Whether Right of Minority Institutions to Appoint Head of the
Institution of their Choice under Article 30(1) of the
Constitution of India is Absolute?

(By S.Muhammad Haneef, Advocate, Supreme Court of India and High Court of Kerala)

1]. A recent decision of a Learned Single Judge of the Hon’ble High Court of Kerala in Xavier v. State of Keralareported in (2023 (2) KLT 615) held that, “simply because a senior teacher kept mum when management appointed his junior as Head Master, that appointment cannot be approved unless a written consent is obtained from the senior claimant renouncing his claim permanently in terms of the provisions contained in Kerala Education Rules, even though the Educational Institution is an institution having minority status and having protection under Article 30(1) of the Constitution of India”. The Learned Judge analyzed judgment dt.31.01.2017 inIvy C.da.Conceicao v. State of Goa & Ors. (2017 (1) KLT OnLine 2065 (SC) (2 Judge Bench decision of the Hon’ble Supreme Court) and quoted Para 14 of the judgment which reads “the above decision clearly show that autonomy of a minority institution does not dispense with the requirement to act fairly and in a transparent manner and the High Court in exercise of its power of judicial review is entitled to examine fairness of selection process.  Grievance of a citizen that he was treated unfairly cannot be ignored on the ground that a minority institution has autonomy or right of choice. Exercise of right of choice has to be fair, non-discriminatory and rational.” Therefore it was held that the right of minority institution has to be looked into in the light of the above principle laid down by the Apex Court.

2]. It is worthwhile to note that, a yet another 2 Judge Bench of the Hon’ble Supreme Court vide its judgment dt.11.07.2017 inCorporate Education Agency v. James Mathew reported in (2017 (3) KLT 713 (SC)) relying on  Catholic College v. T.Jose (2007 (1) KLT 22 (SC)) after referring to almost all leading cases of the Apex Court governing the field held as follows; “the emerging position is that once the management of a minority education institution makes a choice of a qualified person from the minority community to lead the institution either as the HM or Principal  the court cannot go into the merits of the choice or rationality or propriety of the process of choice in that regard the right under Article 30(1) is absolute. ”  In view of the conflicting decisions of co-ordinate Benches of the Apex Court,the former is relied on and followed by the Learned Single Judge in Xavier’s case (supra). Let us analyze the exact position of law based on binding precedents.

3]. The head of any institution plays an integral part in running the institution. This has been explained by the Hon’ble Supreme Court in Ammad v. Emjay High School
(1998 (2) KLT 828 (SC) in the following words:-

     “17. Selection and appointment of Headmaster in a school (or Principal of a college) are of prime importance in administration of that educational institution. Headmaster is the key post in the running of the school. He is the hub in which all the spokes of the school are set around whom they rotate to generate result. A school is personified through its headmaster and he is the focal point on which outsiders look at the school. A bad Headmaster can spoil the entire institution, an efficient and honest Headmaster, can improve it by leaps and bounds. The functional efficacy of a school very much depends upon the efficiency and dedication of its Headmaster. This pristine precept remains unchanged despite many changes taking place in the structural patterns of education over the years”.

Thus, in order to exercise the right conferred under Article 30(1) of the Constitution of India, minority institutions must be conferred with the right to overlook seniority to choose a person as its Headmaster or Principal, as the case may be, whom it believes would anchor the institution to heights. However, under the guise of exercising the rights conferred under Art.30(1) of the Constitution of India, can the management of the minority institution disregard qualified and suitable persons who also belong to the very same minority community or category overlooking seniority? Can such person seek judicial review of the same? In this backdrop, let us analyze these issues on the basis of law declared by the Apex Court as well as the Hon’ble High Court of Kerala.

