No Retirement for Law

(By K. Ramakumar, Advocate, Ernakulam)

Members of the Bar may have felt bemused to read an opinion of one of the greatest Judges of India, which was published in the Hindu daily dated 3.11.2001 under the caption "Balance between the Bench and the Bar". Embellished as usual by his enormous and enviable command of language and inimitable style of writing, the comments were combative, confrontationist and spiky. Not a day passes in Kerala, without newspapers splashing speeches, comments, opinions from the irrepressible erstwhile Judge on almost every subject under the sun ranging from Molecular energy to the Mosquito menace in Kochi. Is there anyone else who can with ease and authority enthrall his audience alike, in such diverse gatherings as the Rationalist Forum and the Chinmaya Mission, the Indo American Friendship Association and the Iscus, the same day?

One thing must be said to the credit of the very eminent and energetic retired Judge. He did not choose the easy way of hitting the headlines (which he immensely enjoys) by opting for one Commission or the other, or arbitral assignments fetching fabulous fees fixed by oneself or hovering around the corridors of power seeking post-retiral positions. He, on the other hand is engaged even now in varied and variety of people's causes which keeps him in the centre of the public eye. Easily and undisputedly Sri. V.R. Krishna Iyer, a retired Judge of the Hon'ble Supreme Court continues to be one of the popular and eminent Judges of the country. It was inconceivable at one point of time, even to think of a Supreme Court without Sri. Krishna Iyer.

Yet, after his retirement he had developed a sort of sally to sneer and snipe at the very seat he had once occupied, and which he had strived hard to save from criticism, even of the fair variety. Remember, he was one of the parties to a judgment which extended the contempt jurisdiction even to the administrative side of the Court. See Barada Kanta v. Registrar reported in AIR 1975 SC 716. It is he, who now exhorts the Lawyers of Kerala who are chosen counsel for the Government to desist from furnishing their credentials in obedience to the directions issued by a Division Bench of the High Court consisting of the Hon'ble Chief Justice himself. Says Sri. Krishna Iyer:

"Any Government Pleader of self respect or self confidence will tell the court that it is not fair to ask for their credentials any more than it is for the bar to question the credentials of Judges."

The learned retired Judge must be knowing that in fact an enterprising lawyer did precisely that in Kumar Padma Prasad v. Union of India reported in AIR 1992 SC 1213 and succeeded too. For the first time in the country the Supreme Court ruled that its three top citizens, the President, the Prime Minister and Chief Justice of India erred in choosing an ineligible person to be the Judge of the Assam High Court.

To ask the members of the legal fraternity not to accept or accede to a direction issued from the court which deals with a "Lis" before it, concerning the validity of orders of appointment of certain lawyers as Government Counsel, amounts to a frontal assault on the Hon'ble Judges of the Court, their power and of course their prestige. Continues Sri Iyer:-

"I am sure the wise Judges of the Kerala High Court will act with restraint and not give room for the Bar one day to ask Judges about their own credentials. That will be chaos in the Cosmos".

The case is yet to be argued and the 'lis' yet to be resolved. Can a citizen, merely because, he happens to be a former Judge of the Supreme Court make such caustic comments or a strident call to the litigants, about a pending case telling in advance that the Judges are plainly wrong in calling for the details of the qualifications of the lawyers to help them adjudicate the issue? Can a retired Judge continue to sit in judgment over the Judges who are seized of an issue, before they themselves pronounce on it? Not, in the view of the Supreme Court, of which Sri. Krishna Iyer was himself an inseperable part, for some time. In Re P.C. Sen (Criminal Appeal No. 119 of 1996) the Apex Court elucidated the law on the point as follows:-

"The law relating to contempt of Court is well settled. Any act done or writing published which is calculated to bring a Court or a Judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the court, is a contempt of Court: R. v. Gray, (1900) 2 QBD 36 at P.40. Contempt by speech or writing may be by scandalising the Court itself or by abusing parties to actions, or by prejudicing mankind in favour of against a party before the cause is heard. It is incumbent upon Courts of Justice to preserve their proceedings from being misrepresented for prejudicing the minds of the public against persons concerned as parties in causes, before the cause is finally heard, has pernicious consequences. Speeches or writings misrepresenting the proceedings of the Court or prejudicing the public for or against a party or involving refelction on parties to a proceeding amount to contempt. To make a speech tending to influence the result of a pending trial, whether civil or criminal, is a grave contempt. Comments on pending proceedings, if emanating from the parties or their lawyers, are generally a more serious contempt than those coming from independent sources. The question in all cases of comment on pending proceedings is not whether the publication does interfere, but whether it tends to interfere with the due course of justice. The question is not so much of the intention of the contemner as whether it is calculated to interfere with the administration of justice."

