A Dead Proviso

(By R. Rama Narayana Prabhu, Advocate, Ernakulam)

As we all know, all the tenants under the Kerala Buildings (Lease and Rent Control) Act, 1965 are entitled for protection against eviction under S.11(3) by the grace of 2nd proviso to S.11 (3) of the Act. it is also a well settled preposition that whoever claims protection under any proviso shall prove that he is entitled for the protection. When it comes in the case of 2nd proviso protection the burden to prove the same is heavy on the shoulders of tenants.

2. Before going in deep with regard to the various aspects of the 2nd proviso, it will not be out of context to mention about the background for the Rent Control Legislations. Act 2 of 1965 is a welfare legislation, intended to prevent illegal and arbitrary eviction of tenants by the landlords, under the ordinary law. In Nagindas v. Dalpathram (AIR 1974 SC 471) the Apex Court of India justified the Legislative intention behind the various Rent Control Legislations in the country.

3. It is also to be borne in mind that, in order to meet the socio-economic crisis which was the off shoot of the Second world war, the Legislatures enacted various Rent Control Legislations such as the Madras Buildings (Lease and Rent Control) Act, 1949, the Travancore-Cochin) Building Lease and Rent Control) Order 1950, the Kerala Buildings (Lease and Rent Control) Act, 1959 etc. in order to check illegal and arbitrary eviction and demand of higher and unconscienable rent by the landlords.

4. But, what about the present socio-economic condition prevailing in the State? If we are keeping a close eye, it can be seen that the socio-economic conditions are changing rapidly. Now, the tenants are no longer a weaker section as they were. They are affluent and strong enough to stand on their own legs, without any support from the landlords. The tenants 'now a days' are not dependent on their landlords for the building. Most of the tenants are having buildings of their own and the remainder is capable of putting up the buildings. They are making handsome profit out of their businesses, conducted in the tenanted buildings.

5. Now we return to 2nd proviso to S.11(3) which reads as follows:- 'Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business'.

There are two limbs for this proviso (i) if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on the such building and (ii) and there is no other suitable building available in the locality for such, person to carry on such trade or business.

Here the tenant has to prove both these limbs then only he will be entitled to the protection, otherwise not. In order to prove the first limb, the tenant can produce books of accounts, balance sheet etc. of his business. If the tenant has other business apart from the business conducted in the tenanted premises, he has to produce relevant documents of that business before the Court for a comparison as to his main source. But the irony is that, if a tenant is conducting a 'multi crore' turnover business in the tenanted building and conducting a 'multylakh' turn over business in another building, is it a fit case to grant protection saying that the tenant is depending for his livelihood mainly on the income derived from the 'multi crore' turnover business carried on in the tenanted building? The answer is 'No'. Then how can the Court grant benefit to a tenant who is really depending for his livelihood mainly on the income derived from the trade or business carried on in the tenanted premises? The answer is very simple. He shall produce all the relevant documents of his business to prove the same before the court and also adduce oral evidence to that effect and here the court can adopt the 'test of comparative hardship' to ascertain whether the tenant is entitled for the protection of first limb of second proviso to S.11(3) of the Act.

6. The test of 'comparitive hardship' envisaged under S.11(10) suits to second proviso to S.11(3) rather than to S.11(8). The Court, on the evidence on record, can come to a conclusion by applying the said test. If the available evidence leads to a irresistible conclusion that the hardship which may be caused to the tenant by granting eviction will out weigh the advantage to the landlord, it may grant protection to the tenant as to first limb otherwise not. By this test of comparative hardship the Court can do justice to those tenants who would be on roads if the eviction is ordered. Hence word 'livelihood' assumes great importance in deciding the matter.

7. Then comes the second limb:- Here the tenant has to prove that no other suitable buildings are available in the locality. The tenant cannot escape from the burden saying that it is a negative proof. In landmark decision reported in 1976 KLT 1 (D.B.) our High Court held that 'it is capable of easy and positive proof by examination of Accommodation Controller or such other effective means'. One could see many practical difficulties in relying the 'vacancy register' maintained by the Accommodation Controller. Invariably the 'Vacancy Register' also will be 'Vacant' and to the contrary one could see numerous new building bearing 'to let' boards. Here the words 'such other effective means' employed in 1976 KLT 1 assumes great importance by which the tenant is duty bound to plead and prove by effective means that 'no other suitable buildings are available in the locality'. The 'suitability' of the building may vary with the size of the pocket of the tenants. But by means of the relevant documents that to be produced by the tenant to prove the 'main source' the court can also come to a conclusion that whether the tenant can afford the building available in the locality, in deciding the second limb to proviso (2) to S.11(3) of the Act.

