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.

Quo Vadis Mandamus

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

I am distressed, and have a sense of concern, over the present predicament of the much misunderstood, mismanaged and mishandled mandamus, one of the Constitutional remedies. Mandamus is now being treated as a stock in trade by the legal profession. Also, sad but quite true, the signboards on the legal profession are being ignored.

Mandamus was born in England with a Royal/prerogative status. India made a Constitutional adoption of the English-born with a Norman-French nomenclature. The Indianisation of the British Mandamus was fast indeed; and its present position, with accumulated defects, is dolorous, having been mauled, by clumsy handling and legal roughing.

Mandamus, to compel the performance of a royal will, gave place to the judicial writ of mandamus to compel the performance of a public duty; and this was evolved by the King's Bench early in the seventeenth century. An applicant seeking the remedy/writ of mandamus should have a specific legal right to the performance of a public duty; and he must have demanded performance and been met with a wrongful refusal.

Referring to the nature of mandamus in England, Corpus Juris Secundum explains: "Mandamus has been broadly defined as a writ issuing from a court of competent jurisdiction, directed to a person, officer, corporation, or inferior court commanding the performance of a particular duty which results from the official station of the one to whom it is directed or from operation of law, or as a writ commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station. It is a proceeding to compel someone to perform some duty which the law imposes on him, and the writ may prohibit the doing of a thing, as well as command it to be done".

Hail Lord Denning for the clear exposition of the remedy of mandamus in the famous Padfield case as also the Blackburn cases. Mandamus is applied for, to see that the law is enforced, declared the law Lord. The Blackburn case attracted the attention of a cartoonist, who depicted Lord Denning as a stricken sandwich-man. Let everyone refer to The Discipline of the Law, to perceive the disciplined mandamus.

Mandamus is sought to enforce statutory duties of public authorities. 'Hear and determine according to law', is the mandate, the law being indicated, by the Court. More generally, act as prescribed by the provisions of the law, is the direction.

Sir William Wade says: "Obligatory duties must be distinguished from discretionary powers. With the latter mandamus has nothing to do; it will not, for example, issue to compel a minister to promote legislation".

The Court of Appeal in the Equal Opportunities Commission Case held: "Domestic legislation remains a matter for Parliament, not for the courts.... It goes without saying that.................the last word would lie with the Parliament........". It is wrong for the courts to direct introduction of legislation, observed Hirst L.J.

The Supreme Court of India has held that Court cannot direct/compel Government to enact law or to make subordinate legislation; or refrain from doing so. (Mallikarjuna Rao, Asif Hameed, and several other decisions.)

But it amazes me no end to see now-a-days High Courts diffusing the remedy of mandamus. The writ of mandamus is issued in reticent vocabulary:

"The petitioner has filed Ext. PI before the first respondent. Therefore the first respondent is directed to consider and dispose of Ext. PI as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment", is the refrain in many a case. I refrain from repeating the content of the extraordinary remedy of (real) mandamus. which seems to be in hiding; and its end is nigh. There are cases in which the Government is directed to introduce legislation. In certain cases, petitioners are directed to make representations to public authorities, and such authorities are directed to consider the representations as and when made, without any regard to the legal obligations of such authorities. For a practitioner of law, a prayer for a writ of mandamus has become handy and hand-barrow for income without ado. But think of the predicament of public authorities, in terms of time and expenses, in complying with the directions for no purpose whatsoever

If this be the state of affairs, the law relating to the remedy/writ of mandamus will have to be re-written, under the caption 'Writhe the Mandatum'. Justitia forbid.

Cry Noble Profession

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

It is with acute anguish that I write this article, because I felt like hearing a disembodied voice telling me that all is not well with the legal profession. That sounded to be the voice of the Mahatma.

Compiling and editing "The Law and the Lawyers" by Mahatma Gandhi, Sri Sunit B. Kher, in his Introduction to the book, said: "The vocation of the lawyer is an honourable vocation requiring the highest standards of rectitude, integrity and uprightness, and its practice is in no way inconsistent with the pursuit of truth". This Sri. Kher said on the 2nd Day of October, 1962 (Gandhi Jayanthi Day). Know thou that Gandhiji practiced as a lawyer for over twenty years. It was at that time, says Sri. Kher, he acquired a true knowledge of legal practice and learnt the things that a junior barrister learns in a senior barrister's chamber and also gained confidence that he would not after all fail as a lawyer. The Mahatma, continued Sunit B. Kher, maintained the highest traditions of the profession and did not swerve by a hair's breadth from path of rectitude and integrity.... He never sold the truth to serve the interests of his clients.......He never forgot that he had a prior and perpetual retainer on behalf of truth and justice.

