A Comment on Kerala Magistrates' Association V. State of Kerala1

[2001 (L)KLT 920 (Sc)]

Generally speaking, our Courts are bound by precedents. Indeed, the Supreme Court of India if the need arises, can revise the precedents. The doctrine of precedent requires the Supreme Court also to follow the precedents, laid down by its Division Benches if another Division Bench constituted by more Judges does not revise them. The position can be stated thus:-

A statement of law by a Division Bench of the Supreme Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision is binding, it is not required that it should be a decision rendered by the Full Court or a Constitution Bench of the Court. Since some conflicts on this issue arose in certain cases, it is suggested by the Supreme Court that for the purpose of imparting certainty and endorsing due authority, decisions of the Supreme Court in the future should be rendered by Division Benches of at least three Judges unless, for compelling reasons, that is not conveniently possible.2

Throughout the common law world the Courts maintain their relevance and accountability to the system by way of reasoning referring to the respective submissions and giving reasons for their acceptance of either submissions. Both these features are not reflected in the Supreme Court's decision in Kerala Magistrates' (Judicial Association) v. State of Kerala.3 Instead it refers to some discussions and consultations among the State of Kerala, High Court of Kerala and the petitioner Association.

The Counsel for the petitioner - Association advanced a three -pronged argument as follows:

1. There was absolutely no justification for not considering the seniority in the integrated cadre on the basis of their regular length of service, which usually forms the basis when integration takes place and in the absence of any special reason indicated by the rule-making authority, the basis has to be held to be arbitrary and irrational.

2. When the rule - making authority decided to have an integration of the two wings, it was expected of them to take into account the total number of posts in the entry grade of both the wings, the promotional avenues available to the incumbents of each wing and the promotional avenue which would be open in the integrated cadre and all other relevant facts and that not having been done, the fixation of quota under the Rule cannot, but be held to be invalid.

3. Provision for promotion in a cadre increases the efficiency of the public service while stagnation reduces the efficiency and makes the service ineffective and therefore, promotion is considered to be a normal incidence of service and, if this test is applied to the integrated cadre constituted under the Rules of 1991, it would appear that the incumbents engrafted from the criminal side have practically no prospect of promotion, as compared to the counterparts.

The Court responded to these submissions saying that the present formula was arrived at jointly by the Full Court in Kerala by referring to the meetings, discussions and consultations of the Government of Kerala and the High Court with different organisations of the Judicial Officers. The Court noted that the present ratio of quota is beneficial to the petitioner in comparison to officers from the civil side. The Supreme Court observed:

"The Court took notice of the fact that on the date of integrating 42 Magistrates, second class will be absorbed in the category of Munsiff Magistrates and all of them will be duly benefited in their scale of pay. The Court also considered that in view of the number of posts available, while Munsiff could expect promotion to 49 posts of Subordinate Judge, the Judicial Magistrate could expect promotion only to 18 posts of C.J.M's, as it existed. But by reason of integration, the chances of promotion of the Magistrates will be much more enhanced, compared to the chances of promotion to the Munsiff. The Court also considered the normal rate of promotion and found that for Munsiff, the rate being 1 - 25, for a Magistrate rate was only 0-30 and on account of integration, the ratio could come to 0-84, which indicates that overall chances of promotion to the Munsiff would get reduced from 1-25 to 0-84, whereas the chances of promotion of the Magistrate get increased from 0-30 to 0-84. The High Court therefore suggested that the ratio of 3:1 should be fixed both in the integrated cadre of the subordinate Judges and C.J.M's for promotion to the post of District Judge as well as in the cadre of Munsiff and Magistrate First Class for the promotion to the post of subordinate Judges. The High Court also was of the opinion that the effect of integration will be that while Munsiff would lose chances of promotion, the Magistrates will improve the chances of promotion, although some senior Magistrates individually will sustain some loss. But such loss is the usual consequence of any integration process. Notwithstanding the aforesaid recommendations of the High Court, the State Government, on receipt of representation from the Magistrates' Association, made further correspondence with the High Court and suggested that the ratio for promotion from the Munsiff and Magistrates to the Subordinate Judges should be fixed at 5:2. The High Court initially had some reservations but ultimately accepted the same and communicated its acceptance to the Government whereafter the Rules were promulgated and R.3(4) of the Rules embodies the aforesaid principles".4