4].  A Full Bench of the Hon’ble High Court of Kerala, in Kurian Lizy v. State of Kerala (2006 (4) KLT 264 (F.B.)) bestowed to adjudicate as to whether the right of the management of a religious minority educational institution to choose a qualified person as Headmaster of the School would come within the protective cover of Article 30(1) of the Constitution of India and if so, can it be regulated through a legislative act or an executive rule, considered the issue after referring to an 11 Judge bench decision of the Apex Court in T.M.A.Pai Foundation v. State of Karnataka (2003 (1) KLT OnLine 1104 (SC) and held as follows;

“We, thus, hold that the management of a minority educational institution would have freedom to appoint Headmaster or Principal. Rule 44(1) of the Rules of 1959 [Kerala Education Rules] would have no control over the powers conferred under Article 30(1) of the Constitution, although such institution has necessarily to evolve a rationale procedure for selection of the Headmaster or Principal, this context, we feel that some directions should be issued to the Managements of minority educational institutions, to evolve a procedure for selection to the post of Headmaster, in the light of the observations in the answer to question 5(c) in T.M.A.Pai Foundation’s case (supra) quoted above. We notice that in many cases senior teachers belonging to the minority community, which runs the institution are superseded without assigning any reason. Article 30(1) of the Constitution of India is an armour to protect the minority against the legislative and executive actions of the State, which is normally controlled by the majority. The said armour cannot be used as a weapon against other members of the same minority community. The protection under Article 30(1) is to the minority community and for the minority community. The Manager may supersede the members of other communities and also members of the minority community, who are found unsuitable for promotion to the post of Headmaster. But there may be teachers, who are, in every respect, qualified and suitable to head a minority educational institution. The management may select the best among them. The selection procedure should be fair, reasonable and transparent. The eligible members of the minority community may not have a feeling that they have been superseded without any valid grounds. So, all minority educational institutions, which propose to select the best person to the post of
Headmaster/Principal of a School or College, as the case may be, ignoring seniority in the feeder category or ignoring the available teachers, should frame and publish regulations or bye-laws, containing a transparent procedure, governing such selection. The publication can be made in the Notice Board of the educational institution concerned and a copy of it should be available in school/college library for reference. When superseding a senior qualified member of the minority community the reasons thereof should be clear from the records.”

5].  Consequent to the Full Bench judgment in Kurian Lizy (supra), the Hon’ble Supreme Court in Malankara Syrian Catholic College v. T.Jose (2007 (1) KLT 22 (SC)) was posed with a question to decide whether the provisions of Section 57(3) of the Kerala University Act apply to minority educational institutions and overrides the right of the management to make its own choice to make appointments to the post of Principal.The Hon’ble Apex Court answered the said question in the negative. The relevant portion of the judgment is as follows;

“27. It is thus clear that the freedom to choose the person to be appointed as Principal has always been recognised as a vital facet of the right to administer the educational institution. This has not been, in any way, diluted or altered by T.M.A.Pai. Having regard to the key role played by the Principal in the management and administration of the educational institution, there can be no doubt that the right to choose the Principal is an important part of the right of administration and even if the institution is aided, there can be no interference with the said right. The fact that the post of the Principal/Headmaster is also covered by State aid will make no difference.

28. The appellant contends that the protection extended by Article 30(1) cannot be used against a member of the teaching staff who belong to the same minority community. It is contended that a minority institution cannot ignore the rights of eligible lecturers belonging to the same community, senior to the person proposed to be selected, merely because the institution has the right to select a Principal of its choice. But this contention ignores the position that the right of the minority to select a Principal of its choice is with reference to the assessment of the person’s outlook and philosophy and ability to implement its objects. The management is entitled to appoint the person, who according to them is most suited to head the institution, provided he possesses the qualifications prescribed for the posts. The career advancement prospects of the teaching staff even those belonging to the same community, should have to yield to the right of the management under Article 30(1) to establish and administer educational institutions.

29. Section 57(3) of the Act provides that the post of Principal when filled by promotion is to be made on the basis of seniority-cum-fitness. Section 57(3) trammels the right of the management to take note of merit of the candidate or the outlook and philosophy of the candidate which will determine whether he is supportive of the objects of the institution. Such a provision clearly interferes with the right of the minority management to have a person of their choice as head of the institution and thus violates Article 30(1).
Section 57(3) of the Act cannot therefore apply to minority-run educational institutions even if they are aided.”

