee of the judgment debtor/defendant in relation the property in respect of which it is obtained.

5. Even if, it cannot be considered as a covenant running with the land, under Section 52 of the Transfer of Property Act the principle of lis pendens will apply; and therefore that decree for injunction could be enforced against the legal representatives or assignees of the defendant/judgment debtor as provided in Order XXI Rule 32 of C.P.C.

6. In this connection, the Rule enshrined in Section 146 of C.P.C. which is extracted above, meets such a situation.As His Lordship P.K. Balasubramanian in his researched judgment recorded in 1997 (1) KLT 464 = AIR 1997 Ker. 249 [Chothy Theyyathan v. John Thomas] has gone into this aspect and has detailed the scope and ambit of Section 146 of C.P.C.. His Lordship has relied on earlier decisions of Kerala High Court and that of Supreme Court and has dissented from of Karnataka High Court.

7. 1997 (1) KLT 464 mentioned above deals with a case in which a decree has been passed restraining judgment debtor from his property, can be executed against the assignee of the judgment debtor. Fresh suit by the decree holder against the assignee of the judgment debtor is not required.

8. Order XXI Rule 16 does not affect Section 146 C.P.C. (AIR 1989 Raj. 23 at
page 24).

9. The Karnataka High Court has reversed its earlier view and has ruled that if injunction relates to doing or not doing something in property that is subject matter of the suit, then that will be binding not only against judgment debtor but also to those who claim through him or under him. (2014 (4) CCC 335 Kar. H.C. - Gouri v. Prabha Adiga). The Karnataka HC has followed Kerala HC decision 1997 (1) KLT 464.