College Campus Politics - Nocent Or Innocent?

(By Mr. Justice V.R. Krishna Iyer)

The academic discipline which describes and analyses the operations of the Government, the State and other political organisations and any other factors which influence their behaviour, such as social and economic, in short, a study as to how power is exercised, and by whom (and for whose benefit), through the administration of public power, of people's affairs may perhaps be described as politics, a great concern of every intelligent member of society. Albert Einstein has observed: "It is the duty of every citizen according to his best capacity to give validity to his conviction in political affairs". The ignorance of politics among the masses of a country paves the way for the rise of tyranny and the fall of democracy. The right to govern belongs to every citizen and so political science can never be alienated from the concern of the community which ultimately secures for the citizenry justice, liberty, equality, dignity of the individual and the integrity of the Nation. It is a grave default, therefore, to deny to the population at any level the right and, indeed, the duty to acquire a basic knowledge of local, national and global political forces. It is a gravemen of injustice and goofy understanding of public affairs to command that political science shall be anathema in a college campus since, in the last analysis, such allergy amounts to an advocacy of political illiteracy, social insensitivity and cultural Philistinism. The grammar of politics, in an enlightened sense, is the birthright of every member of our polity which is sovereign, socialist, secular, democratic, republic as India is and shall be. The great guardian of the rights of the people in a Republic is an enlightened youth educated in the various dimensions and instruments of political science such as the legislature and the judicature. Indeed, the right to vote vested in everyone at age eighteen becomes a meaningful operation if only the exercise of franchise is an expression of political wisdom. In the finest sense of the word, politics must be obligatorily a subject of learning inside every college campus which owes allegiance to the Constitution and its Preambular Pledge. 'We, the people of India' - the first five words of our Constitution - have made a revolutionary resolution to defend the politics of the Constitution. Winston Churchill once defined and defended the ballot process which every Judge and administrator must constantly remember: "A little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper - no amount of rhetoric or discussion can possibly diminish the overwhelming importance of the point". Be politically educated at age eighteen or be damned as dumb-driven cattle in a dying democracy.

There is a judicial impression among the robed brethren in India that politics is a vice like alcoholism or drug addiction and therefore be banned or ostracized as a mischief or menace, pathologically spreading as a dangerous syndrome in our institutions of higher learning. A Division Bench of the Kerala High Court, gave a ruling which through the media was popularly interpreted as a toxic tendency of student politics in college campuses which has to be curbed or tabooed for salvation of education. Professor J. A.G. Griffith in his powerful book. The Politics of the Judiciary has argued: 'Judges are human with human prejudice.... some are more human than others' and considered right wing opinion as an occupational bias of the British judicial profession. Surely, the Indian Judiciary of which I had been a member for some years, is made of more liberal staff, more democratic ethos, more progressive eidos.

The Kerala Judges in the Sojan Francis case held against the nineteen year old undergraduate, a member of the SFI, on the ground of inadequate number of days of attendance necessary as a qualification for taking the examination. This would have disposed off the matter. But the court, on the score of political importance, launched on a long discussion about the constitutionality of prohibiting political activity altogether within the college campuses. The college concerned, St. Thomas College, Palai, has certain guidelines regarding general discipline. One of them with which the Court was concerned directly states that political activism is strictly banned in the campus and that 'students are forbidden to organise or attend meetings other than the official ones'. Strikes are prohibited within the campus, and the challenge of the student was that such forbiddance was violative of Art.19(i)(a) & (c) of the Constitution. Since this question is of 'considerable general importance', the Court felt the urgency of the issue as one of adjudicatory moment.