The test evolved and applied by the Supreme Court was whether the words complained of were in the circumstances calculated to obstruct or interfere with the course of justice and due administration of law. The comments made by the erudite retired Judge, evidences an inclination to ridicule the Hon'ble Judges who ordered the Advocate General to produce the certificates in support of the appointment of certain lawyers as Counsel for the Kerala Government. They do, affect the public minds by casting a doubt that the direction issued by the Bench was of doubtful validity or propriety. They therefore undoubtedly interfere with the due course of justice and is an attempt to deflect it. This is not to suggest that the Judges constituting the Bench are not made of sterner stuff and are likely to cave in at cheap jibes at them. That, hardly is relevant as what is important in such cases is not whether the comments did affect the pending proceedings but only whether they have a tendency to do so. The motive or intention of the commentator are wholly irrelevant. So is his status in life "Law is the king of kings, for more greater than they" says one of our Upanishads. "May you ever be so high the law shall be above you" - believes the British.

Less, severe comments have been condemned by the Division Benches of the Kerala High Court itself:-

"Any publication on a pending judicial proceeding with the likely effect of interfering or tending to interfere with the administration of justice would be contempt, notwithstanding the fact that it was made as a continuation of a public debate on a matter of general importance. The statutory provisions in the Act are clearly indicative that comments or statements in relation to pending judicial proceedings, with objectionable tendencies as envisaged under the Act, would be outside the pale of contempt only subject to the satisfaction of the requirements of the exceptional provisions such as Ss.4 and 5". - See 1986 KLT 303.

"It is well settled that abusing and vilifying parties to a pending proceeding in relation to the proceeding, amounts to contempt. The fact that the writer did not desire or intend to prejudice the case is immaterial (except as to the extent of his punishment), if the court is satisfied that such was the obvious and necessary result of his words. If the publication is of such a nature calculated to obstruct or interfere with the due course of justice the person who published, will be guilty of contempt whatever be his intention in publishing the same. It would, therefore, be contempt of court to publish in papers during the pendency of a case, matters derogatory to the parties which must necessarily prevent them from obtaining a fair trial of the action. It is no defence to a charge of contempt that the offensive article never reached the eyes of the court or that the court was not prevented from performing its duties fairly and properly or that the respondent had no disrespectful or contemptuous design of reflecting upon the dignity of the court, or that the respondent did not know the nature of the publication or that the articles published during the trial were true and impartial statements of news and facts, or that they were published without intent to injure the parties or interfere with the administration of justice." - said the Court in 1965 KLT 871.

Nor does the view expressed by the eminent jurist on the legal issue involved represents the correct position in law. He appears to altogether ignore the progress made probably after he left the Supreme Court, in the law relating to the fields of public contracts and to appointments to public offices. Today, the position in law is that unlike a private party every order of the Government is amenable to be tested on the touch-stone of Art.14 of the Constitution of India including in the field of contract. See for instance, the observations of the Supreme Court in Sreelekha Vidyarthi's case:

"Thus the wide sweep of Art.14 undoubtedly takes within its fold the impugned circular issued by the State of U.P. in exercise of its executive power, irrespective of the precise nature of appointment of the Government counsel in the district and the other rights, contractual or statutory, which the appointees may have."

It is not as if a "Progressive Judge" (Sri. Krishna Iyer would like to call himself one and likes others to call him so) is not aware of the substantial strides that the Supreme Court has made in the field of Administrative Law in India, even overtaking the conservative view that still prevails in the country of its origin, the United Kingdom.

With great respect therefore to one of India's front ranker in the forensic field, his comments do constitute contempt, do not represent the correct position in law and do have a tendency to interfere with the pending proceedings before the High Court of Kerala.

Shah Bano's Case in Retrospect

(By Kaleeswaram Raj, Advocate, High Court of Kerala)

The recent decision of the Supreme Court on the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 is significant in several ways. In Danial Latifi & Ann v. Union of India, 2001 (3) KLT 651, the Apex Court held that the entitlement for maintenance under the Act is not confined to 'iddat' period. On the one hand the judgment removes the doubts if any regarding the true meaning and intent of S.3 of the Act concerning the divorced women's entitlement for maintenance. On the other and more importantly, the judgment shatters the misconception that the legislation of 1986 was an attempt to sabotage the 'revolutionary' verdict in Shah Bano Begum's case (AIR 1985 SC 945). Though the Apex Court attributed motive to the statute in para 28 of the judgment in Danial Latifi's case, it only remains as a passing comment.