8. The decision of our High Court (D.B.) reported in 1999 (3) KLT 373 in my opinion created some confusion with regard to the 'burden of proof under second proviso to S.11(3). But the Hon'ble High Court of Kerala in another decision reported in 2000 (3) KLT 809 explained 1999 (3) KLT 373 and held that 'we do not see anything in the decision of this Court in Krishnankunju Raveendran v. Sukumara Pillai, which compells us to take a different view' and further held that 'mere oral assertion without any supporting materials to show the income is not sufficient to prove that the tenants are mainly depending for their livelihood on the income derived by them from the business carried on in the petition schedule building'. 'The evidence regarding the income derived by them is peculiarity with in their knowledge and the best available evidence should be produced by them', and the Hon'ble High Court settled another controversy by further holding that', 'It cannot be expected that a tenant would now get a building on the rent that he originally agreed to pay to his landlord, in the same locality and in the same town. Rents have gone up. He will have to pay the prevalent rent in the locality consistent with the economic situation now obtaining'. 'The use of the expression 'suitable building' can only mean suitable for his needs'. 'Thus the Hon'ble High Court interpreted the word 'suitable building' also.

9. On the analysis of the second proviso, facts and the case laws discussed herein above, one could see that the burden to prove the second proviso to S.11(3) of the Act becomes heavier and heavier on the shoulders of the tenants. The tenants have to plead and prove by cogent evidence, oral as well as documentary both the limbs of second proviso which is practically impossible. Proving of only one limb will not entitle the tenant for such protection. Hence one cannot be blamed in saying that the second proviso to S.11(3) of the Act is 'a dead proviso'.

The Right to Judicial Reforms

(By Kappillil Anilkumar, Advocate, Ernakulam)

Why should anyone go to a court of law spending his precious time, money, and energy if he does not get a fair trial and speedy justice? Our Constitution guarantees to every citizen the right to equality before law and equal protection of laws. The protection of law can be ensured only through courts and if there is no timely legal protection, it is no protection at all. The ecstasy of our freedom lies in the rule of law. If the nectar of liberty, equality, and fraternity are to be preserved for the generations to come, we should imbibe among ourselves the spirit of the Constitution. The fragrance of justice fades when there is delay and the decadence will lead to the ultimate destruction of all that we have inherited. The people will find it easier to take the disputes to the street rather than take them to courts.

Perhaps if anyone is comfortable with the present scheme of things and the inevitable delays in justice delivery system, he must be the one who belongs to the political folk. Understandably, the politicians of this country, irrespective of the colour of the flag he carries, want the status quo to continue as it suits them and none else. It suits them because as long as they could retain the justice delivery system weak and fragile, they can continue to bluff the millions with their fanciful and unrealistic promises they make and forget the same when they come to power. It suits them because, through delays only they can manage to bring down the common-man's faith in the justice delivery system and make the average citizen a perennial slave to the political masters. Obviously, an efficient, strong, independent judiciary is a nightmare for politician's unbridled control over the other two organs of the democracy, i.e., the executive and the legislature.

The lack of a strong political will have resulted in the denial of financial autonomy to our Judiciary. When we speak with lavish recklessness about the piling up of cases in the Courts, we forget that we do not have adequate number of Judges proportionate to our population. We forget that we do not have adequate physical infrastructure facilities in our courts for the efficient and speedier dispensation of justice. Comparing the salary and perks of a middle-level managerial personnel of a private sector IT Corporate, the salary and perks given to our Judges in the higher judiciary is far from motivating. We have consciously and systematically underestimated their work. We have miserably failed to estimate the amount of physical and psychological fatigue they experience in performing their role as Judges. We have failed to give them a conducive environment to perform by overloading them. The problem with us is that once we elevate a person to the judgeship, we start addressing him next only to Lord Almighty and treat him less humanly. We forget that the job of judging is the most difficult task ever known to mankind and it requires not only knowledge of law but also a divine insight guided by a sense of justice, dedication, and determination. He has to be warm and cold emotional and insensitive, kind and uncompromising, bold and humble, orthodox and liberal in the right proportions. Of course, the task is not meant for the meek and weak. The change from the lawyer hood to the judgeship is a process of re-incarnation in itself. It is an opportunity to re-invent oneself. Considering all these aspects, are we able to do justice to our Judges?