This judgment thus embodies a recapitulation of legislative and administrative ancestry of the Rule rather than a decision on the question whether the Rule violates, the petitioners' Fundamental Rights under Art.14.

In this context it may be worthwhile to recall that the Supreme Court in S.I. Rooplal v. Governor5 has categorically ruled that the seniority of a person in a Department to which he was sent on deputation would be the seniority he had in his parent Department. That was a case where a S.I. of Border Security Force was allowed to be absorbed in the Delhi Police with the seniority he had in the Border Security Force.

Though an analogy could be developed and a precedent created on its strong theoritical grounds, the court dismissed the argument observing thus:-

"This case will be of no assistance to the case in hand where the integration of the two wings of the judicial service has been made under a set of Rules framed by the Governor in exercise of powers conferred under Art. 234 and 235 of the Constitution, after due consultation with the State Public Service Commission and the High Court and the High Court itself has elaborately discussed this question before taking a final decision".5

This case could have been usefully applied as it also involved transfer of personnel from a post to a similar post. The demands of the work are also the same. The only difference could have been the expectation of officials for certain promotional posts.

Since the Court did not follow the policy of pegging this judgment on any jurisprudential principle it had to admit that the decision of the Kerala High Court and the Kerala Government as represented in the Rule may diminish the promotional avenues of officers coming from the civil side. In fact this kind of reasoning may have the tendency of tempting people of frequent litigation. What if the Association of Munsiffs petitions the Court on the ground that admittedly the present Rule may violate Art.14. The Supreme Court may again have to harp on the same note of compromise or reconciliation of the Rules rather than any sound principle as spelt out in Rooplal which was a decision of a 3 member-Bench and therefore a precedent necessarily to be followed by the 2 member-Bench of the decision under comment i f law of precedent meant anything.

Seniority is a hard earned qualification and a senior person should not be put to jeopardy in the name of deputation or integration. In fact it is time for our High Courts to examine the possibility of considering meritorious subordinate judicial officers for appointment to the post of District Judges when they consider Advocates with 7 years' experience as eligible for such appointment. Whether it is independent practice or judicial experience in lower courts, it is experience worthy of consideration for making appointment to senior positions. A review of the appointment procedure is surely the desideratum.

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Foot Note:

1. Dr. K.N. Chandrasekharan Pillai, Professor & Dean, School of Legal Studies, CUSAT, Cochin - 22.

2. See observations in Union of India v. Raghubir Singh AIR 1989 SC 1933.

3. 2001(1)KLT 920 (SC).

4. Ibid 926 ,927.

5. A.I.R. 2000 SC 594

6. Supra n.2 at 925.

Portriat of a Profession

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

For some time now, I have been thinking long and hard about the Kerala High Court Bar; and what flummoxed me is the realisation that the Bar is not unwilling to wear the logo of another. We thus see a fractured portrait of our profession. Many lawyers seem to have forgotten the standards of professional conduct, especially the great principle that an advocate shall, at all times, comport himself in a manner befitting his status as an officer of court and a gentleman. The cardinal rule of the Bar Council of India is:

"An advocate shall, during the presentation of his case and while otherwise acting before a court, conduct himself with dignity and self-respect. He shall not be servile and whenever there is proper ground for serious complaint against a judicial officer, it shall be his right and duty to submit his grievance to proper authorities."

If this rule is remembered and followed by every member of our Association, we could retrieve our status and dignity. I would exhort my learned friends, especially the cub lawyers, to resist any affront to their status and dignity.

