Law and Commonsense*

(By P. Chandrasekhar, Advocate, Attorneys Alliance, Law Firm, Ernakulam)

Bogdan Barbulescu is a Romanian citizen. He was an Engineer in a private company in Bucharest, Romania. The company sent him out of employment for violating company’s internal regulation. The regulation had prohibited use of company’s computer and internet account for private communications. The company had monitored use of its computer and internet account by Barbulescu and found that he had been misusing them for chatting with his brother and fiancee. The action of Barbulescu against the company failed in the local courts in Romania. He therefore moved European Human Rights Court (ECHR) on the ground that his right to privacy and family life protected under European Human Rights Convention had been infringed. The ECHR found nothing wrong with the decision of the local courts1. Next day, an English newspaper, Daily Mirror, carried a news report: “Your Boss can now officially monitor your WhatsApp messages”2. That was not what ECHR had exactly said. What the Court said was that the local courts having struck a fair balance between the right to privacy and family life of the applicant and the interest of the company, the decision did not warrant interference. Apparently, the company had monitored the conversations of the employee with his consent and approval and it was necessary to do so because the employee had denied having used the company’s computer and internet account for private conversations. The decision of the local courts had satisfied proportionality test and there was nothing the European Human Rights Court could do about it. Obviously, the newspaper had depicted a totally unrealistic picture of decision of the European Human Rights Court giving a wrong impression about it and sending shock waves among the workers and employees working in Europe. It was not only casual but also irresponsible way of reporting a judicial decision thinking that law is mere commonsense. It would appear that by passage of time, at least a section of the global media has shifted its attitude from ‘truth seeking traditional journalism’ to ‘sensationalizing tableau journalism’.