The notion that Shah Bano judgment was a seminal one which came to the rescue of deserted Muslim Women is a myth. The propaganda that the legislation of 1986 was designed to woo the orthodox Muslim sect also is equally a myth.

In Shah Bano's case the Supreme Court held that a divorced Muslim Woman is entitled for maintenance as in the case of women belonging to other sects. The Court also held that Talaq does not ipso facto or ipso jure take away the women's right for maintenance. Shah Bano judgment was delivered in the context of S.125 of Criminal Procedure Code (Cr.p.C.) which is the general provision for maintenance, irrespective of religion or personal laws.

Therefore, it is clear that Shah Bano judgment has only interpreted S.125 of Cr.P.C. as amended in 1973. It has not in any way widened or modified the scope of the said provision. Therefore it goes without saying that judgment in turn perpetuates the inherent limits and deficiencies of S.125 of Cr.P.C. It is also not possible nor plausible to contend that courts are entitled to fill up the legislative dearths. To limits of S.125 may be broadly summarized as follows:-

1. The section provides only for bare maintenance for subsistence. The maximum amount that could be awarded as per the provision is Rs.500/-. In the celebrated judgment in Shah Bano's case, she was awarded a monthly maintenance of Rs.25/- by the learned Magistrate. Even in cases where the husband earns substantial income, there is no provision in Cr.P.C. to take the financial position and standard of living into consideration and to fix a higher amount due to statutory ceiling. (Only very recently the Parliament has passed a bill removing the said ceiling).

2. Cr.P.C. contains provisions only for maintenance and not for other incidental entitlements that may arise out of the matrimonial bond. As such the code does not visualise the claim of a deserted wife to get back the properties like ornaments, land etc. which would have been obtained by the husband at the time of marriage.

It was in this context that the legislation of 1986 made a radical change in the law relating to maintenance. It is fallacious to think that merely due to incorporation of principles of personal law (Shariah) a statute becomes conventional or orthodox. It is equally fallacious to argue that negation of personal laws (as in Cr.P.C.) would perse make the legislation progressive. From the women's point of view, the statute of 1986 has been more beneficial and purposive when compared with the general law as explained in Shah Bano Begum. S.3 of the statute would show as to how the deserted women are taken care in a more pragmatic and comprehensive manner. The relevant part of the provision is extracted below:-

"Maher or other properties of Muslim woman to be given to her at the time of divorce- (i) Notwithstanding anything contained in any other law for the time being in force, a divorced woman shall be entitled to-

(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;

(b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth or such children;

(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at anytime thereafter according to Muslim Law; and

(d) all the properties given to her before or at the time of marriage or after the marriage by her relatives or friends or the husband or any relatives of the husband or his friends.

(2) Where a reasonable and fair provisions and maintenance or the amount of mahr or dower due has not been made or paid or the properties referred to in clause (d) of sub-s. (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance mahr or dower or the delivery of properties, as the case may be,

(3) Where an application has been made under sub-s. (2) by a divorced woman, the Magistrate, may, if he is satisfied that-

(a) her husband having sufficient means, has failed or neglected to make or pay her within the iddat period a reasonable and fair provisions and maintenance for her and the children, or

(b) the amount equal to the sum of mahr or dower has not been paid or that the properties referred to in clause (d) of sub-s. (1) have not been delivered to her;

make an order, within one month of the date of the filing of the application, directing her former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may determine as fit and proper having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of her former husband or. as the case may be. for the payment of such mahr or dower or the delivery of such properties referred to in clause (d) of sub-s.(1) to the divorced woman"..........(Emphasis added)

Therefore it is clear that the provisions in the statute enable the Muslim wives to claim reasonable and fair provision and maintenance, to be made and paid to her within the Iddat period by former husband. On a plain reading of the statute, the entitlement for reasonable provision is contemplated apart from maintenance to be made and paid to her within the iddat period by former husband. Unlike Cr.P.C. the Act also provides for redelivery of properties obtained by the husband at the time of or after the marriage. The Act of 1986 also enables the courts to consider the income and standard of living while fixing the quantum of maintenance. It does not prescribe any upper limit as regarding the amount of maintenance.