The prohibitive clause which has been upheld by the Court, if scrutinised with a little care reveals that organisation of or attendance at meetings which are official ones are permitted (even if they be of the character of political activism). So much so there is a discriminatory dimension underlying the ban which, in fairness, means that meetings which finds favour with the management fall within the permissible category. Communal managements of educational institutions are the bane of the Kerala Educational establishment. It is full of politics, survives by politics, propagates political perspectives and controls the State educational establishment through its political clout. Therefore, officially permitted political meetings, often dangerous to the progressive development of the State and the Nation, enjoy open sesame or free access. Now that the controversial clause has received judicial sanction the ruling allows the Principal to spread within the campus his brand of politics and make every other political study through meetings and campaigns bete noire. Reactionary politics of private managements thus finds a haven inside colleges and all avant-grade political thought and action is frowned upon. This is arbitrary and unconstitutional. Indeed there is no rationale or logical basis of classification as the foundation for the forbiddance. There is no rational differentia indicated in the clause which will make a meeting official just, fair and reasonable. It is vague and can be capricious, depending on the management's will to give free rein to the partisan politics of a management. If clear guidelines comporting with the values of our Constitution vis a vis, political education and action, are transparently stated as governing the management's power to prohibit, it is a different matter. Absent such directive, liberal discussion becomes suppressed or hidebound and the cause of free thought fails as violative of Arts.19, 20 and 21 - Art.14 because the classification is not based on a rational differentia related to a constitutionally acceptable objective. The ipse dixit of the Principal calling it official does not make the meeting lose its vice of inequality before the law. Art.19 is violated because freedom of expression involves freedom of action, information and communication of ideas to deny which the college authorities can stamp a kind of activity as not officially acceptable. It is violative of Art.21 because the 'right to life' includes the right to moral, social and cultural development which, in turn, involves a free opportunity for uninhibited political education and it is contradicted by the clause which vests a ukase in the management. College Education is improved through college debates and free speech. To control this collegiate freedom is to permit manufacture of young minds conditioned by the management politics. To swear by what is officially ordered as sound political activity and to swear at every other political process to which the Principal is allergic is to create conditioned minds which is the negation of political pluralism, democratic diversity and development autonomy. Our Republic will suffer from robotism if the creative vitality of the young generation at college is ordered about by the official church, communal management and mindless establishments which run schools of higher education. This is a new menace which benumbs the intellectual potential of the Nation. Apparently, even the judiciary is not sufficiently alterted about this omnious portent. Citing Supreme Court decisions about the political calamity of student wings of Parties in campuses misses the great tragedy of pertrifying human originality. Every young mind passing through Colleges must be trained to be sensitive to the constitutional pledge of justice, social, economic and political, liberty of thought and expression and the dignity of the individual in relation to the Nation's integrity. Platitudes and claptraps about student politics and Party allurements misses the oxygen of socialism, secularism and democracy which are nothing but politics but are the quintessences of our constitutional culture.

The Principal is the head of the institution but functions under the management and its political philosophy. It is right to prevent hostile groups of students battling within the campus or creating babel or bedlam making the process of learning impossible. Peace, health, morality and like vital values constitute discipline and must be preserved by the Principal. College premises cannot become scenes of sound and fury obstructing classes, but these important control measures of discipline do not justify taboo of political discussions, political magazines, political association and political seminars inside the premises save with the permission of the Principal as if to avoid law and order problems.

It is unfortunate to compare Government servants and their rules of conduct with student's code of conduct. The difference is too obvious to need explanation. Students study and learning has several processes. Teachers, Government servants and other employees in public institutions certainly can have their political views but cannot resort to conduct or membership which will distract from or interfere with the neutrality needed for functional efficiency. It is confusion to mix up this category with the student community; of course, disturbing demonstration, obstructive strike, ragging and other operations which make classes difficult to be conducted or people's study menaced by turbulence - these can always be prevented, because they have a nexus to the goals of a student in college to equip himself with knowledge.

To banish politics for a student of eighteen years of age is to deny him the fundamental opportunity of becoming a good citizen to vote. It is anti-democratic to refuse a student a campus opportunity to talk politics, to read politics, to discuss politics in an association, to argue politics with his fellow students, subject, of course, to a peaceful atmosphere, disciplined behaviour and obedience to public health and morality. That orderly political activity by a student community governed by democratic decency and academic dignity will cause chaos in the campus is a fashionable fallacy and dubious diagnosis and I humbly believe will never be a judicial illusion. Educational pharmacopoeia, I agree, must cure the anarchic pathology of party politicking, even if officially backed by Management-disguised policy, which often is subversive of radical constitutional activism. Blanket ban on campus political activity, save official ones, has a fascist flavour.