On the other day, there were press reports that from 1st April, there will be 1734 Fast Track Courts established all over the country at the rate of five each in every district. It was reported that the Central Government is going to spend Rs.500/- crores for this purpose. Is it going to solve the problem forever? Is it going to ensure speedier justice to the common-man? What is the modes operandi? Ad-hocism in judicial management is not going to solve any problem. First we should have a vision followed by a strong political will to strengthen the judiciary. Second the judiciary should be given financial autonomy. Third, the number of Judges should be increased both in the higher and subordinate judiciary proportionate to the population increase. Fourth the salary, perks, and superannuation benefits of the judiciary should be restructured making it par with the best in the world. Fifth, the selection process of Judges should give adequate weight age to knowledge of law, perceptive skills, intellectual ability, creative capabilities, and communication skills. Sixth, it must be ensured that every court should have its own self-contained infrastructure like building, spacious court-halls, furniture, and offices for the Judges and staff. Every court should have essential equipments like computers, photocopying machines, etc. with trained manpower to man them. Use of advanced information technology should be encouraged with proper training to the Judges and staff and the introduction of information technology in a phased and systematic manner will accelerate the efficient and speedy disposal of cases. Seventh, there must be a National Judicial Human Resources Development Programme aimed at proving periodic professional enrichment of knowledge to the subordinate judiciary. Eighth, there must be a separate judicial cadre for Management of Justice Delivery System, which involves planning, supervision, staffing, training, fiscal policy-making, co-ordination between other organs of the Government, etc. Ninth, the Law Commission should be entrusted to organise national and international seminars in India on topics of emerging legal issues facilitating participation of Judges of the High Courts and the Judges of equivalent courts from abroad. The High Court Judges should be given sabbatical leave to visit and study the legal systems of other developing countries. Tenth, the existing pedagogical methodology for training the subordinate judicial officers should be revised both in content and practice. Instead of the monotonous and repetitive classroom lectures, participate learning method should be adopted using case studies and class discussions. Apart from imparting training on use of computers essential judicial skills like process of written and oral communication, listening, rapid reading techniques, understanding body language, etc., should be made part of the curriculum. To achieve this, the first step is to train the trainers from among the lawyers and the retired Judges.

The onslaught of globalization and the spread of information technology demand the legal fraternity and the judiciary to wake up to the complex challenges ahead. We cannot remain recalcitrant by praising our own professional virtues. We should not hesitate to reconcile the irreconcilable truth of the day that a high degree of professionalism alone is going to rescue the system from the present rut and ret, meet and redeem it. It is our collective responsibility. If we fail, we will be failing the millions of fellowmen who inherited a Constitution that guarantees them justice, equality, freedom, and liberty; thereby we will be failing a Constitution we have avowed to uphold at all times.

Cause of Action

(By Mathew Philip, Advocate, Kottayam)

The registry of every civil court would look into your Original Suit, quite anxiously to find out one legal coinage. If perchance, it is not there, no doubt your suit will be rejected. Which is this magic word? You already guessed it, but I would like to repeat. cause of action.

I have serious doubt about this combination. Is it a misnomer? 'Cause' has its origin from the Middle English and Latin word 'causa'. This means the Anglo Saxon use began as early as AD 200. "Cause" according to my dictionary (Readers Digest Oxford-Complete word-finder) has this definite meaning - that which produces an effect or gives rise to an action. Then why a 'cause of action'?

Now let's leave the layman's weapon. What about the law dictionary? Black (Black's Law Dictionary) gives this definition - The fact or facts which give a person a right to judicial redress or relief against another. It is further elaborated as "a situation or state of facts which would entitle a party to sustain action and give him right to seek a judicial remedy in his behalf. I add one more description- the right which a party has to institute a Judicial proceeding.