6]. Whether the Full Bench judgment of the Hon’ble High Court of Kerala in Kurian Lizy (supra) was impliedly overruled by the Hon’ble Apex Court in Malankara Syrian Catholic College (supra) or not, was the issue considered by yet another Full Bench of the Hon’ble High Court of Kerala in Belsi M. v. Corporate Management of Latin Catholic Schools, Diocese of Neyyattinkara (2010 (2) KLT 134 (F.B.). The Full Bench held that, the decision in Kurian Lizy has not been overruled in Malankara Syrian Catholic College (supra) and that the procedure prescribed in Kurian Lizy (supra) has to be followed while appointing the head of the institution overlooking seniority. The relevant portion of the judgment is as follows;

“…So, we find it difficult to accept the view canvassed by the counsel for the management that the direction to follow a fair procedure in the matter of selection of teachers for appointment to the post of Headmaster, will have the effect of diluting the right of the minorities to administer their institutions, guaranteed by Article 30(1) of the Constitution of India. The Manager is a statutory authority under the Kerala Education Act. He is conferred with certain powers, rights and duties. Every power conferred on a statutory authority has to be exercised fairly and reasonably. It is an implied limitation on the power of every statutory functionary. The Manager has the power to take disciplinary action against an erring teacher, but he cannot take action against a teacher for being red-haired. Likewise the Manager of a minority educational institution cannot say that he will select the Headmaster by holding a test of 100 metres race and person who comes out first in the said race will be appointed as Headmaster. If such a procedure is followed, the same will be condemned as ultra vires, being arbitrary and irrational. The power to administer does not include the power to maladminister. The power to make selection does not take in its fold the power to follow an unfair procedure in making the selection. In this context, we refer to the decision of the House of Lords in Roberts v. Hopwood 1925 AC 578.
It was a case where the Poplar Borough Council substantially increased the wages of its employees, on the ground that the Council was authorised to grant wages it thought fit. The auditors objected. The matter finally reached the House of Lords. The House of Lords held that the power to grant such wages the Borough Council thinks fit, is subject to the implied limitation that it can pay only reasonable wages, even though the word “reasonable” is not present in the enabling statute. What is stated by the House of Lords is a well-settled principle of Administrative Law. This decision has been referred to with approval by the Hon’ble Supreme Court in Delhi Science Forum v. Union of India (1996 (2) KLT SN 5 (C.No. 5).
So, the Full Court in Kurian Lizy (supra) only reminded the duty of a statutory functionary that while he overlooks the rights of seniors, he may follow a fair procedure. We have no doubt in our mind that the said direction can definitely stand with the decision in Malankara Syrian Catholic College (supra). The said decision does not impliedly overrule the decision in Kurian Lizy (supra). So, the observation of the Division Bench in Lijin (supra) that Kurian lizy (supra) cannot stand with Malankara Syrian Catholic College (supra) is not tenable.”

Therefore, the Manager while making appointments to the post of Head Master or Principal in minority institutions will have to follow a fair and transparent selection process and follow the procedure and the procedure prescribed in Kurian Lizy (supra) has to be followed.

7). The law being so, as mentioned in the 2^nd paragraph of  the article, a two Judge Bench of the Hon’ble Supreme Court in Corporate Educational Agency v. James Mathew (supra)held as follows;

“29. *** The emerging position is that, once the Management of a minority educational institution makes a conscious choice of a qualified person from the minority community to lead the institution, either as the Headmaster or Principal, the court cannot go into the merits of the choice or the rationality or propriety of the process of choice. In that regard, the right under Article 30(1) is absolute”.

Thus when the management makes a conscious choice, the rationality or propriety of the same cannot be questioned. However, going by the Judgment of the Hon’ble Supreme Court in Mrs.Ivy C.da.Conceicao v. State of Goa & Ors. (2017 (1) KLT OnLine 2065 (SC)  rendered by a co-ordinate Bench of the Supreme Court, which has been followed by the Learned Single of the Hon’ble High Court of Kerala in Xavier’s case (supra), even though Minority Institutions can choose the head of their institution without following seniority, the method of selection must be fair and transparent and the same can be interfered by Constitutional Court as well. The observations and the law declared by the Hon’ble Supreme Court are as follows:

“9.We have given our anxious consideration to the rival submissions. There is no dispute with the proposition laid down in the case of T.Jose (supra), that right to choose a principal is a part of a right of minority institution under Article 30(1) of the Constitution and the said right is not affected merely because aid is extended by the State to a minority institution. In T.Jose (supra), this Court held that Section 57(3) of the Kerala University Act, 1974 which required appointment of senior most lecturer as Principal did not apply to a minority institution. However, the decision of this Court cannot be read as laying down a principle that a minority institution could act arbitrarily or unfairly in dealing with the selection out of the eligible candidates. The minority institution may not be compelled to go by seniority alone but it must follow a criteria which is rational.                                                *****                                                                                                     
     14. The above decisions clearly show that autonomy of a minority institution does not dispense with the requirement to act fairly and in a transparent manner and the High Court in exercise of its power of judicial review is entitled to examine fairness of selection process.Grievance of a citizen that he was treated unfairly cannot be ignored on the ground that a minority institution has autonomy or right of choice. Exercise of right of choice has to be fair, non-discriminatory and rational.

15. We, thus, hold that while under the constitutional scheme, a “minority institution” is free to select and appoint a principal, without being bound by the principle of seniority alone, whether the appointment has been made fairly and reasonably and whether there is violation of right of an individual eligible candidate by the minority institution by not adopting fair procedure, is liable to be tested in exercise of power of judicial review under Article 226 of the Constitution. *****”

The Hon’ble Apex Court in Mrs.Ivy C.da.Conceicao(supra) followed the decision of the Constitutional Bench in T.M.A.Pai Foundation & Ors. v. State of Karnataka & Ors.
(2003 (1) KLT OnLine 1104 (SC) wherein it has been specifically held that (1) “a rational procedure for selection of teaching staff and for taking disciplinary action has to be evolved by the manager itself”, and that (2) “it would be appropriate if adverse decisions of the management are tested on grounds of breach of the principles of natural justice and fair play or any Regulation made in that respect”.

 Further, in Mrs.Ivy C.da.Conceicao (supra) the Hon’ble Apex Court has confirmed the Full Bench judgments of the Hon’ble High Court of Kerala in Belsi M. (supra) as well as in Kurian Lizy (supra) wherein it has been held that the autonomy under Article 30 was not in conflict with the requirement of fair procedure in selecting Head Master/Principal by minority managements in aided school/colleges.

8). Therefore, the above conspectus of cases reveals that, the law laid down in Corporate Educational Agency v. James Mathew (2017 (3) KLT 713 (SC)) can be understood and followed in the light of other judgments of Larger Benches of Apex Court, as well as coordinate benches including Mrs.Ivy C.da.Conceicao v. State of Goa & Ors. (2017 (1) KLT OnLine 2065 (SC), that the management of minority institutions can make conscious choice regarding appointment of Principle/Head Master of their institutions, however, the said conscious choice has to be made in a transparent way on the basis of the selection conducted as prescribed in Kurian Lizy’s case. Exercise of right of choice has to be fair, non-discriminatory rational and transparent. If a selection is conducted as prescribed in Kurian Lizy’s case and the management appoints qualified person of their choice, the said decision cannot be interfered with. However, if no selection is conducted, or the selection is not fair and transparent, the same is bad in law and can be interfered by the Hon’ble High Court in exercise of powers conferred under Article 226 of the Constitution of India.

2023 (6) KLT 96 -Babu v. State of Kerala - Resounds – Proper Amendment to Section 27 of Evidence Act is Warranted

(By Saji Koduvath, Advocate, Kottayam)

The Supreme Court of India, in Geejaganda Somaiah v. State of Karnataka
(2007 (2) KLT SN 83 (C.No.109) SC) emphatically cautioned, as regards the application of  Section 27 of the Indian Evidence Act, as under:

●     “As the Section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application.  The court must ensure the credibility of evidence by police; because, this provision is vulnerable to abuse.”

This portion of judgment was later quoted in –

●     1. Jafarudheen v. State of Kerala (2022(3) KLT SN 29 (C.No.19 SC =   2022 (2) KLT Online 1025 (SC).

●     2. Mukesh v. State of Delhi (Nirbhaya case) (2017 (2) KLT SN 81 (C No.114) SC).

●     3.Kusal Toppo  v. State of Jharkhand (2018 (3) KLT Online 3150 (SC).