If anybody chooses to badmouth a lawyer or his profession, he should resist it with all his might. I venture the following indelible advice. Resist any inquisitorial hectoring by anybody. Do not allow anybody to wag his finger at you. Rule your territory that is the legal profession. Do not allow anybody to use his illegitimate power against you. Be a respectable lawyer and little else besides. Do not expect any grace mark or moderation mark for advocacy. You should always make a bold assertion of professional status and rejoice at the accretion of muscle to the profession.

Let it be virtuous to be obstinate about the above.

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.

Towering Trg

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

"I am tired. Enough is enough, I feel like retiring now. I would love to retire in style. A silent resignation is creeping in". This was the wailing of that born winner, a man of forceful manner, a sterling lawyer, a lawyer of awesome reputation, the unattainable 'Meru' among lawyers, Senior Advocate Sri. T.R. Govinda Wariyar, (popularly known by the initialism 'TRG' in the legal circle), when he spoke to me a few months ago. Could I believe it, coming as it was from TRG, the living legend, the most complete lawyer package, who still has the ammunition; whom nobody could dismantle. The venturesome lawyer is his own boss, who never used to sit back in peace; who is a doer and a thinker; whose mind's antennae were always up. The most instantly recognizable lawyer in Kerala, high up in the legal profession, TRG is the first choice lawyer of the litigants; as a straight - talking lawyer; a cut above the rest; who excelled in all the shades of glory; a lawyer who walked into the profession, not crawled into it. TRG is the Great Survivor among lawyers; he has been lawyer for about fifty years, doing the same job with the same unblinking dedication to professional duty, despite changing times and attitudes. You can take TRG out of the profession, but you cannot take the profession out of TRG. I remember his victories, passions and sorrows.

A lawyer with grit, guts and glory, an advocate of renown, TRG has the ability to keep friends across professional lines, with his cool, charming, modest, warm and sociable manners.

TRG firmly believes that a lawyer's fundamental right is to argue a case forcefully and that winning a case is the high point in advocacy. A lawyer with a tidy weight, TRG runs in the race for a win. He never runs out. He never is a frothing pretender in the profession. He always maintains the body-mind-intellect personality. His arguments generated much more light rather than plenty of heat. He is one of the most precious lawyers.

In court we are explosive rivals, but in private we had developed a mutual affection, though there are almost as many differences between us as there are similarities. We studied law together.

Frank, fearless and committed, TRG is, as a lawyer. There are many landmarks to his credit. He is a lawyer who wakes up in time; a lawyer powered by the profession; a lawyer who worshipped the profession. He argues every case in real earnest. Each case fitted him like a glove. His mode of argument is substance backed up with style. He is an impregnable adversary; a giant-killer lawyer. Any win against TRG would only be surviving a scare, after getting flummoxed. He never bats with half-the-bat. He does not put his leg before the cause. He is his client's dream and his adversary's nightmare. He would make his opponents ridiculous, with his measured aggression in arguments. He is a different senior lawyer. There may be other able senior lawyers. But 'no two tigers have the same stripe pattern'.

Humility is a strong part of TRG's character. At a personal level TRG is a very kind-hearted and considerate person.

TRG is a prudential lawyer, taking care of the litigants' investment in the litigation, as safe as a bank. He never studied cases and argued them for his health. For TRG, Court is where the heart is. He is an all-in-one lawyer. His office was chock-a-block with clients.

TRG is never a lawyer making endorsements to Judges. He believed that a lawyer is not a whipping boy of the judiciary. He is unwilling to wear the logo of a Judge or of another lawyer. You.may love him or hate him as a lawyer, but you cannot ignore him. Hear TRG for a forceful discussion, back and forth between the Bench and the Bar. He never makes empty noises in court. He argues with spirit and fire, even before a 'zero tolerance' Judge. He is articulate, passionate and irrepressible, when he starts to argue. He knew every nuance of the law just like the back of his hand. He never gives sops to anybody in his professional career. In a check-list of performance of all the lawyers, TE G's name figures at the very top. This is not a concession, but his entitlement.