What about cause of action when the great 'wheels of justice' rolling on? There were many many descriptions, but the substance remains the same. It is held that the expression means the bundle of facts which is necessary to be proved to entitle the plaintiff to a decree (AIR 1958 AP. 451), it is synonymous with the right to sue (AIR 1965 All. 590). Thinking in terms of the defendant it means everything which if not proved gives the defendant immediate right to judgment (ILR 58 Cal. 539). Supreme Court would define it as every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does comprise every piece of evidence which is necessary to prove (AIR 1985 SC 1289).

However, it has been held that cause of action is not intended to comprise every fact which may be proved in evidence. Bombay High Court held: The bundle of facts which constitute the cause of action in a Civil Suit does not and is not intended to comprise every fact which may be proved in evidence. It is only material facts which must be proved by the plaintiff before he can obtain a decree, that constitute the cause of action (ILR 1954 Bom. 1137).

Suppose a situation arises where the defendant denies the existence of material facts asserted by the plaintiff. Then it is held that cause of action has to be judged mainly from the allegations in the plaint, not from the defence set up by the defendants (1966 (2) Andh. WR 263, AIR 1974 Mad. 209).

CPC says the court within which cause of action wholly or in part arises, has got jurisdiction to try the suit. Can any court stake a superior claim on the ground that majority of cause of action arose within its jurisdiction? It has been held that its percentage to the whole cause of action is immaterial. Even if only one percentage of cause of action is arising within the jurisdiction of court A, the suit can be instituted in Court A (AIR 1965 Mgs. 316; 1989 (1) KLTSN 22 p. 13).

How the Courts apply this principle in a fact situation. It is widely held that issue of S.80 notice would not form cause of action. Of course, with a sound reason, conceding that S.80 notice is a condition precedent, it is still to be observed that it is something succeeding the cause of action. S.80(3) provides that the cause of action should be stated in the notice. In the circumstances it has been held that S.80 notice is not part of plaintiff's cause of action (AIR 1960 Cal.391). It is also observed that neither can issue nor service of S.80 notice can form part of cause of action. (AIR 1960 Cal. 458; AIR 1970 Pat. 212).

Consider a cricket match. When the entire dispute over the match was occasioned, discussed and settled in Calcutta and there the plaintiff through his agent was appraised of the decision, mere fact that the decision was conveyed to the plaintiff club by a letter received by the club at Sealdah, will not take the cause of action to Sealdah and give Sealdah Court jurisdiction (AIR 1969. Cal. 224).

What about cause of action, in infringement of trade mark. When a trade mark is registered at Madras and product manufacture there, will a suit lie against a defendant at M.P., in a Madras Court. It is held that Part of cause of action arose at Madras and hence a suit will lie (AIR 1991 Mad. 217).

Regarding contract, cause of action arises where the contract was made, or was to be performed, or performance completed or where in performance any money out of contract to which the suit relates is expressly or impliedly payable (AIR 1979 Pat. 120). Where a breach of contract is alleged, suit may be instituted at a place where the contract was made or breach was committed (AIR 1989 SC 1239).

An interesting question arose in a matrimonial cause. Plaintiff's wife was residing at J. She went to her mother's place at P where she kept her ornaments and returned to J. Subsequently she expired at J. Plaintiff filed a suit in a Court at J for the return of gold ornaments. Question arose as to whether the court at J has got jurisdiction to try the case. It has been held that the term cause of action had a very wide implication. It meant a bundle of facts which the plaintiff had to prove before he succeeded in the suit. The fact that the plaintiff's wife died at J was one of such facts. Therefore, the Court at J has got jurisdiction to try the suit (ILR1958 Cut. 180).

Finally, a forgery case. A draft obtained at Madras branch of a bank payable at its Bombay branch. Despite instructions to stop payment, Bombay branch honoured the same presented through a third party. It was held the whole cause of action stems out of the draft and Madras where the draft was issued would be also the forum for suit for damages (AIR 1983 Mad. 357).

A Constitutional Imbroglio

(By Sri. Mayakrishnan, Advocate, Ernakulam)

Ms. Jayalalitha has now been sworn in as Chief Minister of Tamil Nadu. A debate is going on its legality. Jurists and political pundits have aired their divergent views. What would be the effect present and future of the conundrum?

Ms. Jayalalitha's nomination papers were rejected by the Returning Officers under the authority of S.8(3) of the Representation of People Act she being disqualified as a person convicted. Needless it to say that the R.P. Act holds ground as constitutional and has its sway.