Politics is a social science and its study through organised movements, if peacefully pursued, even if a wee-bit restively and passionately, deserves no veto. Heeding the protests against a blanket ban, may be, the Court has agreed to a review and, as a democratic gesture, invited everyone interested to present his/her submission. I pay a tribute to the Judges for this judicious measure. I remember that while on the Supreme Court, presiding over a Bench, I was hearing a case involving the parameters of death sentence I orally announced that any member of the bar interested in the cause would be heard, since the question was of life and death moment. A review is a remedy for the Judges themselves to correct an error if a flaw has vitiated the judgment already delivered. No one, not even the wisest Judge, is above a commission or omission which needs correction. Way back in 1980 in one judgment the Court reviewed and reserved itself. There I wrote:

Horace Wrote "But if Homer, who is good, nods for a moment, I think it a shame ". We, in the Supreme Court, do 'nod' despite great care to be correct, and once a clear error in our judgment is revealed, no sense of shame or infallibility complex obsesses us or dissuades this Court from the anxiety to be ultimately right, not consistently wrong. The present petition for review is one such and we have listened, at unusual length, to counsel's oral submissions having felt that an error in the judgment under review, likely to injure and unsettle, needed to be mended. (AIR 1980 SC1187)

I am convinced; and by this I once again pay a tribute to the Judges concerned, that the case will be reheard with a conviction that infallibility is not a judicial inviolability.

Re-Marriage in Sharia is Cruel

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

The word re-marriage gives the impression that a divorced husband and wife marry again. Every re-marriage preceeds a divorce. The personal laws like the Hindu Marriage Act, 1955,Parsi Marriage and Divorce Act, 1936, do not have any provision for re-marriage. Divorce is a permanent disunion. There is provision for re-marriage in the Indian Divorce Act, 1869. In such a case, the prior marriage presumed to be dissolved by death. This is not the case with Muslim personal law-sharia. S.336(5) of the Principles of Mohammedan Law, 18th edition, speaks about remarriage of divorced couple.

(i) Where the husband has repudiated his wife by three pronouncements (S.311(2) and S.311(3)(i)), it is not lawful for him to marry her again until she has married another man, and the latter has divorced her or died after actual consumation of the marriage. The presumption of marriage arising from an acknowledgment of legitimacy (S.267) does not apply to a re-marriage between divorced persons unless it is established that the bar to re-marriage created by the divorce was removed by proving an intermediate marriage and a subsequent divorce after actual consumation of (f) ill (a). Even if a remarriage between the divorced persons is proved, the marriage is not valid unless it is established that the bar to re-marriage was removed the mere fact that the parties have re-married does not raise any presumption as to the fulfillment of the divorce conditions (g) ill (b). A marriage without fulfillment of the above conditions is irregular, not void (Baillie 151).

Dr. TahirMohamood's Muslim Law of lndia, 1980, edition contains similar provisions. The cruel side of this provision is that the divorced wife has to marry another person, consummate and then gets divorced for re-marriage with her first husband. The divorce may be with her fault or without her fault. The woman is always the victim. The husband remains serene. The terror and tension is with the woman and her family.

I have a case in hand. A socially and educationally well placed couple, the wife is an Advocate and the husband is a high placed Government employee. Both are in their twenties and have a child. For lack of temperament and small things, their life estranged and ended in divorce. Litigation started to establish their material rights. It is a fact in every broken family, the child is the victim. In the Court background, the couple decides to re-marry for the welfare of the child. Then comes the pre-conditions of re-marriage. The couple as well as their dear and near ones shocked. In a previous case a second marriage took place for a re-marriage, but the second husband refused to divorce. So the remarriage remained a dream. A versatile and lofty idea of re-marriage in Sharia is torpedoed from within. So in my view re-marriage in Sharia is cruel one and in-human.

