An Act of Will, Not Legal Judgement

(By V.Sudhish Pai, Advocate)

 The NJAC judgement is built on quicksand. It bristles with baseless assumptions, arrogant assertions and perverted logic.

Nowhere under the sun except in India for the last two decades do Judges appoint themselves and in a way choose their successors. The Constitution in Arts.124 & 217 vests in the President (which is a metaphor for the Union Government) the power to appoint Judges of the superior Courts in consultation with the C.J.I. That is the language and the original intendment and understanding.  By interpretation in II and III Judges’ cases ‘consultation’ was held to mean ‘concurrence’, making the President a consultee.

The Constitution does not envisage appointment of Judges with the concurrence of the judiciary or the collegium system. The Supreme Court innovated the apparition of the collegium wresting the power of appointments from the Executive to the Judiciary quite contrary to the plain and express language of the Constitution. This has no logical, lexical or textual support or basis. Neither II nor III Judges’ judgements has any constitutional or jurisprudential foundation or sanction. Indeed, the law laid down therein is violative of the basic structure. Making a critical appraisal of the judgements in II and III Judges’ cases, Lord Cooke of Thorndon, that great legal mind wrote two articles- Making the Angels Weep and Where Angels Fear to Tread. They speak for themselves and show how the judgements are unsupportable on principle.

It may not be out of place to refer to certain observations of Justice Michael Kirby: “There is wisdom in retaining a distinct role for the elected Government in the appointment of judges. The inputs of governments that change over time, and which are accountable to Parliament, into the appointment of judges, not only affords democratic legitimacy for the appointees, reflecting arguably the most precious feature of the national Constitution. It also tends to secure over time, the variety of changing values that are also reflected in the changing compositions of Parliaments and governments and in the community itself. This is not to politicize the judiciary along purely partisan lines. It is simply to reflect the reality that strongly differing views are often held in society about the kind of value judgements which such judges must necessarily invoke and apply…… To replace judicial appointments by elected politicians effectively by a system of judicial appointments selected by present or past judges severs the important link of the judges to democratic authority for their tasks.”

The impugned law only  sought to rectify the anomaly and restore the correct position. The present judgement frowns upon even the association of the Executive or civil society with judicial appointments. The gravitational pull of power has tried to rationalize the usurpation of the power of judicial appointments, the raison d’être apparently being the independence of the judiciary. 

That Judges should be appointed by or with the concurrence of judges and through a collegium is no part of the Constitution’s basic structure and certainly not  of the express constitutional provision or intent as is clear from the Constituent Assembly Debates and Dr. Ambedkar’s forceful speech on 24.5.1949 winding up the debate on Draft Art 103 which is now Art.124: “With regard to the question of the concurrence of the Chief Justice (of India) it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgement. I personally feel no doubt that the Chief Justice is a very eminent person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have ;....to allow the Chief Justice practically a veto upon the appointments of judges is really to transfer the authority to the Chief Justice  which we are not prepared to vest in the President or the Government.....and it is a dangerous proposition.”(VIII CAD 258)

The petitioners’ argument and the finding of the Court is that the manner of appointment of judges with primacy to the judiciary is part of the basic structure. This is not so. The collegium system came in 1993 only. Basic structure is what is contained in the original Constitution and not what is added later or what came in much later through judgements and whose correctness and legitimacy is in serious doubt. It would also mean that once a judgement is given, however erroneous it be, it cannot be got rid of. It is well known and settled that any judgement may be rendered nugatory by removing its basis. To maintain that only the collegium procedure is sound and lawful is an incestuous and self perpetrating exercise.

It is indisputable that independence of the judiciary is  a  basic feature of the Constitution. But the core issue is what is judicial independence.  Independence of the judiciary does not depend upon the source or power or manner of appointment of judges or on anything that happens before appointment. It is to be judged by and the test is how independently Judges behave on and off the Bench after their appointment and in their thinking and functioning. It also means independence from their own prejudices and pet notions. (See:Madras Bar Association case (2010) 11 SCC 1 (para 46)).  Judicial independence and integrity are ultimately in the minds and hearts of Judges.  Great examples of persons with political background appointed as Judges who proved their integrity and independence are the likes of Chief Justice Earl Warren and Justice Krishna Iyer.

Preponderance of the political element or even its exclusivity, i.e., non- consultation with the judiciary in the matter of judicial appointments by itself would not thwart or destroy judicial independence or integrity. The United States is a telling example. To say that judicial independence became real and is protected only after the collegium system was put in place in 1993 would be wholly wrong and untenable. Judicial appointments for over four decades under the original understanding of the constitutional scheme were exemplary. Those Judges were generally far more eminent and far more independent.

We have such stellar examples like P.B.Chakravartti, J. (Chief Justice of the Calcutta High Court) who could tell the Chief Justice of India to come to the High Court only after Court hours, S.P.Mitra, J. (Chief Justice of the Calcutta High Court) who could tell the Chief Justice of India that he (CJI) would be received by him (Mitra CJ) only in his chambers, R.M. Kantawala, J. (Chief Justice of the Bombay High Court) who could tell the Chief Justice of India that the  C.J.I.’s proposals for appointment as judges would not go through because he (Kantawala, C.J.) did not approve of them, Justice H.R.Khanna who gave his famous dissent knowing full well that it would cost him the Chief Justiceship of India,  Justice Krishna Iyer, a known leftist whose elevation to the Supreme Court did not evoke that favourable a response, demonstrated his independence and integrity when he declined to allow Shri H.R. Gokhale, the then Union Law Minister and a fellow traveller to call on him in the wake of Smt. Indira Gandhi losing the election case in the Allahabad High Court. These are but a few instances the like of which we are perhaps unlikely to come across these days.