The Mahatma had said: "In my heart of hearts I always wished that I should win only if my client's case was right". It is said that during his professional work it was Gandhiji's habit never to conceal his ignorance from his clients or his colleagues; and wherever he felt himself at sea, he would advice his client to consult some other counsel, or to let him seek the assistance of a senior counsel. According to the American author James Cavanagh, Gandhi had kept the virtues of a lawyer, and only deepened them. Gandhiji proved that the indictment against the legal profession by Dean Swift, in Gulliver's Travels, was wrong. Sunit. B. Kher may again be quoted: "At a time when the legal and professional standards among both Judges and lawyers have fallen woefully, it behoves the legal fraternity to bestir itself and infuse a moral tone into the profession by pleading itself with renewed vigor and deep devotion to the ideals and the precepts of Gandhiji and presenting him to the profession as a model truly worthy of the closest emulation." The standards have woefully worsened now, and there is nobody to emulate Gandhiji. Very few lawyers even know that Gandhiji practised the profession of law; and precious few knows that the Mahatma was a practicing lawyer for over two decades. These are days when amnesty is extended for incompetency. The legal profession has become an endangered species.

The legal profession is now enjoying the 'silly' season. Everybody concerned with the system seems to hide behind his small achievement. This said, I cannot but point out that the profession is now under siege from novices. Every lawyer, at the entry into the profession itself, hopes to win a bundle. This sends out a perilous signal that the profession is not on the right path. The one who knows too little cares not for the one who knows much more.

Judicial calmness is conspicuously absent. Arguments/submissions are scaled down, forgetting that the Judge does not carry all the aces, though; and that by having been appointed Judge, he has not come a full circle. A struggle to save the profession's soul is imperative. Touting has started to haemorrhage the profession. There seems to be no continuity with the past. Nobody thinks of this day that age. For the better or the worse, the profession is depending upon information technology, not on intelligent initiative. For an advocate, reading and arguing are not alternatives. Sadly, there is no cause for total comfort. Don't you think I am a prophet of gloom or doom. I am here with a roster of the profession's woes and miseries. Overall, though, both the Bench and the Bar should try in tandem to save the judicature by guarding the Achilles' heel. In this profession, there should never be an attempt to separate the men from the boys as is done in sports, for the presence of seniors is a strong force.

Advocates are share-holders of the judicature. Therefore it surely bears emphasis that it is eminently reasonable that the Bench and the Bar should try to overcome the cumulative professional embarrassment. Lawyers should have a fixed-deposit in the profession. They should not fritter away a 'blank cheque' and return with a huge 'overdraft'.

It is important for today's Judges to know the history of the judiciary, as they are part of the history, not bigger than that. Respect is an aspect which is reciprocal. It cannot be commanded by the gate through which you enter, or the gait with which you stride. The Bar's affection is precious judicial asset for a Judge. A Judge is only the second incarnation of a lawyer with a conferred Constitutional status for a limited period, which brings honour, not immunity. Judges and lawyers should remain an undivided family, as Judges are selected from the Bar stables. Nobody is invariably infallible. "The Supreme Court is final not because it is infallible, but it is infallible because it is final", said the great jurist Sri. V.R. Krishna Iyer. The High Court is neither final nor infallible. It is good for both the Bar and the Bench to remember this; and both should avoid personalised functioning. And both should not indulge in disproportionate response and lofty claims.

I have only heavily quoted from my career and experiences. It is time enough to re-invent the legal profession. God save the profession. "Mahatma Gandhi Ki Jai".

Judiciary has Shown the Way to Labour Reforms

Contract Labour system must be regularised

(By Advocate H.L. Kumar)

The Judgment relating to prospective engagement of contract labour by PSUs is shot in the arms for the Union Government which is intent on the labour market reforms but has not been able to take legislative measures.

The recent judgment of the Constitution Bench of the Supreme Court has come as a whiff of fresh air at a time when liberalisation has become a buzzword. There is a core question with regard to amendment of labour laws, whether it will be conducive for the survival of the industry and generating employment or not. Unfortunately the issue has been obfuscated with shibboleths'of vested interests and it is still on the hold.