Section 27 is a Malady

The Law Commission of India has described Section 27 as a ‘malady’. The fundamental view taken by the Law Commission was a total repealing of Section 27.  It further suggested that a modification, at least, is warranted to Section 27.  Law Commission in its Report No.152, dated 26.8.1994, On Custodial Crimes, had observed as follows:

● “If information spoken of in Section 27 is not forthcoming voluntarily, the police may have recourse to procuring the same by other means. This is not to say that the very existence of the Section (in the form in which it appears at present in the Act) creates an impression or an urge to resort to means not desirable or legitimate so that the Section is pressed into service in situations never intended by the Legislature.  We are convinced that the Section needs an amendment, if not repeal, in order to completely ward off the tendency mentioned above.”

K.Babu v. State of Kerala -A Well-Reasoned Judicial Edict

The Kerala High Court has recently made a well-reasoned and a pragmatic judicial pronouncement (K.Babu v. State of Kerala (2023 (6) KLT 96) specifically pointing out an improper application of Section 27 of the Evidence Act.   This judgment realizes us as to the ground-reality of misusing the well-intended Section 27, Evidence Act.  

Facts of the case

Gruesome murder of an elderly couple was taken place on 5.12.2006.It was investigated by local police initially; later by CBCID; and finally by CBI.   

The case of the prosecution was that the accused committed the double-murder between 6.45 and 7.00 p.m. at their residence.  The prosecution also alleged that the accused cut and removed two gold bangles of the deceased lady; and also took a gun, and cash of `550/-.  The accused sprinkled kerosene and coconut oil on the bed-sheet and pillows; and also sprinkled Pepsi, pesticide Entrine and Phenol all over the area, with a view to destroy the evidence.  

CBI commenced investigation on 20.11.2007. The Investigating Officer of CBI visited the scene on 13.12.2007.  The accused was arrested, two years later, on 12.5.2009.   

It is seen that the circumstances relied on by the prosecution against the accused were the following:-

●     1. MO-11, the billhook (vettukathi), was recovered from a nearby shed of the residential house of the accused, on 15.5.2009, on the basis of the confession statement.

●     2. PW4 saw the accused near the scene in the fateful evening.

●     3. The accused was identified, in a TI Parade, by a salesman of a Jewellery at Tirupur, to whom the accused sold two gold-bangles which were in a ‘cut and removed’ state.

●     4. The accused left to Tirupur on the next day morning (6.12.2016). 

While the Investigating Officers of the local police and CBCID were examined, they submitted that there was no strong evidence to implicate the accused.  

Though the accused left to Tirupur on the next day morning, the High Court did not find much importance to this matter for the reason that Tirupur was a place where the accused had business interest; and he returned on the next day.  The accused faced interrogation on 16.12.2006, also. 

The High Court did not accept the evidence of the Salesman of the Jewellery, for two reasons; first, the bangles were not recovered (but only gold coins were recovered); second, no Section 161 (Cr.P.C.) statement of this Salesman was produced.  Further, the High Court did not accept the identification of the accused after a period more than two years; and the salesman was not a person having prior acquaintance with the accused.

The High Court did not give much weight to the presence of the accused near to the house of the deceased couple; because, the accused was quite close to them.

Thus, the most incriminating circumstance that stood against the accused was recovery of the billhook, under Section 27 of the Evidence Act.

The High Court did not accept the recovery of the billhook under Section 27, for the following reasons-

●     1. The FSL Report did not link the traces of blood contained in the billhook to the crime; for, it was not detected as human blood.

●     2. It was improbable to conceal the billhook used for the crime for almost 3 years at a shed near to the house of the perpetrator of the crime; especially when a gun that was taken from the house of the deceased had been thrown into a well behind their house.

●     3. In any case, the recovery of the billhook is only one link in the chain of proof.  There were no other links to corroborate the suggested use of the billhook to commit the murder. Though the prosecution had a case that the billhook was used to cause the prying mark seen on the Almirah of the house of the deceased, it was also not corroborated. (The High Court pointed out that nothing had been stated as to the prying mark on the Almirah, in the Mahazar prepared by the local police.)

The High Court had deprecated production of the entire confession statement,‘selectivelyhighlighting the admissible portions within brackets’, in evidence. The High Court pointed out that it defeated the very purpose and object of Sections 25 & 26 of the Evidence Act.   