TRG got noticed soon in the profession- And he has celebrated Victory No. 'N'. Leadership of the Bar is the by-product of his superior advocacy. He is a symbol of the past tradition of the profession. I consider him as the designated representative of Senior Advocates. TRG is the Kerala lawyer of the 21st century. His commitment to the profession is hard to match. He had no time to rest 'under the Greenwood Tree'.

TRG never adopted a lavish life-style, though he could afford one. He is plain sans frills, unlike lawyers with Hollywood looks.

In the profession, TRG seemed to be on pins and needles all the time. His arguments are so full of life, so full of law, so full of possibilities. In him, we see the triumph of advocacy. He possesses the ABCD of a true lawyer:

Accessibility;

Brilliance;

Communicative Skill;and

Devotion to Duty.

TRG created a new grammar of advocacy.

The profile of this great lawyer will never be written about in any history book; but it is on the hard work of such lawyers the legal profession progresses.

Shariat and Child Marriage

(By S.A. Karim, Advocate, Vanchiyoor, Thiruvananthapuram)

The Muslim Personal Law Board has opined that the Child Marriage Restraint Act, 1929, hereafter refers the Act, is against the shariat and therefore, it is not binding to Muslims. This gave a re-birth to a practically dead Act. As per the Act, the minimum marriageable age of a girl is the completion of 18th year and a boy 21 years. S. 2(a) of the Act reads -

Child means a person who, if a male, has not completed twenty one years of age and, if a female, has not completed eighteen years of age.

The statement of objects and reasons of the Act, among other things, says this minimum marriageable age has been fixed to check the population growth, to enable a responsible parenthood, to delay the fertility period and to protect the health of the mother as well as the child. In our country the tendency is delayed marriage.

Mulla's Principles of Mohammedan Law is one of the Authorities on Muslim Personal Law, the shariat. S. 251 speaks about the capacity of marriage. It reads -

1. Every Mohammedan of sound mind, who has attained puberty, may enter into contract of marriage.

2. Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians (Ss. 270-275).

3. A marriage of a Mohammedan who is of sound mind and attained puberty, is void, if it is brought out without his consent.

Explanation - Puberty is presumed, in the absence of evidence, on completion of the age of fifteen years.

Dr. Tahir Mohammed is another authority on shariat. In his book Muslim Law of India, he agrees puberty and sound mind decide the capacity of marriage similar to that of Mulla. In the 1980 edition page 48 of the book, he narrates the following regarding puberty. It reads -

i. Puberty is a physical phenomenon to be ascertained by evidence.

ii. In the absence of evidence to the contrary, it is generally presumed that a person who has completed the fifteenth year of age has attained puberty.

iii. The possibility of attaining puberty by a boy as well as by a girl before the age of fifteen years, however, recognised by law.

iv. The earliest age of puberty for a boy is, generally, twelve years.

v. The earliest possible age of puberty for a girl is, generally, nine years.

The dictionary meaning of puberty is beginning of sexual maturing, a stage at which a person's sexual organs are maturing and he or she becomes capable of having children. It indicates puberty is between 9 and 15 years of age. If shariat is followed, the Act is violated.

Shariat is considered the revelations of Prophet Mohammed and his disciples. Like man is the product of circumstance, the Prophet was the product of circumstance existed in Arabia fourteen centuries back. His revelations were made with good intention and for the welfare of the society at large. What was good in Arabia need not be the same to the rest of the globe. Such revelations can only be a guide line to the future generations. In our country an Act has been passed by the elected representatives of the people after considering the various aspects on the timing of marriage. It is based on reality and necessity. The intention of the Act in discussion is to prevent population explosion and to protect the health of the mother and the child. If this is true, the Act must prevail over the guide lines.