Labour laws which allow easy 'hire and fire' may ex facie seem to be anti-labour. But on a careful analysis it would reveal that chey are, otherwise highly pro-labour more so in a developing country like India with mass availability of labour. When the employer would be able to increase or reduce the size of workforce depending upon the requirement, it would create more jobs in direction to utilize India's inherent advantage - abundance of labour which comes cheaper than in more developed economics.

It is a hard fact that after the Air India judgment of Supreme Court may Public Sector Undertakings got enmeshed and emaciated resulting into their unnatural death but the judgment will provide much needed oxygen for their survival as they will be free to employ workers through contractors for menial jobs like sweeping, dusting and watching etc.

The Public Sector Undertakings were severely hit by this judgment and their efforts for survival and restructuring were stifled in rationalising the high level labour costs under aggressive competitive environments which necessitated to control the cost. Thousands of contract workers became entitled for their absorption as regular employees. Even the sweepers working through the contractors in the parking areas of the airports were also held entitled to be absorbed. The Air India has absorbed over 2000 contract workers over the past five years whereas Airports Authority of India has been facing absorption of over 4000 contract workers. Also, for absorbing over 11000 contract labour, the extra burden on SAIL before wage revision was close to Rs.80 crores. Many over Public Sector Undertakings including Indian Oil Corporation, FCI and BHEL have been facing this problem of absorption of contract labour. The other blow came upon such undertakings in the case of Steel Authority of India Ltd. and Ors. etc., v. State of West Bengal and Ors. decided on 3rd July, 1998 by Division Bench of Calcutta High Court comprising of Chief Justice P.S. Mishra and Justice Barm Ghosh in directing absorption of around 350 contract labour in SAIL's Paharpur stockyard.

                       MONETARY BENEFITS TO PSU'S

                                             Contract labour     Annual cost of regularisation

                                                                              (Rs. crore)

                           FCI                130,000                                           303

                           IOC                7,571                                               137

                           SAIL              11,144                                             98

                           BHEL            7,500                                               75

                           ONGC           6,769                                               137

                           NTPC            7,923                                               35

                           HPCL            1,812                                               32

                           Total              172,719                                           817

                     Source :      Public Sector Units                   

Being aggrieved, the Steel Authority of India (SAIL) filed SLP in the Supreme Court, FCI too had followed SAIL after a similar direction by Bombay High Court for workers retention of 1.3 lakh contract labour. The ONGC, IFFC also followed the same. These SLP's were decided on 30th August, 2001 in Steel Authority of India Ltd. and Ors. etc. etc. v. National Union Water Front Workers and Ors. etc. etc., 2001 LLR961 (SC) by the Constitution Bench of the Supreme Court by reversing its own judgment in quashing the 1976 notification issued by the Central Government where it had also ruled on automatic absorption of contract labourers. Be it made clear that this judgment would be applicable in future and the contract labour already absorbed by Public Sector Undertakings would not be affected.

Although the Public Sector Undertakings will have no obligation to absorb contract labourers engaged for menial jobs, the Supreme Court has made it clear that the benefit will not be available to PSUs which make sham agreements with labour contractors. When there is a dispute over the status of the contract labourer, the Industrial Tribunal must check whether the agreement between the PSU and the contractor is a genuine one and not a "mere ruse/camouflage to evade compliance of various beneficent legislations so as to deprive the workers of the benefits."

"If the contract is found to be not genuine but a mere camouflage, the so-called contract labourer will have to be treated as an employee of the principal employer (PSU) who shall be directed to regularise the services of the contract labourer in the concerned establishment subject to conditions."

In the 130 - page judgments, the Apex court said that the notification did not satisfy the conditions laid down in the Contract Labour (Regulation & Abolition) Act.

Apart from sham contracts, there is another circumstance in which the contract labourers becomes direct employees of the PSU. This is when the contract labourer is employed in discharging the statutory duties of the PSU. One such example is running of canteens in their establishments. The Constitution Bench upheld the judgments which had ruled that contract labourers working in statutory canteens should be treated as workers of the PSUs.

Another important aspect decided by the present judgment is the identification of the "appropriate government" to deal with contract labour as PSUs are owned by the Central or State Governments and their establishments are spread over several states. The Court ruled that the appropriate government for the central undertakings would be those covered under S. 2(a) of the Industrial Disputes Act, 1947.

The judgment of the Apex Court is timely at this juncture because of rapid globalization and aggressive international competition as such the labour market flexibility is an integral part of competitiveness. That is the context in which contract workers have assumed importance.

The need for employment of contract labour is undisputed. The employment of contract labour is necessary for the following among other reasons:

(i) The employment of contract labour would relieve the principal employer of the need for direct supervision and control over the employees.