The High Court further pointed out that the disclosure statement of the accused contained the purchase of Pepsi and the pesticide Entrine though there was no evidence to connect the accused with the same; and that because of the admission of the entire confession statement, it so happened that the trial court referred to Pepsy and Entrine in its judgment so as to connect it with the accused. 

‘TRUTH’ is Left to the Subjective Satisfaction of the Court

It is evident from Section 3 of the Indian Evidence Act that TRUTH (or otherwise) of a disputed matter is left to the Subjective Satisfaction of the court.

The definition of ‘proved’ in Section 3 of the Evidence Act says that ‘a fact is said to be proved when (after considering the matter before it) the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists’. 

Further, Section 114 of the Evidence Act allows the court to presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct, etc. 

Objective Methods are also Laid Down to Determine Truth

The Evidence Act itself lays down the objective methods, including adequate restrictions, to arrive at the subjective satisfaction to determine the truth. The definition of ‘proved’ itself provides for ‘consideration of the matters before it’. The provision in Section 27 which bars the use of statement, given to police while an accused is in custody, is an important restriction in that line.   

It is a Very Difficult Mental Process to See Only the Bracketed Portion

As shown in K.Babu v. State of Kerala (supra), in Karunakaran v. State (1960 KLT 959) it is observed as under

●     “The practice of attestation of confessional statement by witnesses is an objectionable one. It prejudices the accused to safeguard whose interest the Legislature has enacted Sections 24 fo 26 of the Evidence Act. It has no legal sanction behind it. There is no harm in recording the accused’s statement in the first person at any great length in the case diary when the accused is arrested and questioned and in the preamble to the recovery mahazar reference to the reasons leading to the recovery may be made.

●     The whole thing appears to be an “intentional whittling down” of the wholesome provisions of Sections 25 and 26 of the Evidence Act. It is very easily said that the incriminating portion of a lengthy confessional “statement should be excluded. But it is a very difficult mental process to close your eyes to the details in the confessional statement and see only the bracketed portion and remain uninfluenced by the confession of the accused. This feat is possible ofperformance only by a few specially trained experts. There is no reason why the overburdened judicial officers should be saddled with an additional burden which has not the support of law or procedure.” (Quoted in: Mohammed v. State of Kerala (1962 KLT 120).

‘Omnia Vincit Veritas’: Truth Conquers All

The function of court is to save truth from falsehood (Bhagwan Tana Patil v. State of Maharashtra (1973 KLT OnLine 1197 (SC)).  There is a legal duty for the courts to find the truth (Mohanlal Shamji Sony  v. Union of India (1991 (2) KLT SN 14 (C.No. 21) SC).

To conclude, the application of law and appreciation of evidence in K. Babu v. State of Kerala (2023(6) KLT 96), are promising and optimistic.

Restore Back Reading

(By K.Ramakumar, Senior Advocate, High Court of Kerala)

Even during the time of Charles Dickens who said “let us kill all lawyers”, legal profession was looked upon as learned and honorable. Lawyers in England started addressing their fellow lawyers as learned friends and Judges their compeers as learned brothers. This, is inherited in India.

The dictionary meaning of the word ‘learned’ is having knowledge, erudite. Some dictionaries also record it as deeply read. Knowledge is acquired only by reading. Reading therefore is an inevitable part of the life of a worthy lawyer.

During the freedom movement, we had very prominent lawyers who were not only knowledgeable in law but proficient in literature, history, philosophy etc. Mahatma Gandhi wrote in inimitable style and Impressive English. So did Jawaharlal Nehru. Shri Rajgopalachari had written wonderful books about our epics in racy and refulgent language. He rightly said that English is a gift of Goddess Sarswathi to us. Shri K.M. Munshi, a top lawyer and the founder of Bharatiya Vidya Bhavan was also the Editor of Bhavans’ journal which he enriched with his scintillating articles. Dr.Katju a prominent lawyer of Allahabad and a former Chief Minister and Defence Minister was a prolific writer.
Sir Ashutosh Mukherjee, the famous lawyer from Calcutta High Court was appointed Vice Chancellor of a prestigious University in recognition of his profound learning. The flowery judgments rendered by the great Krishna Iyer are still green in the memory of lawyers.
Late Shri Justice Mathew was a voracious reader and it is not for nothing that he journeyed from a tiny Kottayam Court to the top court of the country earning the accolade as an eminent jurist.