The question is how much of such independence and impartiality are there today. Experience has proved Dr. Ambedkar more than right.  After all, the taste of the pudding is in the eating. How well or ill the collegium system has worked is there for all to see. It is stating the very obvious to say that the system, whatever hopes it might have generated at its inception two decades ago, and they were indeed great hopes, has failed. Hopes can be dupes as it turned out to be. The system lacks transparency, it lacks credibility. As Justice Krishna Iyer observed, “The appointments of judges end in disappointment when the instrumentality for selection and the criteria for choice are unguided and operationally shrouded in secrecy……..While the patronage of the political bosses has largely vanished, the patronage of the ‘robed bosses’ has not improved the quality of the Judges selected.” There appears to be no escape from the position that the system has to change. Just as war is too serious a business to be left to the Generals only, appointment of Judges is too serious a matter to be left to the judiciary alone.

That the collegium system was not challenged or  was accepted and not sought to be changed for two decades does not clothe it with constitutionality or immunize it against any change . It may be said that public response to this was enormous tolerance and patience and respect towards Judges however deviant their behaviour.  It may not be wrong to say that the judgement in 1993 came at a time when there was a lame duck Government battling against scams and a Parliament with no clear majority. They quietly allowed the naked usurpation of power by the Judiciary for which there is no warrant. The position continued for about two decades. Everyone is now wiser after the event. There has been almost unanimity that the system must change.  A political consensus emerged. The law makers stepped in with remedial measures. The Constitution as originally enacted contemplates appointments and transfers of Judges ‘after consultation’ with the judiciary.  This is with a view to uphold and protect judicial independence. And that is more than provided for in the impugned  law also which unfortunately and inexcusably  the Court failed to approve. 

Indeed, if the test is that Government as a major litigant should not have a say in the appointment of Judges, then it ought not to be forgotten that it is the same major litigant Government that provides Judges their salaries, residential accommodation and all other perks and post-retirement appointments. When Judges go after post retirement appointments which are given by Government and that too during their tenure on the Bench and they openly and hopefully look forward to something, that even more affects and is destructive of judicial independence. If the argument is pushed to its logical end it would even mean that the constitutional process of removal of a judge (impeachment) is also an encroachment on judicial independence; nothing could be more ridiculous.

Constitutionality and wisdom are not synonymous. Better measures may be possible. But when a measure is within the permissible constitutional limits it is by definition the expression of the collective wisdom of the people. As authoritatively held, what is best for the community is for the legislature to decide. The Union Parliament and the requisite number of State Legislatures unanimously passed the impugned law which does not suffer from any infirmity. Unconstitutionality, not unwisdom is the narrow area of judicial review. And any doubt, it is well settled, has to be resolved in favour of the legislation. All the more so, when it is a constitutional amendment. While even a constitutional amendment unanimously passed and ratified can be declared unconstitutional if it violates any basic feature of the Constitution, a constitutional amendment is invalidated  only when there is a palpable or shocking breach of an essential feature or the basic structure. There can be no quarrel with or criticism of the philosophy underlying the impugned law. The constitutional amendment is certainly not violative of the Constitution’s basic structure. Problems and difficulties, if any, in working it were to be addressed and the creases ironed out. The Court failed to do so.  How well or ill a system or a law works is not the test of its constitutionality. The fear of perversion is no test of power. The possibility that a provision of law may be abused does not impart to it an element of invalidity. So also the fact that a system is working excellently does not clothe it with constitutionality if it is not otherwise constitutional.

The majority view proceeds on the premise that judicial appointments must be by the judiciary only, that they should be insulated from the political executive, that the impugned law is insufficient to preserve the primacy of the judiciary and hence violative of the principle of the independence of the judiciary. This is its cardinal mistake. There is no warrant for this in any jurisprudential lore, constitutional principle or political theory. Neither the independence of the judiciary nor the separation of powers is infringed. Indeed the impugned law provides for a greater say for the judiciary than what was originally envisaged. Properly construed, it does not dilute the position of the judiciary or make it ineffective. It sets up a more inclusive apparatus and a more meaningful procedure.

Objection to the presence of two eminent persons in NJAC overlooks that they are to be appointed by the Prime Minister, the Chief Justice of India and the Leader of the Opposition. The fear that the impugned law gives a handle to any two non-judicial members to veto a name is a tenuous proposition. By the same argument any two Judges can veto. In that sense there is no primacy for any particular view. The idea of primacy of CJI or the judicial element is alien to the constitutional scheme.

One cannot overlook that in II and III Judges’ cases too the emphasis was upon “integrated ‘participatory consultative process’ for selecting the best and most suitable persons available for appointment” in which “all constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, subserving the constitutional purpose, so that the occasion of primacy does not arise.”

Reference to National Commission to Review the Working of the Constitution to support the majority view  is wholly mistaken. There is nothing in that report which says the Executive should not be associated with judicial appointments. Indeed, the National Judicial Commission recommended by the NCRWC contemplates the Union Minister for  Law and Justice as a member.

One of the majority opinions observes that NJAC is not the stairway to heaven. Certainly it is not, and none claimed it to be. But the collegium system is a pathway to hell. Another observation that the new law reduces the President to a dummy is jejune and passes ones comprehension.

To think that the judiciary alone can do a good job and make correct appointments and protect our liberties is an insult to the nation and is factually incorrect and untenable. Is the judiciary really the last bastion or has it become the lost bastion ! Government is man’s unending adventure. Constitutional choices have to be made. There is need for sufficient room for trial and error. “In law the moment of temptation is the moment of choice.” The majority harkened to the shrill voices against the impugned law and yielded to the temptation of being trigger happy. Arbitrary power has been adorned with the apparel of constitutionalism. The majority view discloses a distrust for the co-ordinate wings of Government. But the implicit trust it has placed in the judiciary is utterly misconceived and misplaced. The Court speaks of parties  in power being prone to sharing the spoils. But from what is stated in some of the opinions, the public, whom the leading judgement unjustifiably despises, may be right in feeling that the members of the judiciary also share the spoils under the collegium system.