Governor of a State appointed under Art.155 is subordinate to the Constitution; more than a representative of the President. Thus the Governor is to abide by the Constitution and any other law enacted under it. In that view, the actions of the Governor should also not be derogative to the provisions of R.R Act. On these lines we cannot assume that the orders of Returning Officers rejecting nomination papers of Ms. Jayalalitha should not have been taken note of by the Governor of Tamil Nadu. Art.163 of the Constitution envisages that there shall be a Council of Ministers headed by the Chief Minister to aid and advise the Governor in the administration of the State. Art.164(1) empowers the Governor to appoint the Chief Minister and other Ministers on the advise of Chief Minister. Constitution does not fetter the power or authority of the Governor to appoint the Chief Minister. Constraint placed otherwise under Art.164(4) is that the person so appointed as Chief Minister or Minister, if not an elected member of that house shall cease to be so if he does not become a member of that house within six months of the appointment. The moot question is, if a Chief Minister appointed thus cannot or is not expected to become a member of that House within the period prescribed under Art.164(4), as there is an expectation otherwise, whether that appointment is lawful?

A probe into the legislative intent of S.8(3) of R.R. Act would reveal that a person convicted of any offence and sentenced lo imprisonment for not less than two years shall be disqualified from the date oi conviction and shall continue as such for a further period of six years since his release i.e. the disqualification runs to a minimum period of eight years for that person to become a candidate for election to Parliament or State Legislature. Ms. Jayalalitha could neither claim protection under S.8(4) nor immunity from the mischief of S.8(3) of R.P. Act in as much as her nominations were rejected under S.8(3) when she staked her claim to form the Government at Tamil Nadu. A perceived doubt nonchalantly arises; whether a disqualified contestant appointed as Minister under Art.164(1) can aspire to contest another election within six months. Such an eventuality can be only in imagination or on the fall out of a series of happenings in her favour. One can wish it. But, if all the wishes are dismounted and the ambitions left astray, a political error of perception stand created. The Chief Minister shall have to vacate the office and the Ministry become the prey. The obstinate members of the Legislature if again, after six months elects the outgoing disqualified Chief Minister as its leader and the Governor is required to appoint the same person as Chief Minister, a political imbroglio crops up. What next ? Nomination to the upper house under Art.171(3)(e). An action under Art.356 of the Constitution or a fresh election or ask the legislature party to elect a different leader, to which they are not obliged to. Will there be cogent reasons warranting an action under Art.356. Shall the Constitution be rendered otiose? These are all matters to be debated. However such a situation would put all concerned back lo the original dilema. Obviously the Governor shall have to exercise powers again. The Constitution does not limit the powers of the Governor and if it can be foreseen as discernible from S.8(3) of R.P. Act that disqualification (if not likely to overcome) can be for a period of sentence and coming six years) what shall be the plausible step?

Our Constitution is silent whether the Governor can act otherwise or not. But it connote the choice of the Governor is not limited, leading to an implicit understanding that the Governor is empowered to exercise discretion. Governor's role as a guardian of Constitution is undisputed. A scrutiny of Art.164 does not unleash a supposition that the Governor has abiding duty to invite the chosen leader of the legislature party, though we follow it as a convention, to form the Government, when that person is not a member of the legislative assembly obviously by disqualification under R.R. Act. Exercise of discretion is necessarily demanded when a fair presumption of elimination of disqualification is an obscure trajectory. The question remains whether the Governor is bound to invite the elected leader when that leader is disqualified for past deeds to become a member of the house for the time being. The answer is in the negative going by the Constitution. We are entitled to import such a logical conclusion that the Governor can decline to invite the elected leader to form the Government, if the Governor in exercise of the discretion is satisfied that such invitation is apparent to the Constitutional mandates, if it cause a ruin of spirit of the Constitution or ushers a stalemate. The word 'Discretion' has been subject of judicial scrutiny more than once. Hon'ble Supreme Court, quoting Lord Halsbury reiterated; "Discretion means, when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion:............; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confer himself" (AIR 2001 SC 24 at page 33). Thus while exercising discretion, action pursuant to it is in consonance to the ideals and aspirations, of the founding fathers of the Constitution, nay to the citizens of the country, that exercise satiates the constitutional requirement.