(ii) The contract labour will ensure speedy completion of the assigned work and according to the specifications.

(iii) The employment of contract labour would relieve the principal employer from the burden of looking after the non-essential things and concentrate only on his main activity/activities of manufacturing goods and/or rendering materials service.

(iv) The employment of contract labour would be comparatively cheaper labour, with lesser liability for supervision and control.

(v) There will be lesser industrial relations problems in respect of such contract labour.

(vi) The employment of contract labour is very common for the following jobs:

(a) construction, addition/modification to the structures of the factory or an establishment

(b) breakdown of machinery.

(c) Requiring periodical maintenance of machinery and equipment like the service contracts for maintenance of air conditioners, electrical gadgets and computers etc.

(vii) Other jobs which need to be carried out at regular intervals, like pesticide contract, jobs which can be done on weekly holidays/other holidays of the factory by the contract labour.

(viii) Project works requiring construction, erection work etc.

For the above reasons the principal employers are engaging contract labour on the premises of an undertaking for civil works, transport of the employees, watch and ward, gardening, house-keeping, maintenance of machines, electrical equipments etc.

All over the world, employment is recognised as a contract between employer and employee. Both the parties are supposed to honour it. That was the reason that even the Fifth Pay Commission headed by Justice Pandian has suggested that workers for certain jobs in the Government of India also should be engaged through contract system and that will unburden the Government to a great extent. However, some cases decided by the Supreme Court have sealed the fate of liberal interpretation of the law regarding contract labour.

Mr. Yashwant Sinha in his budget speech has proposed abolition of employment security by amending the Contract Labour (Regulation & Abolition) Act providing for outsourcing of certain activities so that the employers would be able to meet the fluctuations in demand of their products but such other amendment were vigorously opposed by the trade unions. The Union Government can succeed in the direction only if there is political consensus of the political parties. It is indeed a difficult task but most of the trade unions are adjunct of political parties. By this judgment the Supreme Court has stepped in setting the trend towards the directions of proposed amendment.

However, there has been no effective progress, perhaps such an amendment will have to be okayed by both the houses of Parliament. The ruling NDA coalition does not have the majority in Rajya Sabha and this is most likely to be cause of hindrance. Apart from this, labour is a subject of on the concurrent list of the Constitution of India. The Union Government will also have to consult the State Governments to secure their concurrence for the proposed amendment. The reference to Parliaments Standing Committee may also be imparative.

Unfortunately the authorities under the Contract Labour (Regulation & Abolition) Act are more occupied with the activities related to the abolition of the contract labour much less to its regulation. In many cases, it has been detrimental to the worker's interest. In fact, the Act may be named as Contract Labour Regulation Act and S. 10 of the Act providing for prohibition of employment of contract labour should be altogether deleted. The Government is also not insensitive. Even the Reserve Bank has called for measures to reform the labour legislation and now the judiciary has shown the way to labour reforms.

In these days of globalisation, for success the key word is competition. However, India is still carrying on the baggage of archaic labour laws which are impending productivity. The outdated labour laws have been adversely affecting the process of modernisation and competitive capability of the industry. The rigidities in labour legislation are biggest obstacles in successful implementation of structural adjustment programmes. An over staffed organisation, howsoever progressive it may be, will ultimately become sick and as a result the workers will be worst sufferer. More Industries would close if the Government does not take timely steps to amend labour laws providing flexibility in the labour market. By this judgments, the Supreme Court has stepped in setting the trend towards the direction of proposed amendments and reforms in labour laws.

Beware of Costs

(By T.P. Kelu Nambiar, Senior Advocate, Emakulam)

When the judicial conscience of a Division Bench, (comprising Mr. Justice Subramanian Poti and Mr. Justice V. Khalid, as their Lordships then were), felt rankled and festered by the absence of counsel on both sides in sixteen cases in a row in the cause list, considered to be 'old cases', the Bench dismissed all the cases for default. Petitions for resurrection were filed. Those petitions were allowed on condition of payment of Rs. 250/- each to the State. The condition imposed, namely payment of money to the non-party State, thereby propitiating the Civil Government with the cling of coins, appeared, to me, curious and novel. And it prompted me to promptly write an articulate article, entitled "Rankling Costs", (published in 1980 KLT Journal, at page 87). Therein, I ventured the view that the condition imposed was not justified, by analysing the aspect in the light of the definition and meaning of 'Costs' in certain statutes, Law Dictionaries, American Jurisprudence, Corpus Juris Secundum and decisions of the Kerala High Court. I pointed out that costs are expenses awarded by court to prevailing party and payable to a party and party basis, between ihe parties to the cause.