Unwanted Section of the Code

(By S.A. Karim, Advocate, Vanchiyur, Thiruvanandapuram)

The Criminal Procedure Code 1973, hereinafter refers the Code, lays down the procedure for the trial of cases in the Sessions Courts and the Magistrate Courts. In summons as well as warrant cases, after the prosecution evidence is over the accused is questioned under S.313 of the Code. It intends to give opportunity to the accused to hear his version on the evidence. At the close of the 313 statement, the Court asks the accused whether there is any defence evidence. If the answer is yes, the court straight away posts the case for such evidence. At the close of the defence evidence, the Court hears the Public Prosecutor and the defence counsel and posts the case for judgment. It may end in acquittal or conviction. This is the time tested procedure in sessions as well as other cases. There are Courts that strictly follow the procedure laid down in the Code. In this back ground, S. 232 of the Code is relevant. It reads-

"If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal."

Under this section the Public Prosecutor and the defence counsel argue the case on the evidence adduced by the prosecution. From the evidence, the Judge considers that the prosecution has not proved the case, the Judge acquits the accused and the matter ends there as regards the accused. If the Judge considers there is evidence, the accused is permitted to adduce defence evidence under S.233 and then the matter goes for argument and judgment under Ss.234 and 235 respectively of the Code. As stated earlier, it may end in acquittal or conviction. Fate of the criminal case rests with the prosecution evidence. It is the settled position. If there is prosecution evidence, no amount of defence evidence improves the case. Even without following the procedure under S.232, fair and final judgment is possible if the defence evidence, if any, is taken immediately after 313 statement, argued and decided the case. In this context S.232 of the Code is unwanted one.

Nonagenarian Lawyer

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

There is no necessity to conduct a poll to select the oldest lawyer of the Kerala High Court Bar. He is pushing 93. Great, indeed. Even at this age and stage, he has a certain sort of hubristic self-confidence. He negates the haunting line of Coleridge, in his Rhyme of the Ancient Mariner: "The sun's rim dips, the stars rush and with one stride comes the dark". He is a 'Richie Rich' lawyer. Let me reveal his name. He is Senior Advocate Sri. K.C. John, a lawyer who keeps his own counsel. He is his own man; he did not try to be like any other. He is not a lawyer in love with lime-light. According to him, there is no 'paddock' parade in the legal profession. I am astonished with his energy level, even at the age of 92.

It is the legal profession which Sri. John eats, sleeps and drinks. Whether in his Office or in Court, he is constantly on the go. The heavy homework that goes into every brief, is evident from his delivery. He believes in spending quality time with each client. He does his duty, displaying a welcome maturity. He should be feeling very fulfilled as a lawyer; even at 92, he is fit and firing. He is ageing only very slowly. According to him, the Bench-Bar relationship is not 'cohabitation', but co-operation/co-ordination. At 92, he feels, he is still a work in progress. He never makes cocktail submissions in Court.

Though not born with a silver spoon, he acquired platinum. He is a lawyer with a deep pocket.

In old-age, the body deteriorates, muscles atrophy, bones grow thin, and skin loses its elasticity. But Sri. John's brains are guaranteed by God. He has a wonderful memory. He argues his cases as if he is using an invisible blackboard. He never argues in muted and muffled voice. His mind is his dictionary. Even as on this day, his brain starts working the moment he gets up in the morning, and does not stop until he gets into his bed. His memory bank has not lost its deposits. He goes to bed only after seeing the other side of the midnight. He knows that he does not require a licence to learn. He has a heart to feel and a head to think. He is sober and strong, even in times of tense moments and red faces. Even at 92, he has not become a sitting duck. Attending Court regularly is one of his indulgences. He has a positive commitment to the profession.

Though the job is repetitive and rigmarole, Sri. John finds charm in the legal profession. After he entered the legal profession, he did not experience any rustiness. He has taken the legal profession terribly seriously; and he does it for generating 'professional' capital, when it seems to be time for a person like him to mourn the debris of a professional crash/wreck; and, that, at a time when our tribe is increasing like baby-boomers.

Overall though, Sri. John has left a good lesson for the lawyers. He believed that law practice is a profession, not a mission; and that advocates are share-holders of the judicature. The charms of arguments and counter-arguments are a thing of the past in Courts. These are days of Mandamus Baggage of High Court lawyers. Let us have a mournful introspection into the reasons for the fall of the profession. The urgency of arresting the precipitous and inexorable landslide in the functioning of the legal profession, is real. There was a time when the legal profession was an adventure. "But where are capable lawyers and Judges," asks Sri. John. These are days of 'nowhere' lawyers; and the Advocates' Association is only the lawyers' dressing room. There is no investment in knowledge. A professional penal code seems to be necessary, says Sri. John.