We interpret the articles of the Constitution. The endeavour is not complete nor can we find the other end of it. Limitless are the missing links glaring at us. There are oblique manifestations therein. Art.164(4) transposes an expectation that a Minister who is not a member of the House shall become so within six months or at least can be expected to be so. As on date Ms. Jayalalitha is disqualified and may continue so unless happenings turn otherwise. Is there any legitimate expectation that the disqualifications shall whittle away before six months? Can the invitation to form the Government be extended to any on the strength of that expectation? Will it be legal? In the context, it has already come on record that the AIADMK legislature party has made it known that they are not prepared to consider a second name as their leader for the time to come. A subtle choice for them on the symmetry of our legal structure was to wait till the termination of the cases.

In Kerala, Shri. R. Balakrishna Pillai, a member of the dissolved assembly, also convicted for corruption charges during the period he was a member, filed his nomination to contest the assembly election. Protection under S.8(4) was extended to him. His nomination was accepted and he was declared the returned candidate. United Democratic Front, of which Kerala Congress (B) is a constituent, acquired absolute majority. Leader of the UDF was invited to form the Government. Being the Legislature Party leader of his party, Shri. Pillai was the unprofaned choice. But as we understand the Governor of Kerala revealed his reservations against the induction of Shri. Pillai in the Ministry and unrelentingly the UDF leader heeded to the advice of the Governor. It cannot be ignored that Constitution does not prohibit the appointment of Shri. Pillai as a Minister. There cannot be another opinion that he was left out for upholding democratic values and political ethos.

Charges against Ms. Jayalalitha in the pending cases are unmasked to one and all. What shall be its fate she being at the helm of administration of the State? Will she be naive and have an unabashed mind against the cases. No one need to assert a dissent but dispassionately acknowledge that Ms. Jayalalitha is an uncanny political strategist. From the filing of the nominations culminating to the ceremony of taking oaths of office and secrecy that has been vociferously before us. She has been mightily successful to lead her followers to ride the crest of the wave to a remarkable victory. It is argued that the outcome of the election is the will and verdict of the people. But the Constitution and other laws are not to put to the shelf for the time on the political will and verdict of the people. Indeed law is for the society. It should also change on the need of the society. Social needs confined for long conforming to the custom become confirmed law. But there will be no buyers to the proposition quid pro quo Constitution for the facts in issue.

We have experiences seeing succeeding Governments give primacy to search of the skeletons of past regime to settle political scores resorting to vindictive measures to rout political opponents. Statute also empower Governments to withdraw from prosecutions. Brandishly it is used in cases undermane to the interests of those in power to avoid cascading political effects. S.321 of Code of Criminal Procedure 1974 empowers every Public Prosecutor to apply for withdrawal from prosecution with the consent of the court. Though function under this section is discretionary, misuse of this section is rampant. If Tamil Nadu Government decides to withdraw all cases pending against its Chief Minister holding high the 'People's will and verdict', what shall be the repurcussions? It is not disheartening that this executive function of the Government cannot be questioned (AIR 2001 SC 116). Opinions may differ but misuse of S.321 Cr. P.C. will be an aggression on the independence of judiciary which has to be preserved. However, any such action can be tested pitting against the touchstone of Art.164(3) under which the oath of office and secrecy are taken. The maxim 'Nemo debit esse judix inpropria causa' - No man shall be judge of his own cause - is relevant here.

This is only a loud thinking as a possible turn out of the events for the ensuing time. The fear is how sovereign the Constitution we gave unto us more than half a century ago.

Choosing God's Middleman

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

A Judge is considered to be God's middleman. The judicature is the place where justice is, just as the bank is the only sure place where the money is. Therefore, we should have vetted Judges, judges possessing unitive consciousness, like seeing the thread in a cloth, clay in the pot, or water in the waves. Let me be painfully blunt. A candidate for appointment to the post of a Judge should be scanned from occiput to Achilles' heel. His entire life upto the moment of consideration of him for the post, should be carefully examined and studied. Mark, it is not enough that one should be great; but should be good too. There are Judges who represent a picture of a sense of superiority. Lawyers are made to take home insults by the court. A court is not an alms-house; nor a lawyer an alms-man. There is a pathetic dull in decision-making. Think of music without melody; learning without humility; speech without truth; knowledge without wisdom. In those situations, arrogance would become a creed, egoistic boast fashionable; sense of self respect will decline. A Judge enjoys an overwhelming conventional superiority over the lawyers. Therefore the necessity for choosing the right persons to the scat, remembering that Judges symbolise the institutional dignity of the Judiciary. Therefore. put an end to the constituency-wise selection of Judges.