The Courts are authorised to exercise ‘neither force nor will but merely judgement’. Four law men have closed the debate and erected their pet theories and prejudices into legal principles and enacted their own will and vision as a matter of constitutional law. The leading judgement refers to many matters not germane to the issue and has no focus. The opinion does not have the qualities of a judgement but is more like a politician’s outburst. The insinuations at the entire political class as also comments against the civil society apart from being in very bad taste  are wholly unwarranted and incur the criticism of being puerile. The opinions are couched in a style that is as pretentious as its content is egoistic. They are not conspicuous for any sound legal reasoning or profound constitutional philosophy. “A judge who announces a decision must be able to demonstrate that he began from recognised legal principles and reasoned in an intellectually coherent and politically neutral way to his result.” The majority decisions are not distinguishable for this approach. Well accepted notions of constitutional law and canons of constitutional interpretation have been thrown overboard. The majority failed to heed the earlier admonition of the Court that “in judging constitutional validity of a constitutional amendment the Court may not make surmises on ifs and buts in reaching the conclusion of unconstitutionality.”

The legitimacy of the Court ultimately rests “upon respect accorded to its judgements.” That respect flows from the perception that judges exercise humility and restraint in deciding cases according to the Constitution and law. The role of the Court envisioned by the majority is anything but that. The Court’s deference to those who have the responsibility of making laws has great relevance. “The legislature after all has the affirmative responsibility. The Courts have only the power to destroy, not to reconstruct and when to this is added the number of times that the Judges have been overruled by events – self limitation can be seen to be the path to judicial wisdom and institutional prestige and stability.” The attitude of judicial humility is not an abdication of the judicial function. It is a due observance of its limits. The majority has totally disregarded this profound truth. The impugned law was a step in the right direction but the Court missed the opportunity and betrayed itself into a grievous and unforgivable error. It is a typical example of  what Justice Frankfurter called ‘the Court indulging its own will.’ The majority decision is an act of will, not legal judgement.

The minority view is characterised by compelling logic and robust realism. It reveals the sorry but true state of affairs of the system. The dissenting judgement bemoans the transfer of dependence from the political to the judicial hierarchy and the so called judicial independence being a myth and a euphemism  for nepotism enabling, inter alia, promotion of mediocrity or even less. It has been truly observed : “The assumption  that the primacy of the judiciary in the appointment of Judges is a basic feature of the Constitution is empirically flawed....That the judiciary alone does the job well is an assumption that is dogmatic, bereft of evidentiary basis and historically disproved.....To wholly eliminate the executive from the process of selection would be inconsistent with the foundational  premise that government in a democracy is by chosen representatives of the people.” Further it is rightly pointed out that the basic feature of the Constitution is not the primacy of the judiciary in appointing Judges but lies in non-investiture of absolute power in the executive to choose and appoint Judges of constitutional courts. This is commendable and reflects the correct approach.

The anguish is shared even by one of the majority Judges who denounces the collegium system as being wholly unwholesome ‘resulting in unmerited if not bad appointments.’ Yet, he also joins in invalidating the law and in reviving what he condemns.

The proposition and finding that the collegium system will revive is of doubtful validity. The Court has posted the matter for further  hearing to see how best to improve the system. The judgement itself being erroneous and unsupportable, this exercise also is equally bad and self serving, particularly when the judges’ attitude is one of omnipotence and omniscience. However, in the circumstances the best option appears to be to judicially incorporate into the system the recommendation of the NCRWC (Venkatachaliah Commission) in that behalf
(para 7.3.7 ) of which  even the petitioners are votaries. A sense of propriety and wisdom should dictate such a course. It is an opportunity for atonement and to retrieve some lost prestige. That will lend some credibility to the system and to the judges.

It is appropriate to recall the Supreme Court’s observation that judges have to solemnly remind themselves of the words of the historian of the U.S. Supreme Court –Charles Warren: However the Court interpret the provisions of the Constitution, it is still the Constitution which is the law and not the decision of the Court.

There may be many who may hail and celebrate this verdict as a vindication of the independence of the judiciary. But surely this is only the achievement of a desired goal. It has nothing to do with the Constitution or the independence of the judiciary. The Court has also to be free from the Judges. The nation will regret tomorrow for what the Court has done today. The majority decision is one of the great disservices to the nation and the Court itself.

Supreme Court Judgment on NJAC

(By Justice K.T. Thomas, Former Judge, Supreme Court of India)

This is an unfortunate judgment. I feel that the Supreme Court missed a golden opportunity to correct the earlier error in judicially creating an unparallel mechanism for appointing Judges by Judges themselves. The Parliamentary amendment for undoing the error could have been saved by the Supreme Court. Look at the background of the Constitutional amendment. It was felt almost unanimously that the collegium system is studded with flaws like subjectivity, partiality and lack of transparency. Some of the most eligible persons could not get into both levels of the court (High Court and Supreme Court) as they were not inclined to do any lobbying work. In fact, the two jurists Fali S. Nariman and J.S.Verma, who were principally responsible for evolving the collegium system, stated subsequently that they did not anticipate so much flaws for the system. Nariman went to the extent of saying that he would have prepared to have lost the case which he won in formulating the collegium system.

In fact, F.S. Nariman pleaded with Justice M.N.Venkatachaliah Commission, which was appointed for suggesting reforms for the Constitution that a National Judicial Commission (NJC) should be a part of the recommendations of the committee. Almost all the doyens of the legal fraternity welcomed the proposal made by the Justice M.N.Venkatachaliah Commission for creating National Judicial Commission in which both the Executive and the civil society should also be involved along with Judges.