Even before the present judgment by the Supreme Court, the Kerala High Court interpreted the provision in the Act of 1986 as follows:-

"The objects and reasons are stated in unmistakable terms that the purpose of the enactment is to protect the interests of divorced Muslim women. The divorced Muslim women are thus entitled to a reasonable and fair provision and maintenance. The attempt should be to give meanings to all words used in the clause. The Parliament must be taken to have decided to provide the divorced woman with maintenance for the period of Iddat and also a reasonable and fair provision for her. Both these should be paid and made to her during the Iddat.' The word 'provision' means an amount set apart towards a known liability, the amount which cannot be determined with accuracy. The known liability of a husband is to provide for the future of the divorced Muslim woman. He will not be in a position to determine the amount with substantial accuracy. It is for that purpose he has to make provision. That provision will be entirely different from the maintenance due to the divorced Muslim woman for the period of Iddat. The gift, to be paid by the husband at the time of divorce, as commended by the Quran, is recognised in sub clause (a) of clause (i) of S.3. of the Act. This liability is cast upon the husband on account of the past advantage received by him by reason of the relationship with the divorced woman or on account of the past disadvantage suffered by her reason of matrimonial consortion. It is in the nature of compensatory gift or solatium to sustain the women for her life after divorce. In accordance with the principles of Islamic equity the said provision or compensation or support from the former husband is wife's right. This right has been given legislative recognition in the above provision" (Chelangadan Ali's case, 1988 (2) KLT 141).

In the same case S. 3 of the Act was deconstructed by the Kerala High Court, in the following manner:-

"The words appearing on either side of the word 'and' must be taken to have been joined together by it. Those words must be taken to represent two different categories. If those two words stand for two different objects and they are joined together, then words 'provision' must mean something other than 'maintenance'. Viewed in that manner it is evident that a divorced Muslim woman is entitled not only to maintenance for the period of 'lddat' but also to a reasonable and fair provision for her future livelihood from her former husband". The High Courts of Bombay, Gujarat, Punjab and Madras followed the Kerala View.

However, strangely and unfortunately, a Full Bench of the Andhra Pradesh High Court in Usman Khan's case, (AIR 1990 AP 225) interpreted S. 3 as follows:

"There is nothing in the section which can be read to mean that the husband is liable to make reasonable and fair provision and maintenance beyond the period of lddat". The court even interpreted the Shah Bano's judgment as follows:-

"The Act of 1986 has been passed in the wake of the decision of the Supreme Court in Shah Bano case and seeks to remove the difficulties that have arisen as a result of that decision in regard to the liability of the husband to pay maintenance to his divorced Muslim wife. Even in the case of Shah Bano, it is recognised that a Muslim women is entitled to maintenance under the Muslim law only during the period of Iddat. However, it is held that if she is unable to maintain herself then the liability of the husband to pay maintenance arise under S.125 of the Code. Therefore, inherent in the decision of the Supreme Court is the recognition of the principle that while maintenance during the period of Iddat is to be paid under the Muslim law, maintenance beyond the period of Iddat is envisaged only under S.125 of the Code". Thus the Andhra Pradesh High Court opined that "the intention of the legislature is manifestly clear that it envisages the making of reasonable and fair provision and payment of maintenance to the divorced wife commensurable with the period of Iddat to be paid within the period of lddat".

The fundamental flaw in the Andhra decision is that it was carried away by the popular notion regarding the legislative motive behind the Act of 1986. The Court also resorted to the interpretation of the judgment in Shah Bano's case for the interpretation of a subsequent statute. Thus the very methodology of the Andhra High Court suffered logical infirmities.

On a total evaluation one would be tempted to say that it was not the statute which was at fault. It was the misconceived interpretation of the statute that worked apparent injustice to the deserted Muslim women. But it remains as a strange paradox that Parliament was accused of turning 'Shah Bano Revolution' upside down. The uproars against the 1986 statute were accelerated by persons from political, media and even legal platforms. It resulted in one of the strongest supersitions in Indian Law which is now exposed by the Apex Court, though unintentionally and indirectly.

Shocking Arrears - Shaking Confidence

(By V. Bhaskaran Nambiar, Retd. Judge, High Court of Kerala)

The shock that there are huge arrears of cases waiting to be disposed by various courts cannot shake the faith and the confidence in the Judiciary.

2. Akio Morita, Chairman of the Sony Corporation once stated that the accent should be to find out how the mistake was committed and not who committed the mistake.

Gravity off the Problem

3. Keeping cases pending in the court of an inordinately long time makes mockery of our sense of justice. They are all cases where justice is, in fact, denied. In 1997, Kerala High Court had 220 sitting days. The total filings for the year exceeding 40,000 and the disposal above 35,000. But then, the number of pending cases upto 31.12.1997 is a whopping 79,000 and odd. Of these how many have been pending for even ten years is not known.

Why this Arrears?

4. Formerly people approached Courts only as a last resort for redressal of, mainly, their personal grievances. Now people rush to court as the first step for redressal of their public grievances. The shift is from the individual to the community. Formerly, very few persons were aware of the legal problems and conversant with the remedies available. Now almost all are conscious of the constitutional rights and remedies - of course forgetting their constitutional duties. With the large increase in filing, there is likely to be delay in the disposal also. The trust in the judiciary, its impartiality, its independence, its wisdom, and its boldness in the dispensation of justice attract crowds and cases to courts.