When we speak of Higher Judiciary, meaning the High Courts and the Supreme Court, and consider the questions and aspects relating to the qualifications, mode and manner of appointment of Judges of the High Courts and the Supreme Court, we should not forget the fact that Judges of the Subordinate Courts are also constitutional appointees, meaning that the appointments of District Judges and of persons other than District Judges to the Judicial Service of the State are provided for in the Constitution itself - See Arts.233 to 237 of the Constitution. Moreover, under Art.217 of the Constitution, dealing with appointment and conditions of the office of a Judge of a High Court, a person who had held a judicial office in the territory of India for at least ten years, is also qualified for appointment as a Judge of the High Court. This has reference to judicial officers of the Subordinate Judiciary. Likewise, under Art.124 of the Constitution of India, a Judge of a High Court is qualified for appointment as a Judge of the Supreme Court. Therefore while considering questions relating to qualifications, manner and method of appointments to the High Courts and the Supreme Court, we should start from the grass-root level.

I am not going beyond the obvious when I venture the view that the entire judicial system needs overhauling from the grass-root level; and let me declare in general terms that the whole judicial system calls for a complete overhaul in this cyberspace era. Abolish caste-based or colour based selection of Judges. The Constitution of India does not prescribe the hue or the sex of a person to be selected as a Judge.

The judiciary is not intended for the Judges alone. Nor is it intended for the lawyers alone; or for the Judges and lawyers together only. The judiciary functions for the people of India, not for the litigants alone. As Justice Krishna Iyer has said: "The judiciary derives its power under the Constitution, not over it". The justicing system is too serious a business; and it is better not to leave it to the Judges and lawyers alone. Justice Pandian, in his Lordship's judgment in the Supreme Court Advocates-on-Record Association case ((1993) 4 SCC 441) posed questions only on Solomon's sovereignty; not on accountability. I say, the Indian Solomon is accountable to the people of India.

I should think, the qualifications for appointment of Judges of the High Courts and the Supreme Court need drastic changes; the procedure for appointment, as contained in Arts.124 and 217 of the Constitution of India, needs change; a well constituted Judicial Commission is needed; there should be transparency in the matter of consideration of candidates for appointment;-and the present procedure for removal of Judges needs change.

I am of the firm view that a person, on recruitment as a Judge of the High Court, should be subjected to training for a good period, of about six months at least. It is trite that one who declares that he knows everything, knows nothing; and only the one who says he knows nothing, knows something. Training on behavioural aspects should be especially imparted to him. He has to undergo, so-to-say, a drip system on the aspect of behaviour, so that the instructions will touch the root. That is necessary for maintaining the dignity of the institution. In a court of law; restraint should not be at a discount. Lessons in correct judicial prose should also be taught. The implicit message in short is, let us have judges, who know their lexicon.

I should also think that a minimum age for recruitment as a High Court Judge should be fixed. The age limit could be between 58 and 70. So that after retirement a Judge need not go in search of other assignments or legal practice. That would enable him to call himself Mr. Justice so-and-so even after retirement. Here I would like to pose the question as to whether an Indian Judge of a High Court or the Supreme Court could be called Mr. Justice so-and-so after retirement, as is the case in England. The Bar Council is to consider this aspect of the matter; especially, the Bar Council of India has to consider this aspect of the matter, because several retired Judges practicing in the Supreme Court as lawyers, are called Mr. Justice so-and-so Advocate. No Judge of the High Court or Court of Appeal in England practices law or takes up any other assignment after retirement. In fact, there even a retired Judge, continues to be a Judge. That is why they are called Mr. Justice so-and-so, even after retirement.

The bar being the feeder of the Judiciary, also needs upgradation, especially when solo law practice is the order of the day; and nobody works as a junior under a senior for the tariff period. If this be the state of affairs, we should be prepared to face a judicial earthquake.

Everybody concerned with the judicial system should endeavour to uphold justice; justice never dies; and that is why the Lord of Death is called the Lord of Justice also.