Apparently, a section of the local media has also been afflicted with the unethical attitude mentioned above. On 29th January, 2016 a daily English Newspaper having wide circulation in Kerala reported: “No police case against Kerala C.M. in solar scam, says High Court”3. The reference was to an interim order of the Kerala High Court temporarily suspending the order of Vigilance Court, Thrissur. Vigilance Court had in exercise of its power under Section 156(3) of the Code of Criminal Procedure, 1973 (Cr.P.C.) had directed the Director of Vigilance and Anti-Corruption Beareau to investigate a complaint against the Chief Minister and Electricity Minister of Kerala. The Vigilance Court did so mechanically without application of mind stating that its duty in such matters was that of a ‘post office’. The Vigilance Judge, obviously, adopted a casual commonsensical approach, perhaps on the presumptive premise that his decision based on varied and vast experience as a trial judge could not go wrong. The decision of the Vigilance Judge had apparently been made without having regard to the law laid by the Supreme Court and the Kerala High Court in the matter. In P.Sirajuddin v. State of Madras4 Supreme Court said that before a public servant is charged with act of dishonesty or misconduct and first information is lodged against him there must be a suitable preliminary enquiry into the allegation by a responsible officer. This view has subsequently been reiterated by a Constitution Bench of the Supreme Court in Lalitha Kumari v. Government of U.P.5 . The Supreme Court had pointed out that lodging of a report against a person, especially one who occupies top position in the Government, even if baseless, would do incalculable harm not only to the officer but also to the department. The preliminary enquiry is to ensure that there are materials to satisfy the conscience of the court that there is prima facie truth in the allegations in the complaint. The decision in Sirajuddin has subsequently been followed by the Supreme Court in Sashikant v. C.B.I.6 and in Ashok Tshering Bhutia v. State of Sikkim 7 In K.Mohandas v. Enquiry Commissioner  8 a Division Bench of Kerala High Court relied on the decisions of the Supreme Court in Sirajuddin and in Secretary, Rural Engineering Services, U.P v. Sahngoo Ram Arya 9 and said that right to life under Article 21 of the Constitution of India includes the right of a person to live without being hounded by the police to find out whether he had committed any offence. The Division Bench also held that in the light of the directions of the Supreme Court the Vigilance Court cannot simply act as ‘post office’ and issue, without proper application of mind, direction to the vigilance police to conduct enquiry or investigation into the allegations. In Anil Kumar v. M.K.Aiyappa 10, the Supreme Court relying on earlier decisions of the Supreme Court in State of West Bengal v. Mohd. Khalid11 held that cognizance of an offence is taken by the court at the initial stage when court applies its judicial mind to the facts mentioned in a complaint. Referring to its earlier decision in State of Uttar Pradesh v. Paras Nath Singh12 Supreme Court held that the bar on the exercise of power of court to take cognizance any offence against a public servant is absolute and complete. Taking cognizance in the context, it said, means taking notice of. Court was therefore precluded from examining a complaint or from taking notice of it in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his public duty, except after prior sanction from the competent authority under Section 19 of the Prevention of Corruption Act, 1988. In Mohd. Khalid  Supreme Court had held that taking cognizance of an offence is not the same as issuing of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint. The Supreme Court took the same view in Subramania Swamy v. Manmohan Singh13. No doubt, the Supreme Court has sufficiently contributed to the confusion by rendering conflicting decisions as to the meaning of ‘taking cognizance’ of criminal offence by a court under Cr.P.C. In R.R. Chari v. State of U.P.14 the Supreme Court held that before it could be said that magistrate has taken cognizance of any offence under Section 19(1)(a) of Cr.P.C. he must not only have applied mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of Chapter XV of the Cr.P.C. In S.Kumar v S.Sunaad Raghuram15 the Supreme Court held that ‘only upon examination of the complainant, the Magistrate will proceed to apply the judicial mind whether to take cognizance of the offence or not’. In none of these decisions, however, there is any in depth discussion as to what is the meaning of ‘taking cognizance’ or as to at what point of time the Magistrate shall deemed to have taken cognizance of a criminal offence. Whether right or wrong, there is ample authority for the proposition that on a complaint against a public servant involving allegation of criminal offence during the performance of official duty, the Magistrate has not only to apply mind to satisfy whether there is prima facie truth in the allegation but also has to take cognizance of the offence by taking notice of the complaint before directing investigation under Section 156(3) of Cr.P.C. Unless varied by a subsequent decision of the Supreme Court this is the law of the land and courts at the lower rung in the judicial hierarchy are bound by the law laid down by the Supreme Court. Decision of the Kerala High Court in Maneesh E. v. State of Kerala16 has taken a view that the decision of the Supreme Court in Anilkumar being contrary to an earlier Constitution Bench decision of the Supreme Court, courts are not bound to follow Anilkumar . Precedential value of Maneesh is doubtful. Facts in Maneesh show that the Vigilance Court, Kozhikode, had rejected a complaint alleging criminal offences under Prevention of Corruption Act, 1988 (P.C.Act) against a public servant, for want of prior sanction under Section 19 of the P.C. Act, based on the decision in Anilkumar. The High Court refused to follow Anilkumar stating that it was contrary to Constitution Bench decision in Nandram Agarwala v. H.C. Bhari 17. High Court held that the Vigilance Court, Kozhikode, had gone wrong in not caring to consider the Constitution Bench decision in Nandram Agarwala. In Anilkumar, the High Court pointed out, Nandram Agarwala was not considered. High Court, therefore, held that the Vigilance Court ought to have followed the decision in Nandram Agarwala. Accordingly, the High Court set aside the order of the Vigilance Court, Kozhikode and directed the Vigilance Court to follow Nandram Agarwala  and pass appropriate orders. In fact, facts in Nandram Agarwala were not identical to the facts of the case before the Vigilance Court, Kozhikode. Nandram Agarwala was not a case where any offence under Prevention of Corruption Act had been involved. In Nandram Agarwala Supreme Court was not considering the question as to whether while entertaining a complaint under Prevention of Corruption Act it was necessary for the Vigilance Court to apply its mind to the complaint and the materials produced before it to satisfy that there was prima facie truth in the allegations. There was also no discussion whatsoever in Nandram Agarwala as to what is the meaning of “taking cognizance" in a case falling under Prevention of Corruption Act and whether entertaining a complaint against a public servant alleging criminal offences under Prevention of Corruption Act would amount to taking cognizance. Therefore, the Vigilance Court, Kozhikode was bound by Sirajudin, Anilkumar  and Mohandas and not by Nandram Agarwala. The High Court is also bound by Sirajudin and Anilkumar. If the law laid down in Sirajudin and Anilkumar is the law of the land, the High Court by directing the Vigilance Court, Kozhikode to ignore these decisions and to direct investigation of the complaint under Section 156(3) of Cr. P.C., was in fact, directing the Vigilance Court to act contrary to the law of the land. Obviously, the Vigilance Court, Thrissur was not justified in mechanically forwarding the complaint to the Director of Vigilance and Anti Corruption Bureau as if it is a post office. The High Court while suspending, the order of the Vigilance Court found fault with the Vigilance Court also for not following Anilkumar. The High Court while so doing also observed that ‘if this is what the learned Judge has understood about his position and responsibility as a Special Judge exercising jurisdiction and functions under the P.C. Act, the High Court will have to interfere it on the administrative side of the High Court’. Perhaps, the High Court was pointing out that the Vigilance Judge ought not to have adopted a casual approach in a case where the fundamental rights of the parties were at stake. The approach of the Vigilance Judge was obviously too casual, mechanical and bordering on irresponsibility. Of course, the rule against mechanical exercise of judicial power applies with equal, if not more, vigor to the High Court as well and similar blame could be laid at the doors of the High Court for the manner in which it decided Maneesh. But, one of the News Papers in its online edition stated that “Vigilance Court Judge who ordered to file an F.I.R. against Chief Minister and Minister has decided to take voluntary retirement”. It also said that “The High Court Judge had made a scathing criticism against Vigilance Court Judge. He had said the Judge was oblivious of the limits of his powers. ‘His verdict breached all those limits; “I don’t know how one could get along with such kind of Judges,” remarked the Judge who also asked the High Court administrative section to initiate action18. The High Court did not make the quoted remarks. The High Court also did not ask its administrative section to initiate action against the Vigilance Judge. It was a clear unethical and irresponsible reporting. Media failed to place before the public the real facts leading to the interim order of the High Court. While the European media made Barbulescu a ‘hero’ and European Human Rights Court a ‘villain’, in Kerala it was the turn of the Vigilance Judge and the High Court respectively. In both instances real facts had been suppressed and the facts were distorted for sensationalizing of the issue. In both cases, the real contents of the judicial decisions were missing and the casual and commonsensical approach of the media were evident.