"HOW" TO WIPE OFF ARREARS - BY FASTER DISPOSAL

A. "Instant Disposal"

5. It is necessary that cases are disposed of without any appreciable delay. It is said that this object can be achieved by a faster disposal. Of course, there can be direction for quick disposal and directions are also often issued. These directions cannot however be understood as directions for disposal without hearing the parties, without considering the contentions and without deciding on the merits of the case. A faster disposal, after giving fair and reasonable hearing, quickly dealing with the crux of the problems and squarely dealing with these questions on merits will be ideal. But if there is an obsession to dispose of cases, without anything more, it will be a travesty of justice. Disposal can be fast, but not at the expense of justice. Disposal cannot be for "disposals sake". The anxiety to dispose cases faster cannot tend to impatience on the bench and intolerance of advocates at the bar.

A Judge is not remembered for the speed with which he disposed of his cases. He is remembered, respected by posterity through the judgments he delivered and not in the number of cases he disposed. The quality of the judgments qualifies for immorality. This is forgotten by many and remembered by few!

B. "Studious Approach"

6. Faster disposal of cases has different facets of approach. I remember Justice Hidayatulla mentioning in his "Miscellany" that he was flabbergast at the large number of 'briefs' brought to his Bunglow, on the first day of his assumption of office as Judge of the Supreme Court and wondered whether he could finish reading all the papers even if he sat for the full night. Next day, one of his colleagues advised him to read only 50% of the briefs starting from the bottom, reminding that the top 50 would have been read by the senior Judges: The practice now followed in the Supreme Court is for the Judges to do their 'homework' and then when the cases are called ask the counsel one or two pertinent questions, the answers to which decide the fate of the cases.

7. This is substantial work for the Judges, but little wastage of time in court. This method can be safely worked at least by the High Courts. Sometimes it happens, that the Judge may read and "study" the brief the previous day, but still he could like to hear the cases at length and then decide. This is criminal waste of precious judicial time. No Judge can convince a counsel that his client has no case. If the client has no case the Judge decides against him, not necessary to convince the counsel.

8. There is everything to be gained and nothing to be lost when the Judge reads the "briefs", understands the issues in controversy and focuses his attention only to those vital aspects. There is no necessity for a detailed hearing thereafter.

9. I remember a case where a Judge known for his learning and studious habits, his penchant for popularity and his "pretence" that he did not read a single brief at home, called me to argue my case for admission. In the middle of my submission, the Judge asked me what I have to say about paragraph 32 in the judgment of the lower court. I pretended that I was seeing paragraph 32 for the first time and in view of my ignorance unpreparedness' to meet the Judge's point, the Judge scored and my appeal was admitted!

C. "Limited Discretion"

10. I shall rely on my fairly long practice at the Bar and my comparatively short tenure on the Bench to recall one mode of dispensation of justice.

A Judge may be impressed at the first hearing and may be inclined to grant an ex-parte stay. He would, however, rightly be interested in hearing the opposite side, usually the Government in writ matters, before the interim stay is made absolute. He therefore restricts the interim stay for a limited period, in the fond hope that all the necessary facts will be placed before the court before the expiry of the interim order. The object is admirably commendable. The Judge cannot be faulted. But what happens is a different story. There is no cause shown for vacating the interim stay. No materials are collected, prompt instructions are not received in time and the interim order for the limited period gets extended from time to time. The cause list is flooded with miscellaneous petitions. The Court has time only to pass orders on the miscellaneous petitions and no time to dispose of the case finally. The one method is to stop giving interim relief restricted to small periods. An ex-parte interim order can be brought up by concerned parties/counsel for being vacated when they are ready. Interim relief restricted to a limited period is thus a drag on faster disposal.

D. The Bottleneck of disposal

11. We have an archaic procedure, an unnecessary complicated procedure, a procedure intended to protract proceedings and perpetuate injustice, the CIVIL PROCEDURE CODE. The procedure has to be simplified. The first step to reduce the mounting arrears should be to scrap the Civil Procedure Code. This can be done by an appropriate legislation or by judicial interpretation that all the provisions of the code are merely 'directory', and a failure to follow the prescribed procedure does not entail any rigid consequences.