One should not ignore the fact that the Constitution Amendment was passed by both houses of Parliament with near hundred percent unanimity and got the approval from 28 State legislatures. It is one of the rarest events in our Constitutional history to have such unanimity by all the members of Parliament who voted. According to me, such a Constitutional provision should not have been struck down merely because the executive is also given a say in the matter of selection of justice. The presence of two eminent citizens in the selection process should have been welcomed by the Judges, particularly when they were chosen by a collegium consisting of the Chief Justice of India (C.J.I.), leader of the House, and leader of the main Opposition party. The majority decision of the five Judge Bench, reflects a craving of the Judges to arrogate to itself the power of appointment. In my view it was not palatable to a Constitutional democracy.

I had been a member of the Collegium at the High Court level and at the Supreme Court level. From the past experience I would welcome the minimal participation of a member from the executive and also the civil society in the selection process to avert unworthy persons sliding in.

The very fact that one of the senior Judges of the five Judge Bench in the present case advanced very sturdy and valid points for holding that the Amendment was not vitiated by any virus, was enough not to throw the Constitutional provision overboardon the mere assumption that such minimal involvement of executive representative and civil society would vitiate the selection.

Independence of Judiciary, which is highlighted in the majority judgment as impaired by the amendment, should mostly dependent on the function of the Judges during the post appointment stage, and not in widening the scope of pre-appointment deliberations.

Political background of persons to be considered for judgeship should not be treated as disqualification. Such persons have closer association with the people at different levels and they know the pulse beat of persons suffering from social injustices. In fact, history of our judicial development during the post-Constitution period, shows that the great expansion of Constitutional philosophy was contributed, among others, by judgments rendered by those Judges who had background in political activities.

It is to be remembered that the clamour for replacement of collegium system did not come first from politicians; it was from the legal community as instances of faulty selections did not remain sparse, but was on the increase. The possibility of using veto by two persons in the NJAC seemed to be over emphasized by the majority judgments of the Supreme Court. We may bear in mind that Vetoing is not for appointing, but for preventing the appointment of persons whom the non judge members consider unworthy. Though Judges are better persons to discern the legal acumen of the candidate, I feel that non-judges are better persons to know all the other aspects of a candidate. Is it not advisable to use such sources also to decide on the suitability of the candidate. There is no conception that Judges are infallible. Even in judicial exercise the scope of fallibility of Judges is not in minimal dimension. If judges can be fallible in making the selection of Judges, can anyone say that they be eliminated from the selection process? On the same logic the possibility of eminent citizens wrongly vetoing is not enough to keep them out.

The concept of NJAC was initially formulated not by the executive but by a committee of Judges and Jurists (eg. Justice M.N. Venkitachaliah Committee for Constitutional Reforms). In fact, the impugned amendment was made after further improving the proposal through parliamentary deliberations, eg. when Lok Sabha passed the Amendment Bill, it said that only a unanimous decision by the commission will bind the President of India. When the Bill reached the Upper House, the members pointed out the possibility of occurring repeated statements whenever unanimity could not be achieved. Hence the word unanimous was replaced by “majority” in the final shape of the Bill.

In my view the five Judge Bench of the Supreme Court failed in two aspects: (1) a matter involving such momentous importance supported by the entire Parliament and the entire federal units of the Republic, should have been referred to a much larger bench, at least as large a bench as that which formulated the collegium system. May we remember that even an issue concerning education was considered by a bench of 11 Judges of the Supreme Court in TMA Pai case. (2) Every endeavour should have been made to protect the people’s verdict reflected in the Constitution amendment by a process of reading down the doubtful clauses either restricting or expanding its scope through the interpretative process as was done by the Supreme Court in the case dealing with Article 21 (Maneka Gandhi case), Article 356 (SRM Bommai case) Article 15 (Mandal case, in which the theory of Creamy layer was evolved).

Collegium Complacency

(By P. Rajan, Advocate, Thalassery)

The present collegium system lacks transparency, accountability and objectivity. The trust deficit has affected the credibility of the collegium system as some times observed by the civic society- Justice Kurian Joseph in the NJAC judgement.

The Supreme Court’s judgement which struck down the Constitution (99th amendment) Act 2014 by which the Government established a National Judicial Commission to select members of the higher judiciary, approving the present mode of selection of Judges has drawn much flak from varying corners as the five judge bench by majority ruled against the amendment. Justice Chelameswar in his dissenting opinion observed in candid terms about lack of transparency in the Collegium System, unmerited appointments resultantly.

By this verdict the power over Judge’s appointments would again become a well kept secret, as a former Judge of the Apex Court observed and an in house affair. The vital rationale behind the majority opinion appears to be the independence of the judiciary considering the basic structure of the Constitution. By the 99th Amendment Union Law Minister and two eminent persons also would form the commission besides the Prime Minister and leader of the opposition. The Supreme Court expressed its dissent due to the induction of political persons in the commissions as political interests would be a guiding factor. Protection of judiciary from political persons is essential observed unanimously while striking down the bill. Politician bashing, the Supreme Court did according to many while deciding the issue involved. Supreme Court also decided earlier four cases relating to Judge’s appointments and in the fourth judge’s case, now delivered interpreted Article 124 and 217 of the Constitution regarding selection of Judges to the Supreme Court and High Courts. Primacy and independence of the judiciary are to be preserved even the Attorney General submitted before the bench, but the process of judges selecting judges rarely courted controversy as some of the judges’ performance was quite unsatisfactory. Attorney General even furnished data by naming persons relating to their dismal performance to annul the collegium system of selecting Judges.

Before the commencement of the hearing one of the lawyers requested in writing for recusal of Justice Khehar but dismissed the plea. It is ironical that Justice Dave who was a member of the bench earlier voluntarily recused from hearing the matter.