There is a common belief not only among the journalists but also a section of the judiciary that law is commonsense and that commonsensical approach is sufficient to do justice in any given case. Is law mere commonsense? Accordingly to Andre Bateille commonsense is particular and localized’19. Being bound by class, community, and gender and so on, ‘it is also reflective since it does not question its origins and presuppositions’. Commonsense is based on limited range of experience of particular persons in particular places and time. People are inclined to believe that their way to do things is the right way or reasonable way. Other ways of acting in these regards strike them as being not just wrong, but contrary to commonsense. This is because they observe or experience other ways of acting and thinking only in bits and pieces and not in their entire context. Many common sense statements based on popular wisdom need not always be true. Some popular observations may be true but many others may not be supported by empirical data. Commonsensical approach to an issue may be a good starting point of discussion but not an end in itself. On many occasions commonsensical conclusions may be stemming from myths, prejudices and stereotypes.

Courts in U.S.A. and U.K. and other common law jurisdictions do not any more decide cases based only on views stemming from mere common sense. Gone are the days when courts use to think that cases involving important and complicated questions of law can be decided without entering into meaningful dialogues with counsel appearing in the case and without reference to academic literature. Alan Patterson has recorded that forty years ago relatively few academics had the opportunity to interact regularly with the Law Lords in England19. Academic criticism of the House of Lords tended to be muted in those days. According to Patterson it seems that General Editor of Modern Law Review in 1950 was summoned by the Law Lords and solemnly reproved for publishing an article by Professor Grower that included a criticism of the judicial attitude towards academics20. Patterson has also recorded that in 1972 one Law Lord indicated that ‘he seldom found the Law Journals of any assistance because they were not critical enough' 21. He also said that ‘Law Journals contained sort of notes which are couched in very respectful language and ‘not particularly helpful' 22. Soon came the criticism of Professor J.C.Smith , a leading Scholar of the day. He assailed Regina v. Caldwell 23 in harsh terms. Regina v. Caldwell was overruled after 10 years in Regina v. G.  The House of Lords in Regina. v. G 24 acknowledged the ‘reasoned and outspoken criticism of Professor J.C.Smith’ to overrule Caldwell. Anderton v. Ryan25 came under severe criticism by another leading scholar of the day, Professor Glanville Williams. He severely criticized the Judges who decided Anderton26. He found them guilty of conceptual misunderstanding of rule, invisible ignorance of mess they made of law, immobility on the subject and subversion of Act of Parliament. In a 50 pages article Professor Williams accused the House of producing in two worst decisions on a point of law in the twentieth century, ignoring and discriminating against the Law Commission, acting in an idiosyncratic and autocratic way, and verging on incompetence. Lord Bridge who read the Article used it in Regina v. Shivpuri 27 to overrule Anderton and persuaded his colleagues to follow him in that regard. Lord Bridge made no secret of the advantage he derived from the Article of Professor Williams and said that ‘though the language in which Professor Williams criticizes the decision in Anderton v. Ryan is more conspicuous for its lack moderation it would be foolish on that account not to recognize the force of the criticism and churlish not to acknowledge the assistance’ he derived from it. On another occasion, Lord Diplock is said to have commented that ‘in contrast to the judicial attitude in my early days at the Bar Judges no longer think that the judicial wisdom are confined to judgments in decided cases’ and that ‘in appellate courts, at any rate, when confronted with a doubtful point of law we want to know what living academic jurists have said about it and we consider that counsel have not done their home work unless they come equipped to tell us about it’. John Steyn in an interview to Alan Patterson is said to have said that ‘it became much more open place'. Much more attention has been paid to academic literature generally in the House of Lords in the recent years 28. In 2005, Lord Hope confirmed that references to academic literature are more common than it used to be. Appellate Judges are particularly conscious of good work that has been done by academic lawyers to reveal weaknesses in the existing law and to explore new territory. When counsel failed to refer to cite relevant academic writings and the justices are aware of the literature they will note the omission and may even mention it in their judgment as they did in Jones v. Kernott 29 . In US Supreme Court, over the last 50 years, court used academic literature in 32% of decisions at an average of one Article per decision. Chief Justice Roberts used legal scholarship in 23% of cases he decided. In Hunter v. Canarry Wharjf 30 Lord Golf stated that while he consulted relevant academic authorities, he referred only to those which were of assistance. In White v. Jones 31 Steyn L.J. regretted that no commentary on Ross v. Cannters 32 was put before the Court of Appeal for arriving at a correct decision in the case. He also said that in a difficult case it is helpful to consider academic comment on the point.