Knowledge and reading are therefore an inseparable part of the life of a lawyer. There is nothing under the sun that a lawyer shall not know. Necessarily therefore, he has to acquire command of the language used in court which still is English. Impeccable English should be one of the proud possession of any lawyer worth the name.

Unfortunately, these days the practice of learning, reading and acquiring knowledge have all vanished. Law reports remain unwrapped in many legal offices. The younger generation is now attracted to google, internet etc., which while no doubt is welcome, is a distraction from the requisite reading habit for any lawyer. A young entrant in the bar should inculcate the use of legal language through judgments from eminent Judges and pleadings drawn by efficient lawyers commanding good word power. These practices are slowly vanishing from the legal profession. Expressions like ‘recordical evidence’ and ‘thefted property’ have started regularly appearing in judgments of Magistrates. The merciless and murderous assault on the language of the court has become daily event. Even reported judgements contain expressions like “not entitled to be disqualified”. Sooner or later one need not be surprised if typically, colloquial expressions like ‘head going affair’ and ‘elephant matter’ also start appearing in judgments. This is indeed a sorry state of affairs.

Language and good command over it are intrinsically part of a lawyer’s job. He is not expected to use incorrect language as long as the language thrust upon us by Macauley remains the language of the court. Though literary flavour like in the past cannot be expected, at least the use of correct and appropriate language without grammatical errors is a must in the life of a lawyer.

This can be achieved only by the regular reading of law journals, legal literature and books of eminent lawyers. The habit of reading is practically waning and even disappearing from the lives of lawyers. Not even the Criminal Manual or the Code of Civil Procedure are visibly present in our subordinate courts these days. 

We will have no right to call ourselves learned, noble etc., (about which the litigants are already skeptical), if we do not enrich our knowledge by reading and reading.

Seniors in the bar by quality should take a lead in shaping the reading habit of green horns and shall insist that a trainee under him reads all important judgements and inculcate the habit of writing good English.

The entry of bright and brilliant boys and girls from institutions like NUALS by choice and not chance had raised a ray of hope of rejuvenating the profession and refurbish its sagging and sinking image. Alas, most of them after a short stint in the bar, unable to cope up with practices unimaginable to them, are opting for desk jobs being hooked by multi nationals, with attractive pay packets.

I am aware I will have no takers now. Still, an old timer’s habits die hard.

A Corollary to ‘Old is Gold”

(By Gowri Sreedharan, Advocate, Palakkad)

Let me at the outset congratulate our learned senior Shri P.B.Menon for his bold and upright comments regarding the judicial system. Subordinate judiciary is the backbone of judiciary. Doing away with oral submissions and relying on written evidence and arguments, court is deprived of appreciating the demeanour of witnesses, power of arguments and opportunity of getting clarification from counsels, if any doubt arises as regards any points of law. Thus, viewed in any angle, the 2002 amendment of CPC was not helpful in promoting justice. As senior Sri. P.B.Menon rightly pointed out it is at the trial stage that the foundation of a case is laid and a trial lawyer can make or mar case. So minimum experience of 5 to 7
years should be prescribed for judicial officers which would help them in the long run, to render speedy and effective justice. It is said that great men think alike.  It is interesting to note that Fali S.Nariman, a great jurist and lawyer has also expressed similar views in his Autobiography ‘Before Memory Fades’, he says “Naming lawyers - great and famous and yet so different remind me that when you mention a famous racehorse, they always ask you, ‘from which stable?’ The stable is important. It establishes the hierarchy and cultural tradition in which the lawyer has been reared.”