Member of a higher judiciary enjoys much privileges besides protection relating to service conditions and even regarding removal, on the twin grounds of misbehavior or incapacity procedure is cumbersome. Selection for a High Court Judge minimum 10 years standing at the bar and optimism of appreciable performance by the concerned plus some other mandatory pre-requisites pave way for elevation if the collegium endorses the appointment to be sanctioned by the President of India. Even in a small State like Kerala in the lower judiciary, which is one of the best in the country-opined several- to become a Munsiff/Magistrate or a District Judge directly, written tests besides personal interview are mandatory. As far as selection to the higher judiciary is concerned there is no test to satisfy the ability of the incumbent to perform duties of a judge except the nod of the collegium. In developed countries, with lesser population contra to India’s 120 crore, across the country more than 3 crore cases are pending, selection of Judges if compared process and procedure vary considerably. 

In the relevant judgement which is being discussed and criticised Justice Chelameswar’s observations invited acclaim as his views endorsed the need of the civil society. As Justice Kurian Joseph opined about the undeserving appointments which inturn affected the image of the judiciary needless to say the entire process deserves a structural alteration. When questions relating to professional education in private colleges arose, to achieve finality, the oft- debated TMA Pai case was heard by a 11 Judge bench. Much importance was given to the challenge made by Menaka Gandhi relating to fundamental rights issue, allowed to decide by a larger bench specially constituted. The collegium system by passage of time invited much criticism and the bench also endorsed its view regarding that. Having observed about the short comings by some judges, instead of striking down the recent amendment a revisit of the bill or further steps by the executive to make the commission more effective could have been done instead of scraping the amendment as such. A larger benches’ verdict would achieve finality by giving more directions in concurrence with the executive.

Musing on Case Presentation -- VII

 (By Dr. K.B. Mohamedkutty, Senior Advocate and Former Law Dean)

An advocate is hired for championing the cause of justice for his client. A splendid engagement indeed, but he has a duty to be worthy enough for the task. The belief that argument is easier than the toughness of drafting is a fallacy to which most people mistakenly assent. The arguing Counsel must secure a variety of skills flowing from brilliant head to think, spontaneous tongue to articulate, shrewd sense of planning and pleasing dispositions. He must hit back attack from the other side like a boxer’s punch, without deviating an inch from professional ethics. He must choose the safest mode of argument. When a case is entrusted with the lawyer what he gets from client is only raw-materials of the case. He has to build up a beautiful structure with them in his own way, as an architect does with bricks, mortar and his prolific imagination.

Models and Models

An eagle flies across the sun seeking its nest; a lawyer undertakes a rescue operation to save his client from distress. The argument is like swimming in the sea. One has to jump into waters and face huge hostile sea waves of counter arguments unleashed by the opposite side. To which side he will fall is uncertain. If he is not vigilant, he becomes almost like a fly caught in the spider’s web. He must float himself on the surface of water, never allowed to sink. However, there is no use in babbling or repeating. Be precise and resourceful. There is no universal standard for good argument.

The style of argument is as numerous as lawyers. When all good elements are present argument becomes thrilling which may even stir up blood flowing through the arteries of listeners. It sheds beacon light removing darkness around the dispute. However, when facts are bad argument becomes feeble. The contention raised by the opposite side may appear to be innocuous like a serpent’s egg which may turn mischievous later; it is necessary “to kill them all in the shell, rather than allowing them most free.”

There are arguments which unleash forces of Tsunami, submerging shores of legal landscape. Some arguments are like cool sea breeze. Some are like acid which burns, though appear to be harmless. Some are like well-tempered Spanish sword with double edges and suited for striking and pushing. The argument falls flat if it is mere assertion, without substance. Each lawyer develops his own style inter-mixing facts and law in an excellent blend. Facts are primary and it is rightly said that law will sprout from facts and turn its branches towards the light. There are arguments which are tedious in the beginning and yet turn to be good at the end. Several young lawyers are able to present the case impressively with stuff of law. Whatever be the style, the arguing counsel should not be like a ship in the mid-sea not knowing its destination.

All are not blessed with fine vocabulary while arguing the case and yet they impress the court wonderfully. Sir Jamshedji Kanga, the renowned senior of Nani Palkivala was a great lawyer and author of reputed legal works. He was Advocate-General of the Bombay High Court for many years. He argued cases with gestures. To him gesture was as good as fine vocabulary. His admirers stated that he sifted the chaff from the grain within the short time. He had no anxiety which is a hurdle on the way of presentation. Bhasyam Ayamgar was Advocate General of Madras for two terms. He was the first Indian to hold the post. He became later a Judge of the Madras High Court. His argument was slow and often halting, but at the same time precisely calculated to drive the Judge to his side. It is said that his slowness was to study the mind of the Judge. He cultivated a habit of thinking on his legs as he was endowed with a capacious memory.Lawyers argue adopting different body styles, some pushing their hand in all directions. Generally lawyers restrict movement to the tongue. A rare category with remarkable memory never opens up the bundle. But none can say what kind of argument will bear fruit.

A New Perception

The argument should be anchored not only on law but also on exemplary presentation. According to M.S.Menon, former Chief Justice of the Kerala High Court, there is always a breath of fresh air in the manner of presentation. It opens up many windows and expands new horizon. Yet another view is that it should not be more assertive than explorative. At the same time, it is an art like music and poetry.

As knowledge is in your finger tip today, what is needed most is not the knowledge as such, but the key to knowledge as no one can store the whole knowledge. It is not advisable to learn argument in a manner one prepares for examination. It will create trouble in delivery point. There is nothing wrong in thinking about substance or even the mode of expression beforehand. The argument crumbles like clay, if there is no homework behind it and if it provides more heat than light. Don’t create an impression that you are empty. Every argument may have stump and root. The stump may die, but root sprouts like young plants. The counsel must consider the grasping capacity and velocity of thought process of the Judge. Explain with confidence points in a manner appreciable to him. Don’t lose your balance on the run way of argument. To increase confidence think in law and think as far as possible in a way that no other lawyer or Judge has even thought of about the particular aspect of law which came up for your contemplation. If you get a new perception, it is worthy. There is creativity in it. It takes you up in the sky of law.