Sri. John was born in June, 1911, when nobody connected today with the High Court of Kerala, namely Judges, lawyers, para-legal assistants, and employees and officers, was thought of. He started legal practice in May, 1937, when no sitting Judge of the High Court was even born. His first son was born in September, 1938. No sitting Judge of the High Court, is older than his elder son. Unique, indeed.

"Grow old with me, the best is yet to be," wrote Robert Browning. So says Sri. K.C. John also.

Attentive Silence, Please

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

One can certainly gather gems from old law books and reports. Hark, the shelf life of law books and reports is not like that of packaged food. At the risk of being infected with dust allergy,recently I turned the pages of Lord Chancellor Bacon's "Essays..........", and read: "Patience andgravity of hearing is an essential part of justice; and an over-speaking Judge is no well-turned cymbal". My right response was: 'what a true saying'. The provocation for this write up is Bacon's rendering. I pulled out several Law Lords and authors from my shelf for this purpose. I thought hard to find out a new word for captioning this article, but could not succeed. Only a prolific wordsmith like Justice V.R. Krishna Iyer could have done it in no time.

Denning L.J. was of the view (in Jones v. National Coal Board) that in the daily pursuit of finding out the truth by the Judge the advocate plays an honourable and necessary role, and quoted Lord Eldon L.C: "Truth is best discovered by powerful statements on both sides of the question". (Ex parte Lloyd). Lord Greene M.R. explained (in Yuill v. Yuill) that justice is best done by a Judge who holds the balance between the contending parties without himself taking part in their disputations and clouding his vision by the dust of conflict. And Denning L.J. again (in Jones case): "It is all very well to paint justice blind, but she does better without a bandageround her eyes. She should be blind indeed to favour or prejudice.......And it is for the advocateto state his case as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost..... And the Judge's part is to make sure by wise intervention that he follows the points that the advocates are making and can assesses their worth; and at the end to make up his mind where the truth lies.......... If he goes beyond this, he drops the mantle of a Judge and assumes the robe of an advocate; and the change does not become him well". That, says it all. A Judge should not rub in the embarrassment of a lawyer, by disturbing the line, length and speed of his argument.

Sri. S.V. Gupte, a former Attorney-Genera! of India, had spoken about the problem of overspeaking Judges by pointing out that it is impossible to make headway in a court where the person who should not talk does most of the talking and the person who should argue does not get a word in edgeways. This is referred to by Seervai in his Constitutional Law of India; and Seervai himself was of the view that a Judge who intervenes too much could drain the case of all joy from the point of view of the advocate, who, whether he had won or lost, comes out of the court an exhausted person. A Judge who callas 'no ball' to every delivery, is a tearful umpire. The Setalvad Commission Report 1957 refers to 'talkative' and 'strong silent' Judges and agreed with Lord Justice Denning's observation in Jones case. The Bar cannot afford to wage an unequal war of words with the Bench.

From the greatest of the great Rajamannar C J. to Basant, J., I have, by now, appeared and argued before almost one hundred and fifty Judges, of which one hundred and twenty-two are of the High Court of Kerala, from Koshy, C. J. to Basant, J. I can pigeonhole them as' strong silent', reticent, stone-cold, talkative, hustling, lively, aggressive and assertive. We require sweet mannered man-size Judge, who is the man in the middle, not the man in the moon. We require Judge who have learnt lessons in courtesy; and who discipline words to judicial purpose, while sitting in box seat; not Judges who adopt command mode of treating lawyers and disposing of cases. We pray for attentive silence, with only wise intervention, not tug of talk, realising that an advocate trades arguments with the opposite lawyer, not with the Court. Mark, what Chief Baron Palles said: "The Judge who opens his mouth closes his mind".

I call upon the Kerala High Court Advocates' Association to bestow attention on the topic of this write-up, instead of remaining an entertainment capital of the High Court.