12. It is sufficient if every Court/Tribunal follows the principles of natural justice. The parties to the cases should be given a reasonable opportunity for a fair hearing. Both sides can be heard, and all sides can be given opportunity to adduce the necessary evidence. Photostat copies certified to be true can be admitted in evidence without insisting on the originals unless there is dispute about the genuineness of the copy or the original. We are aware that some times chief examination of even one witness in court takes several days. This can be avoided by chief examination of a witness on the basis of his affidavit on which there can be cross examination.

13. Lengthy Judgment

At the trial stage, the judgments necessarily have to be lengthy, the pleadings have to be summarized, the issues have to be framed, the evidence has to be considered, the points have to be decided and the conclusion recorded. As the case goes to higher courts, the length of the judgments can be considerably reduced, and a stage may be reached when it is no longer necessary to summarize the pleadings, mention about the rival contentions advanced and refer to all the decisions cited in the Bar. When the law is already settled by the decision of the higher court there is, I think, no necessity to refer to all the previous decisions on which the Supreme court itself based its decision. The latest decision of the Supreme Court is more than sufficient for disposal. Brevity can be the hall mark of a good judgment.

14. Additional Courts & Judges

It is usually and freely suggested that there has to be an increase in the number of Judges, and increase in the number of Courts to cope up with the mounting arrears. That may to some extent - to a small extent be helpful. It is not invariably a safe, sure practical solution "to remedy an alarming practical situation".

The Constitution was amended in 1977 authorising Parliament to establish Administrative Tribunals, to specify their jurisdiction and powers etc. Administrative Tribunals were constituted to reduce the burden in various courts including High Court and to give speedy relief to the aggrieved. After about 15 years, taking stock of the performance of the Tribunals the Supreme Court in Chandrakumar's case observed, "The reasons for which the Tribunal were constituted still persist; indeed those reasons have become more pronounced in our times". The Supreme Court continued, "That the various Tribunals have not performed up to expectations is a self evident and widely acknowledged truth". Authenticated reports mentioned "Not all of them, however, have inspired confidence in the public mind. The reasons are not far to seek. The foremost is the lack of competence, objectivity and judicial approach.

The failure of some of the Tribunals for having not performed upto expectations, is mainly because the recruitment and appointments were not made with reference to the experience and practice required in the specified field, namely service law and the Tribunals became only the "training ground" to "learn" service law for the first time. By the time they team this branch of the law, the arrears would have already soared and it would be time for leaving the office. Additional court/Tribunals can therefore be constituted if there are persons competent and experienced who can deal with the subject branches of law where the arrears require to be reduced. Thus a criminal lawyer cannot be expected to deal in service law as effectively as a person who have been dealing with service cases. Similarly, a sound Civil lawyer Judge cannot be expected to reduce the arrear of case on the criminal side or in taxation matters. Thus if the various branches/heads where there are arrears are identified and an attempt is to made to find qualified, competent and experienced persons who can tackle the problem of arrears with ease and confidence, the appointment of new Judges and the addition of courts are most welcome.

Dread of the Rod

(By T.P. Kelu Nambiar, Advocate, Ernakulam)

The Nineteenth Century poem in prose, 'Dread of the rod alone restrains the bad, controls the good", could only be considered sheer prosaic and absolutely archaic in the twenty -first century. Public spirited Gandeevan's prayer for 'directions in the matter of banning corporal punishments in schools in the State', was rejected out of hand by a Division Bench comprising Chief Justice Mrs. K.K. Usha and Mr. Justice Kurian Joseph, in judgment dated the 16th December 2000, in O.P. No. 34080 of 2000. It is seen that the Writ Petition had come up for admission hearing on the 16th December, and judgment dismissing the same was rendered on the 16th itself. That means, the dismissal was instant, at the admission stage itself, without issuing notice to the respondents, and without their Lordships taking time for consideration. It is the respectful submission of this writer that the case should not have been dealt with in such a sudden-death fashion, because the controversy rate of the subject has been at a very high percentage during recent times. In fact, this was a fit case for extending a general invitation to the bar to air assorted/diverse views; and even for inviting help from a friend of the court (amicus curiae).

The judgment in Gandeevan's case seems to have missed the difference between corporal punishment and imposition of penalty for breach of discipline of the school. Paragraph 2 of the judgment refers to Chapter IX of the Kerala Education Rules, containing rules on 'Discipline'. Paragraph 3 of the judgment deals with the contention concerning corporal punishment: and links this aspect with rules on 'Discipline' earlier stated. The learned Judge think, wrongly though, that corporal punishment could be prescribed by rules, as part of 'Discipline' as contemplated in Chapter IX KER. That is why it is observed that 'it cannot be stated that use of canes is absolutely unnecessary in schools', and 'in certain situations canes would prove to be useful'; but 'these are all matters for the school authorities to consider while framing the rules of discipline as warranted under R.1'; and 'it is not for this Court to intervene in such matters where statutory provisions are there to take care of such situation'. The statutory provision referred to is R.17, whereunder it is left to the Director of Public Instruction to take decisions.