Importance of Voice Control

Blessed are those who are born with pleasing voice. It has effect on the nerve of the hearer. We come across a variety of voices: Each person has distinct voice: for example, high pitch, low pitch, rhythmic, harmonious, melodious, passionate, dispassionate, pleasant, sharp, strenuous, ringing, moderate and the like. Voice should not be discordant, according to Lord Denning. Jawaharlal Nehru writing from prison to his daughter observed that Gandhiji had a wonderful voice: “it was quite and low and yet it could be heard above the shouting of the multitude. It was soft and gentle and yet there seemed to be steel hidden away somewhere in it. It was courteous and full of appeal.”

We must remember that even the wall of the Court has ears. When a lawyer is anxious to win, naturally the pitch of his voice may go high. It takes time to control this. Generally speaking, Judges prefer hushed voice but audible enough. It is necessary to make argument audible enough. However, argument before court cannot be like platform oratory for getting applause. It is to persuade. Argue with earnestness even if the Judge sits with half an ear. The argument from the opposite side may at the first blush appear to be straight, plain and innocuous, but it may hide unspoken danger.

Vocabulary and Body-Language

 Arguing is a journey through facts and the law. Even if the road is not worthy enough, we have to reach the destination. Fear of poor vocabulary consumes lawyers generally. This is baseless anxiety. Even Bernard Shah, who was a best speaker, was not free from fear complex when he participated in debates. He says:

 “I suffered agonies that no one suspected...My heart used to beat as painfully as a recruit’s going under fire for the first time. I could not use notes; when I looked at the paper in my hand I could not collect myself enough to decipher a word. And of the four or five points that were my pretext for this ghastly practice I invariably forgot the best.”

Etymological experts count about fourteen thousand words in common usage in English language. Every year some new words are added to the language as it absorbs words from other languages. We need not be bothered about such additions. The dictionaries give more than three lakhs words as they give derivatives of the same word. Shakespeare wrote thirty-eight plays, l44 sonnets, and two long narrative poems. He used only fifteen thousand words. Milton used only eight thousand words. With short vocabulary great writers gave us marvelous creative works. The Bible which is considered as a great piece of literature as well, contains only six thousand words. A peasant in English countryside manages with three hundred or four hundred words. There are speaking vocabulary, reading vocabulary and writing vocabulary. Likewise, there are legal vocabulary and a variety of legal maxims.

Arguments are compared to flowers of mango tree; only few of them fructify. A long line single argument is like a palm tree. It may bear fruit. But when it is cut down at some point of its growth, it is the end of it. But there are arguments like a tree with branches; it continues to survive even if it is cut down. With substance in argument, style becomes simple, lucid, energetic and vital. Cervantes, the author of Don Quixotic, in the preface of his classic work gives the following advice: “Do but take care to express yourself in a plain, easy manner. Give a harmonious turn to your periods.” Ben Jonson stresses the need for lucid style and says that sometimes words borrowed from antiquity or classics do lend a kind of majesty to style. The authors who write books or articles have enough time to choose words. When they write there is nobody to watch them. They get sufficient opportunity to beautify their expression or idea. But an Advocate who argues before Court performs in the open and within short time. He does not get time to sharpen the expression.No other creative work is open to such public gaze. He fights straining every nerve, unembarrassed by any situation.

 Brandies’ Brief

The war between lawyers in court is a war between ideas or war between competing interests. Law used in the process is a precise science like mathematics. There is no scope for loose thinking. The lawyer should not act like a tragic hero in Greek drama. He should be inquisitive like dog’s nose to discover new smell of ideas around. Supplying of evidence in large volumes as part of argument which is called, “Brandies Brief”. Brandies was a great lawyer in the U.S. Supreme Court. In a case, he was arguing that long hours of work are dangerous to women’s health and short hours result in social and economic benefit. To support his case he presented enormous materials drawn from hundreds of Reports and Statistics from socio-economic sectors. The argument was too short, but the materials ran to several documents collected. The time granted for argument in Federal Courts in the USA is fifteen minutes after submitting written hearing notes. The U.S. Supreme Court allows only thirty minutes for argument.

We are disappointed when relevant point is rejected by the court without fair consideration, but the rejected point sometimes becomes acceptable in later case. After every argument the counsel feels that something remains unsaid. Law is a jealous mistress with unquenchable thirst for innovation.

Is Not the Court Entitled to Order Further Investigation

De Hors Section 156(3) Cr. P.C. ?

(By V. Ramkumar, Former Judge, High Court of Kerala)

Towards the fag end of the trial faced by the husband of the deceased for an offence punishable under Section 498A of the Indian Penal Code, the learned Magistrate ordered further investigation by invoking the power under Section 173(8) of the Code of Criminal Procedure, 1973 (“Cr. P.C.” for short). The Magistrate directed that as against the ASP who originally conducted the investigation, the further investigation shall be entrusted by the District Police Chief to any competent officer under his control and that the investigation shall be conducted by the entrusted officer under the supervision of the District Police Chief. The accused challenged the above order before the Hon’ble High Court. As per the verdict in Prakash v. State of Kerala (2015 (3) KLT 528) the High Court allowed the petition filed under Section 482 Cr.P.C., holding inter alia that –

1.  the power of the Magistrate to order further investigation flows not from Section 173(8) Cr.P.C. but from Section 156(3) Cr.P.C. as per which the exercise of power ought to have been made at the pre-cognizance stage, and

2.  it was impermissible for the Magistrate to issue directions for further investigation to the District Police Chief as was done in the case.