Mr.Nariman also speaks of his experiences, as a junior lawyer to Sir Jamshedji Kanga, a great lawyer of those times. “It is not in writs that you got your training in the law but in contested suits. The training that we received while conducting civil trials or assisting in the conduct of such trials was invaluable. I conducted Civil cases on my own in my 5th year at the bar. There were many pitfalls and we had to be precise in our pleadings. All the relevant facts had to be presented and relevant legal submissions had to be made. The statements in written pleadings had to disclose a cause of action....  what was pleaded could only be proved by means of proof acceptable in a court of law, according to the law of evidence. The ordeal of examination of witnesses and their cross examination was both exciting and exhausting. We had to think on our feet to ask the right questions and make sure they were not too many. We had to read the notes of evidence as recorded by the Judge and suggest correction, if any, the very next day. And in the evening we also had to prepare for further examination and cross examination for the following day. In cases where the documents disclosed were many, and there was much oral evidence, the night was always sleepless with the following thoughts recurring ‘If I only had not asked the witness that stupid question... All this involved intense concentration and helped to train the mind by sharpening it. Unfortunately such invaluable experience is denied to many young practitioners of today because of the surfeit of writs where the rules of pleadings are relaxed. Infact, they are not even prescribed. The casuality has been precision and exactness.”

To make things worse, from the perspective of a litigant, many more shortcut methods such as prelitigation mediation, adalat, arbitration and such other procedures have been introduced in the legal system allegedly to prevent Docket explosion. As a result, a litigant who has a genuine case is virtually denied of a fair trial. With the introduction of artificial intelligence the role of the lawyer becomes minimal. We can only lament that civil lawyers are becoming a vanishing tribe. But we have to move with the times and so have to cope up with these modern trends.

Even in the present scenario, perhaps the Apex Court could do something to improve the quality of the system by atleast recruiting experienced lawyers to the bench instead of taking half baked lawyers. Let us adopt the maxim “Evolve or perish”, if we want to continue in the profession.

A Stroke from Einstein’s Wisdom to Elucidate Reverse
Burden in Cheque Bounce Cases

Ashly Harshad, Advocate, Supreme Court

Einstein had famously said:

If I had an hour to solve a problem, I’d spend 55 minutes thinking about the problem and 5 minutes thinking about solutions”.

Explaining the above-mentioned quote, Justice Aravind Kumar in the judgment Rajesh Jain v. Ajay Singh(2023 (6) KLT 209 (SC)) stated,

“Exaggerated as it may sound, he is believed to have suggested that quality of the solution one generates is directly proportionate to one’s ability to identify the problem. A well-defined problem often contains its own solution within it.”

It’s quite intriguing that the Hon’ble Judge has used creative way to emphasize the importance of problem-solving, specifically in the context of framing legal issues and allocating the burden of proof in cheque bounce cases involving Sections 138 and 139 of the Negotiable Instruments Act, 1881.

He explained,-

 “Drawing from Einstein’s quote, if the issue had been properly framed after careful thought and application of judicial mind, and the onus correctly fixed, perhaps, the outcome at trial would have been very different and this litigation might not have travelled all the way up to this Court.”

 The following paragraphs saw the application of the Einstein’s theory while being critical of the impugned High Court judgment.  

Initial framing of the question is critical

In legal cases, the initial framing of the legal question is critical. If the legal issue is not carefully defined, it can lead to erroneous judgments. This is analogous to the importance of understanding the problem before seeking a solution.

It is quoted as “When the initial framing of the question itself being erroneous, one cannot expect the outcome to be right.”

Incorrect fixation of onus on the complainant and improper understanding of Section 139

It is asserted that there was a fundamental error in the approach of the High Court when it placed the onus on the complainant instead of fixing it on the accused. The High Court failed to understand the nature of presumption in Section 139 when it emphasized that there is want of evidence on part of the complainant in order to support his allegation of having extended loan to the accused, when it ought to have instead concerned itself with the case set up by the accused and whether he had discharged his evidential burden by proving that there existed no debt/liability at the time of issuance of cheque. High Court seems to have lost sight of the legal principle that once the presumption under Section 139 was activated it has the effect of shifting the evidential burden on the accused. This error led to a flawed judgment.

As an outcome, the impugned High Court judgment was set aside and the complaint under Section 138 of the Negotiable Instruments Act, 1881 preferred by the complainant was allowed. The respondent accused was convicted and fined twice the amount of the bounced cheque.

To summarise, the use of Einstein’s quote served as a powerful metaphor for highlighting the importance of properly defining the legal issue and application of judicial mind in a legal case. It underscores that a well-defined legal issue often contains its own solution within it, and errors in this process can lead to erroneous judicial outcomes.