The submission of this Writer is that the attention of the learned Judges was not invited to the fact that Chapter IX KER deals with imposition of penalty for breach of the rules of discipline; and the punishments provided are censure, suspension, dismissal or imposition of fine; this Chapter does not even remotely contemplate corporal punishment; and this Chapter does not permit the school authorities to frame rules prescribing imposition of corporal punishments like beating, caning, slapping, or pinching. No rule could be framed prescribing the number of beatings, canings, slaps, or pinches for particular breach of discipline.

To the best of my knowledge, (subject to correction and chastisement), the only reported case concerning infliction of corporal punishment on a student is the one reported in ILR 45 Madras 548 (Sankunni v. Swaminath Pattar). A Division Bench of the Madras High Court, comprising Mr. Justice Oldfield and Mr. Justice Venkatasubba Rao, considered the question in separate judgments, concurring though. That was a case in which the head of an educational institution had inflicted corporal punishment on a student, giving him. 'two smacks' with his hand on his cheek. The question was as to whether the infliction of this chastisement was within the powers of the head of the institution and, further as to whether the head of the institution was liable for damages for such infliction of chastisement.

Relying on the ancient Roman Law, the English Common Law and the general rule laid down by the English Courts, and not without noticing R.59-A of the Madras Educational Rules, 1918, which sanctioned corporal punishment in schools for specific cases of mis-behaviour by students, the Division Bench of the Madras High Court concluded that for purposes of correction the school master may inflict a moderate and reasonable corporal punishment. The learned Judges were not unaware of immoderate or unreasonable corporal punishments and punishments imposed on account of ill will or malice. The ultimate decision came to in the case was with great caution, and not without hesitation. It is submitted that the decision in Sankunni's case should rest on the facts and features of that case. That decision cannot be general authority for the position that infliction of corporal punishment on students is justified. A reading of the judgment would show that leading Advocates who appeared on the case for either side, namely Sri. Chettur Madhavan Nair and Sri. Alladi Krishnaswami Iyer, and the learned Judges themselves, were very cautious in dealing with this sensitive question.

As R.W. Emerson said, the secret of education lies in respecting the pupil; the aim of education should be to teach the child to think, not what to think. Teachers should be guided by Horace Mann's theory:

"The object of punishment is the prevention of evil, it can never be made impulsive to good".

It should also -be remembered that teachers of today are not Gurus. A teacher gives only knowledge; but a Guru Gives himself. Times have changed. And the question of inflicting corporal punishment on students in these days should be considered with reference to the changes in imparting and receiving instructions; the changes in the method of teaching; the changes in the art of teaching; as also the standard of teaching. Oscar Wilde might not have been wrong when he said that everybody who is incapable of learning has taken to teaching.

The days of David Copperfield are gone. England has now banned corporal punishment on students. That is also the case in most parts of the United States and Europe.

I should venture the submission that Gandeevan 's prayers merited careful contemplation, not casual consideration.

Tail Piece: "I have always felt that the true text book for the pupil is his teacher."

- Mahatma Gandhi 

A Testament to a Towering Judge : Justice P.T. Raman Nayar

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

He asked me, casually though: At this stage of your law practice, when you are, verily, getting older, but, sure, not old, what are you proud of? I answered too pat, with little hesitation: I am proud of having had the opportunity of appearing, and arguing, before Mr. Justice P.T. Raman Nayar, when I was a fledgling lawyer.

Justice P.T. Raman Nayar, pushing 92 now, was a great Judge; not a Judge wearing the cloak of greatness as a second skin. He was a Chief Justice who symbolized the institution dignity of the State Judiciary. He was one of the great seminal minds of the twentieth century. He was the voice of justice triumphant. I cannot think of him without an elevation. Nobody has followed him even at a modest distance.

Sri. Raman Nayar stands high in his own. In his brave judgments, he set Government in its right place. He is a profound portrait of a full man/Judge. He is a Judge of permanent popularity and reputation. There is no blot on his escutcheon. He stands out as the greatest judicial figure of the second half of the twentieth century, of a stature beyond controversy.

Seemingly a remote and authoritative personality, Sri. Raman Nayar is verily an uninhibited person. He conceals a goodness of heart beneath a haughty posture. Without tarrying for an expression to describe him, I say, he is a 'Colonel Newcome' gentleman. To guests and friends, he seemed a gentleman of leisure, though he was crowded with official and judicial duties. In character, he is an example of a man of great knowledge and wisdom, un-diverted by anybody from the task he had set himself.