2. The second proposition of law laid down in the above verdict that the Magistrate while directing further investigation under Section 173(8) Cr.P.C. cannot specify that such further investigation should be conducted by a particular superior police officer or a police officer of a particular rank, is unassailable, But I have some reservation about the other declaration of the law made in the said verdict. Regarding the second proposition, indeed, it is not within the province of the Magistrate while exercising power under Section 173(8) Cr.P.C to specify that a police officer other than the officer in charge of the police station (who is the S.H.O.) or any particular police officer by name or any police officer of or above a particular rank should conduct such further investigation. Besides Central Bureau of Investigation v. State of Rajasthan (2001 (1) KLT 563 (SC) = AIR 2001 SC 668) and Central Bureau of Investigation v. State of Gujarat (2007 (3) KLT SN 38 (C.No. 50) SC = (2007) 6 SCC 156) relied on by the learned Judge, we have also the authority in Hemanth Dhasmana v. C.B.I. (2001 (3) KLT SN 24(C.No. 33) SC = (2001) 7 SCC 536 = AIR 2001 SC 2721) taking the same view.

3. The learned Judge has, however, observed in the above verdict that the power of the Magistrate to order further investigation flows from Section 156(3) Cr.P.C. and not from Section 173(8) Cr.P.C. It is here that I beg to disagree. Placing reliance on the 3 Judge Bench decision of the Apex Court in Bhagwant Singh v. Commissioner of Police & Anr. ((1985) 2 SCC 537) the learned Judge had given the 3 options which are available to the Magistrate on receipt of an indicting police report under Section 173(2) Cr.P.C. Those options given are:-

(1) The Magistrate may accept the report and take cognizance of the offence and issue process, or

(2) The Magistrate may disagree with the report and drop the proceedings, or

(3) The Magistrate may direct further investigation under sub-section (3) of Section 156 Cr.P.C. and require the police to make a further report.

It is evidently from the words “further investigation” stated in the third option given above that the learned Judge was inclined to articulate further to hold that the power to order further investigation flows from Section 156(3) Cr.P.C and not from Section 173(8) Cr.P.C. As a matter of fact, Section 156 Cr.P.C. uses the expression “investigation” only and not “further investigation”. No doubt, where there was already an investigation culminating in a “police report” filed under Section 173(2) Cr.P.C and the Magistrate is passing an order for investigation under Section 156(3) Cr.P.C, it may really be a case of further investigation in the sense that there was already an investigation which preceded the police report. But Section 156(3) takes in not only a case culminating in a police report. It takes in a private complaint as well. Moreover, the occasion for the Court to order investigation for the first time arises only underSection 156(3) Cr.P.C. Hence it is not further investigation at that stage. At any rate, it is not “further investigation” as envisaged by Section 173(8) Cr.P.C which provision will be attracted only after a final report under Section 173(2) Cr.P.C. has been forwarded to the Magistrate. (Vide Sri. Bhagwan Samardha Sreepada Vallabha Venkata Vishwanadha Maharaj v. State of U.P. (AIR 1999 SC 2332). That apart, while the power of the court to order investigation under Section 156(3) Cr.P.C. can be exercised only at the pre-cognizance stage, it can soon be seen that the power of the court to trigger further investigation under Section 173(8) Cr.P.C. can be exercised both at the pre-cognizance as well as post cognizance stage but definitely after the final report under Section 173(2) Cr.P.C. has been forwarded to the Magistrate.

4. Further investigation which is comprehended under Section 173(8) Cr.P.C. is something which is the exclusive prerogative of the police. The right to conduct further investigation even after the filing of a police report is a statutory right of the police (Rama Chaudhary v. State of Bihar (2009 (2) KLT Suppl. 814 (SC) = AIR 2009 SC 2308); State of A.P. v. A.S. Peter 2008 (1) KLT SN 56 (C.No. 56) SC = AIR 2008 SC 1052) Sivamoorthy v. State ((2010) 2 SCALE 700). However, the Investigating Agency is expected to inform the Court concerned and seek formal permission for further investigation. (Vide Ram Lal Narang v. State (Delhi Admn.) AIR 1979 SC 1791). The Apex Court had hastened to emphasise that the express permission of the Court is not necessary for conducting further investigation. (Vide Nirmal Singh Kahlon v. State of Punjab (2009 (1) KLT Suppl. 262 (SC) = (2009) 1 SCC 441 Para 68; Rama Chaudhary v. State of Bihar (2009 (2) KLT Suppl. 814 (SC) = (2009) 6 SCC 346). The above said provision does not, in specific terms, mention about any power of the Court to order further investigation. What the Hon’ble Supreme Court has held is that in appropriate cases the said power of the police to conduct further investigation can be triggered into motion at the instance of the Court, ex debito justitia (Vide Hemant Dhasmana v. C.B.I. (2001 (3) KLT SN 24 (C.No. 33) SC = (2001) 7 SCC 536 = AIR 2001 SC 2721). Just as the Court can trigger into motion the power of the police to conduct further investigation under Section 173(8) Cr.P.C., the State Government by virtue of its power of superintendence under Section 3 of the Police Act, 1861 can also give a direction to a superior police officer for further investigation under Section 173(8) Cr.P.C. (Vide State of Bihar v. J.A.C. Saldanha (1980) 1 SCC 554 = AIR 1980 SC 326 (3 Judges); Nimal Singh Kahlon v. State of Punjab (2009 (1) KLT Suppl. 262 (SC) = (2009) 1 SCC 441. (Paras 44 to 53, 57, 58, 67).