It is time for us to realize that law is not mere common sense. A lot more intellectual exercise has to go into making of the law. It is a heuristic science receiving information from all quarters and thereby enriching itself. Ordinary commonsensical approach is not sufficient to arrive at correct decision at least in cases involving important and complicated legal issues. Constant dialogue with academics and scholars having expertise in the field and reliance on academic literature alone will help courts to develop the law in the right trajectory.

Foot Note:

*    I am highly indebted to Dr.K.N. Chandrasekharan Pillai, Former Director, National Judicial Academy, Bhopal and former Professor and Dean of Law Faculty, Cochin University of Science & Technology, who was kind enough to read the Article in draft and gave valuable suggestions.

1.  Case of Barbulescu v. Romania (Judgment dated 12 January 2016 in Application
No.61496/08, European Court of Human Rights, Strausberg).

2.  http://www.mirror.co.uk/news/uk-news/your-boss-can-now-officially-7171128
(last accessed on 16th April, 2016.

3.    Deccan Herald dated 29 February, 2016 http://www.deccanchronicle.com/current-affairs/290116/solar-scam-kerala-cm-oommen-chandy-files-plea-to-quash-court-order-on-fir.html (Last accessed on 16th April, 2016).

4.    AIR 1971 SC 520.

5.    2013 (4) KLT 632 (SC).

6.    AIR 2007 SC 351.

7.    2011 (1) KLT Suppl. 88 (SC) =  AIR 2011 SC 1363.

8.    2003 (3) KLT 480.

9.    AIR 2002 SC 2225.

10.  2013 (4) KLT 125 (SC) = (2013) 10 SCC 705.

11.  (1995) 1 SCC 684.

12.  2009 (3) KLT Suppl.999 (SC) = (2009) 6 SCC 372.

13. (2012) 3 SCC 64.

14. AIR 1951 SC 207.

15. 2015 (3) KLT  382 (SC) = (2015) 9 SCC 609.

16. 2016 (1) KLT 323.

17. AIR 1956 SC 44.

18.  Kerala Kaumudi Online, dated 29th January, 2016: http://www.kaumudi.com/innerpage l.
php?newsid=74266 (last accessed on 16th April, 2016).

19.  Andre Bateille: ‘Sociology and Commonsense’; Economic & Political Weekly, Vol.31, Issue No.35-36-37, 14 Sep,1996,p.2361.

20.  Alan Patterson : Final Judgment: The Last Law Lords and the Supreme Court; Oxford and Portland, Oregon,2013 ;p.268.

21.  Ibid;p.268.

22.  Ibid;p.268.

23.  Ibid;p.268.

24.  (1982) AC 341.

25.  (1985) AC 560.

26.  Glanville Williams, ‘The Lords and Impossible Attempts, or Quis Custodiet Ipsos Custodes?’ (1986) 45 CLJ 33.

27. Alan Patterson : Final Judgment:The Last Law Lords and the Supreme Court; Oxford and Portland, Oregon,2013;p.270.

28. (2011) UKSC 53.

29. 1997 U.K.H.L.14.

30. (1995) 2 AC 207.

31. (1990) Chancery 2970.

lrjyman N aplpÀ½lp

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

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

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“cmP³ kwkvarXy kwkvarXy kwhmZanaaÛpXw

tIihmÀÖ\tbm:]pWyw lrjyman N aplpÀ½lp”.

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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.