A more curious and novel situation has now emerged, where a Division Bench has recently imposed costs on both parties to the cause, the petitioner and the respondent, and ordered payment to the Legal Services Authority. (This is not a case of cross-costs against the contesting parties, but multiple costs in favour of a non-party.) The order did not slop there. It continued: "Liberty to the petitioner and the 4th respondent to proceed against the respective counsel for recovering the costs ordered by us either by way of civil suit or by moving the Consumer Disputes Redressal Forum". This is the last sentence (or nail?) in the judgment, rendered on the 23rd day of September, 2002, in O.P. No. 18338 of 2002, by the Division Bench, comprising Chief Justice Mr. B.N. Srikrishna and Mr. Justice R. Basant. (The judgment was by the learned Chief Justice.) Advocate Sri. C.C. Thomas, for the petitioner and Advocate Sri. T.M. Abdul Latheef, for the 4th respondent, would have cursed the day on which their clients had executed the vakalaths in their favour, and it needs to be checked whether it was on the 13th of a month, being Friday as well. I, for one, abhor Friday the 13th and the black cats.

Even further curious and novel is the penultimate paragraph in the order, dated 21st October, 2002, in Review Petition No. 724 of 2002, filed by the petitioner in the O.P., rendered by the Division Bench comprising Mr. Justice K.A. Abdul Gafoor and Mr. Justice R. Basant. (The judgment was by Mr. Justice Basant.) Dismissing the Review Petition, the Division Bench observed:

"Lastly it is submitted that the observation in the last line of the impugned judgment that the petitioner and the 4th respondent are at liberty to proceed against their respective counsel for recovering the costs ordered either by way of civil suit or by moving the Consumer Disputes Redressa) Forum deserves to be reviewed as the petitioner's counsel has no contumacious responsibility. The Division Bench had not made any final pronouncement on the liability of counsel. It was only observed that the parties shall have that liberty. Needless to say, if the said parties choose to stake claims against their counsel, such claims will have to be established in accordance with law. That observation also does not in these circumstances deserve to be reviewed".

27 born, I am pushing seventy-six successfully. I have been in this profession for about fifty years. I am unaware of any direction like the one issued in the O.P., or the clarification made in the R.P. I am constrained to confess, with the utmost respect though, that all the three learned Judges concerned with the disposal of the O.P. and the R.P. are surely not right; and the orders are verily illegal, and acutely embarrassing.

What is the reason for the observation that the clients are at liberty to recover costs ordered from their counsel. No reason is stated. Is it because the Division Bench thought that the counsel had ventured a wrong legal advice? How, and on what basis, did the court draw such a presumption, if any. The Court knows not the nature of the professional communication between the clients and the counsel. The court could not have enquired into the advice given by the counsel to their clients. The Court should have known the principles under S. 126 of the Indian Evidence Act and R. 17, Chapter II, of the Bar Council of India Rules, and other principles regarding the nature and content of professional communications. Did the court take into consideration a situation in which the client/clients would have insisted that, come what may, the petition/petitions should be filed. Did the Court cast attention to the principle that an advocate cannot refuse to take up an engagement from a client, except in certain circumstances. The exceptional circumstances are not present in this case.

The only circumstance in which a counsel could be mulcted with costs (payable to his client) is where he is found guilty of professional misconduct, where the conduct of the counsel is found irregular in form and improper in substance; and is grossly improper conduct in the discharge of his professional duty.

The present is not such a case; and there is no such finding even. Strange is the direction in the last sentence of the judgment in the O.P; and odd is the consolatory clarification in the penultimate paragraph of the order in the Review Petition. Exercise of patient wisdom is one of the principles of judicatio. It requires no smart legal erudition to recognise the flaw in the judgment and order relating to costs.

To enable the bar to perform its duties effectively, both the law of the land and the conventions of the court have surrounded it with immunities and privileges. The atmosphere of complete freedom from fear can be achieved only if the bar itself is fearless.

I do not for a moment pretend that my views are unexceptionable. Ishall never feel unhappy or uneasy if somebody finds flaw in my reasoning and comes forward with a contradiction.

All the same, 1 should alert the members of the legal profession to perceive the effect of the stinging rebuke in the judgment and the order, on the legal profession as a whole.

Tail peace: The Bar's affection is a precious judicial asset.