5. Now the further question is whether further investigation under Section 173(8) Cr.P.C. can be ordered after the Court has taken cognizance of the offence. There is nothing inSection 173(8) Cr.P.C. to indicate that the police cannot conduct further investigation after the court has taken cognizance of the offence on the police report initially filed underSection 173(2) Cr.P.C. If by ordering further investigation, the court is only triggering into motion the power of the police to conduct further investigation, what is to be examined is whether there is any embargo or interdict on the police to conduct further investigation after the court has taken cognizance of the offences. There is sufficient precedential authority to show that the power to conduct further investigation can be exercised at the post-cognizance stage as well. (vide –

(1) Union Public Service Commission v. S. Papaiah (1997) 7 SCC 614 = AIR 1997 SC 3876) where the power of the Magistrate to direct further investigation after acceptance of the final report and closure of the case, was recognized.

(2) Sri. Bhagwan Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. (1999) 5 SCC 740 = AIR 1999 SC 2332) – where the power of the police to conduct further investigation even after taking cognizance of the offences by the court was recognised. The decision also held that the power of the court to direct the police to conduct further investigation after taking cognizance of the offence cannot have any inhibition and that the court is not obliged to hear the accused before making such direction.

(3) Hasanbhai Valabhai Qureshi v. State of Gujarat (2004) 5 SCC 347 = AIR 2004 SC 2078) where it was held that the police can conduct further investigation even if the court has taken cognizance of the offence.

(4) Zahira Habibulla N. Shaikh v. State of Gujarat (2004 (2) KLT SN 30 (C.No. 36) (SC) = (2004) 4 SCC 158) also recognised the power of the police to conduct proper further investigation even after the court has taken cognizance of any offence on a police report submitted earlier (para. 79). However, in view of the peculiar fact situation in that case the Apex Court directed fresh investigation/re-investigation in that case

(5) In Dinesh Dalmia v. C.B.I. (2007 (4) KLT SN 27 (C.No. 27) SC = (2007) 8 SCC 770 and in Ramchandran v. R. Udayakumar (2008 (4) KLT 211 (SC) = (AIR 2008 SC 3102) also the Apex Court held that the power of the police to conduct further investigation is not taken away because a charge sheet has been filed or because the court has taken cognizance of the offence.

(6) In Kishan Lal v. Dharmendra Bafna (2009 (3) KLT Suppl. 741 (SC) = (2009) 7 SCC 685 the Supreme Court held that it is permissible for the Magistrate to order further investigation even at the stage of trial (Paras 11, 14 and 15).

In fact, a Division Bench of the Kerala High Court in Shaji v. State of Kerala (2003 (2) KLT 929) speaking through J.B. Koshy. J. exhaustively considered the whole gamut of “further investigation” under Section 173(8) Cr.P.C. and over-ruled the view taken by a learned Single Judge in Natarajan v. Sasidharan (2002 (1) KLT 499) to the effect that after taking cognizance of the offence and appearance of the accused, the Magistrate cannot order further investigation. The Division Bench had affirmed Joisy v. Sub Inspector of Police (2002 (3) KLT 172) wherein another learned Single Judge had held that even after taking cognizance of the offence the court can direct further investigation to be conducted under Section 173(8) Cr.P.C. The decision in Lonappan Nambadan v. Deputy Superintendent of Police (2003 (2) KLT 213) by yet another Single Judge of the Kerala High Court is also on the same lines as that of the Division Bench. Both Randhir Singh Rana v. State (Delhi Administration) (1997) 1 SCC 361 and Reeta Nag v. State of West Bengal & Ors. (2009 (4) KLT Suppl. 917 (SC) = (2009) 9 SCC 129) relied on by the learned Judge, do recognise the power of the investigating agencies to conduct further investigation under Section 173(8) Cr.P.C. even after the court has taken cognizance of the offence but proceed further to hold that at that stage the Court cannot suo motu order further investigation. If by doing so the court is only triggering into motion the power of the police under Section 173(8) Cr.P.C., the distinction drawn is really without any difference. Moreover, the restriction placed on the power of the Magistrate to suo motu order further investigation in Reeta Nag (supra) and Randhir Singh Rana (supra) was not approved by the Apex Court itself in Vinay Tyagi v. Irshad Ali @ Deepak & Ors. (2013 (1) KLT SN 69 (C.No. 57) SC = 2013 Crl.L.J. 754).

6. If the expression “further investigation” in Section 173(8) Cr.P.C. is interpreted to mean only investigation as is envisaged by Section 156(3) Cr.P.C., then, of course, such investigation can be conducted only at the pre-cognizance stage and it is not permissible for the court to order under Section 156(3) Cr.P.C. investigation at the post-cognizance stage. But with due respect, the further investigation which is envisaged by Section 173(8) Cr.P.C. is not confined only to the pre-cognizance investigation which is comprehended by Section 156(3) Cr.P.C. In my humble view the Division Bench in Abdul Latheef & Ors. v. State of Kerala (2014 (3) KLT 905) had laid down the law correctly and the verdict of the Division Bench was binding on the learned Judge who, in my opinion, was not justified in refusing to follow the same.

NOTABLE EXCERPTS

"Courts always lean in favour of advancing the cause of justice where a clear case is made out for so doing, since justice and reason is at the heart of all legislation."

 -- Rohinton Fali Nariman, J. in M.P. Steel Corporation, C.C.E., 2015 (2) KLT 996 (SC)

"If a species goes extinct, it's lost forever. Any aesthetic value it once had is gone. As Theodore Roosevelt said, "When I hear of the destruction of a species, I feel just as if all the works of some great writer have perished."

 -- Dr. A.K. Sikri, J. in Union of India v. Zavaray S. Poonawala (2015) 7 SCC 347)

"In a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of. These are crimes against the body of a woman which is her own temple. These are the offences which suffocate the breath of life and sully the reputation."

 -- Dipak Misra, J. in State of M.P. v. Madanlal (2015 (2) KLT 125 (SC)