Justice Raman Nayar is the one Judge who had understood the underlying meaning of Dr. Samuel Johnson's famous passage in The Rambler: "Reticence and submission are very carefully to be distinguished from cowardice and indolence". He knew the meaning of lawyers' proud submission and dignified obedience. What the lawyer abandoned, he defended. He knew that a Judge is not a 'justice police'. He used to disclose his mind at the hearing of a case, for he knew for certain that the court is not playing chess with the lawyer. His Court was not a professional blackhole for lawyers. He is never a braggart or an egoist. He is a consummate gentleman, who does not wear the I tag. He never behaves beyond the rules of politeness. He never brought about the situation: "Bar Bleeds; Bench Smiles". The search for another Raman Nayar - like, would certainly be elusive.

Born to Krishnan Nayar - Lakshmi Amma couple, in January 1910, at Mangalore, Sri. Raman Nayar had his primary, secondary and tertiary education at Mangalore, Kakkinada, Calicut and Madras, following his father's official displacements. After obtaining Degree in Law, he was apprentice-at-law, in the High Court of Judicature at Madras, under the great lawyer Sri. O.T.G. Nambiar. It was while so, he was selected for the I.C.S. (Indian Civil Service) in 1932; from 1932 to 1934, he underwent probation for the I.C.S. at St. Chatherine's College, Cambridge; and he was covenanted in 1934. He worked in diverse capacities, as Assistant Collector, Sub Collector, City Magistrate, Additional District and Sessions Judge, District and Sessions Judge, Registrar, High Court of Judicature at Madras, Joint Secretary to Government of India in the Ministry of Law; and Special Secretary, Law Department, Government of Kerala. In 1957, Sri. Raman Nayar was appointed Judge, High Court of Kerala; and he retired as Chief Justice in 1972. He was Judge for fifteen years and counting; and was simply the best address in the Kerala High Court during the period. As a Judge, he made his reputation suddenly and easily. He was the first and the last I.C.S. - Judge of the High Court of Kerala.

Mr. Justice Raman Nayar considered events greater than men; and that, he thought was his business, his duty, the thing he came into the judiciary to do, - and he did it, with a mind richly stored with detail, and brutally clear in its convictions, unmindful of applause or indignation. His judgments were aggressively original. He always dealt with legal aspects by the book. Courage was his greatest virtue. That mighty law giver never made the law stand on its head. You can hear his soliloquy in some of his judgments: "Justice is always right, not the Judge". He wrote judgments with a minimum of revision, for he was sure of the position. His energy was phenomenal. He was a Judge in whom intellect came to terms with genius, and both worked together. He was extracting from himself perfection. When he retired in 1972, something had gone out of the Kerala High Court that was irreplaceable, as the change was profounded when he was Chief Justice. That "old, learned, respectable bald head" (to borrow the respectful expression from W.B Yeats), broke through the judicial flaccidity and deadness, and succeeded in enlivening the entire system. And, when Mr. Justice RT. Raman Nayar departed from the High Court, what he had established also departed with him.

Raman Nayar's judgments remain the most durable element in his judicial achievement. They also reveal his strong originality, specialised vocabulary and dominant, even arrogant, control of his medium. His sentences, though labyrinthine, are comprehensible, lucid and powerful. Overall, though, he delivered judgments of contemporary urgency, - major period pieces, of masterful magnificence.

I still store the memory of that great, unique event on the 5th day of December, 1960. It was on that day, immediately after the marathon arguments were closed, Mr. Justice Raman Nayar started pronouncing judgment extempore in the Palai Central Bank Case (Reserve Bank of India v. Palai Central Bank Ltd. -1961 KLT 54). "I lose count of the number, but, between them (counsel on both sides), they must have taken me to close on a hundred books, both text books and judicial decisions". (Paragraph 14 of the judgment) It was in such a case, the judgment, full of profundity and compelling intensity, was rendered extempore. I consider this judgment as the greatest of the Kerala High Court. If this judgment is forgotten, a precious possession will be lost. Mr. Justice Raman Nayar has rendered authoritative and great judgments in all branches of law; civil, criminal, personal, constitutional, administrative, company, banking, taxation and the rest. This is unique, indeed; yet to be achieved by any other; and this amazes me no end.

A severe lover of justice and a precise lover of truth, Justice Raman Nayar is a man 'constant and pertinacious, and not to be wearied with any pain,' to borrow the Clarendon expression. He continues a 'Justice' even after retirement, for he has not sought any other employment, or engaged in legal practice. 'Once a Justice always a Justice', he remains.