Should "Kith and Kin" Be Curbed?

(By Pauly Mathew Muricken, Advocate, High Court of Kerala, Ernakulam)

The Bar Council of India's novel venture to breathe fresh air into the controversial 'Theory of Relativity' by publishing the State-wise list of HC Judges whose relatives are practising in the same courts, has invited keen and live discussions and deliberations among the legal and juristic circles. While the aim of BCI appears to be laudable, the purity of its action when judged vis-a-vis the stage at which it is pressed into service have aroused sentiments of doubt and suspicion in the minds of independently thinking people and the legal intelligentia. The object of the BCI seems to be to strengthen the public faith in the judicial process.

According to the list published by BCI, Delhi High Court tops with 16 Judges with lawyer relatives. It is followed by Madras with 8 Judges having lawyer relatives practising there. In Kerala, Patna and Rajasthan High Courts, there are 7 Judges each with lawyer relatives practising in the concerned High Court. In each of these 3 States, number of practising lawyer relatives are 10. Can the Judges or the lawyer relatives be blamed for this or is the Bar Council responsible for the emergence of such a situation. The larger legal issue involved herein boils down to the question 'Is there any breach of etiquette or impropriety in a lawyer relative practising in the same Court'.

In India, every citizen has the constitutional right under Art.19(1)(g) to choose his profession or calling subject only to the limits as may be imposed by the State in the interests of the public welfare and the other grounds mentioned in cl.(6) of Art.19 of the Constitution of India. Constitution guarantees this right to every citizen, as a member of a civilised society. It only recognises reasonable restrictions on this right, and a restriction is reasonable only if it has a utilitarian design to secure the greatest good of the greatest number.

The law relating to legal practitioners in India is governed by the Advocates Act, 1961, a central legislation. The Act authorises the Bar Council of India to make rules prescribing the standards of professional conduct and etiquette to be observed by Advocates. The Act inter-alia prescribes the qualifications as well as disqualifications for admission as Advocates. The qualifications for enrolment is dealt with under S. 24 and the disqualification for enrolment is specified in S.24A of the Act. The only disqualification prescribed is that a person shall not be enrolled as an Advocate on a State roll if he is convicted of an offence involving moral turpitude or convicted of an offence under the provisions of the Untouchability (Offences) Act, 1955. The theory ofrelativity does not find a place in S.28A of the Advocates Act, 1961 for the purpose of admission as an Advocate. Every person admitted as an Advocate on a State roll has the right to practice throughout the territories to which the Act applies in all Courts including the Supreme Court, before Tribunals and other legal forums, unless their appearance is expressly forbidden by a separate legislation. This right is recognised in S. 30 of the Act. The same Act empowers the High Court under S. 34(1) to make rules laying down the conditions subject to which an Advocate shall be permitted to practice in that Court and the Courts subordinate thereto. In the exercise of the above power, the High Court of Kerala has framed rules in 1969 regarding conditions of practice of Advocates in the High Court and in the Courts subordinate thereto. These rules have been published in Kerala Gazette No.37 dated 23.9.1969. Nowhere in the rules restriction has been placed on lawyer relatives practising in the same court or in any Court subordinate thereto.

The norms regulating the practice of lawyer relatives is contained in Chapter II, Part VI, R.6 of the BCI Rules. It reads "An advocate shall not enter appearance, act, plead or practice in any way before a Court, tribunal or authority mentioned in S. 30 of the Advocates Act, if the Court or any member thereof is related to an Advocate as father, grandfather, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law, daughter-in-law or sister-in-law".

The above rule is self-speaking and on a consideration of the rule, it can be seen that what the rule seeks to achieve is to prevent kith and kin, from appearing in the Court or forum presided over by his/her judge relative. The rule does not prevent in any way a lawyer relative from appearing and pleading in a different bench of the same Court or forum or in the Courts or forums subordinate thereto. That being so, it is unrealistic to curb the practice of Lawyer relatives in the other Benches of the Court or forum or in the Courts or forums subordinate thereto.

The propriety of a Lawyer relative appealing before a Judge relative was always a debatable issue and the issue has arisen for consideration on occasions prior to the coming into force of the BCI Rules. The issue was directly a lis to be decided by the Full Bench of the High Court of Travancore In Re-An Advocate (1120 (1) TLT, Vol. XIX Page 1). The issue arose out of a reference made by Madhavan Pillay, J., (as he then was) involving serious questions of procedure on a question as to whether it was proper for Mr. T.S. Krishnamurthy Iyer, Advocate, to accept Vakkalath for pleading in a matter which came up before his father, Mr. Justice Sankarasubba Iyer, having due regard to the rules and practice contained in Rr.453 & 489 of the Civil Courts' Guide. After due consideration of the entire issue, the Full Bench (Per T.M. Krishnasvvami Aiyar, C.J., G.D. Nokes & K.C. Abraham, JJ.) unanimously held that there is no definite rule of law or procedure under which an Advocate is prohibited from appearing before a Judge of the High Court, who happens to be his relation. But it has been the invariable practice in the High Court never to post any matter before a Judge or a Bench including a Judge, who was closely related to an Advocate appearing for one of the parties. The Full Bench further held that R. 453 of the Civil Courts Guide was intended only for the guidance of subordinate Courts. The issue which remained settled vide the above decision has now become unsettled in view of the recent attempt made by the Bar Council of India.

In England, a barrister is not permitted to practise habitually in a County Court or the Crown Court where his father or near relative sits as a Judge but there is no objection to his practising in a Court where his father is one of several Judges and it has never been considered improper for a Barrister to appear before his father in the High Court, Court of Appeal or House of Laws. (Halsbury's Law of England, 4th Ed., para.1145). It is recognized as a rule of the profession. Several well acclaimed Judges in England did have opportunity to practice in the higher courts before their father who happened to be the Judges of the said Court. The list is rather exhaustive and it includes Lords Russel of Killowen, Thankerton, Romer, Finlay, Charles, Macnaghlen, Lawrence, Bucknill and Henn Collins. The same is the practice in the United States as well. The above practice was being followed on the reasoning that if a lawyer relative appears before a Court where his father is one of several Judges, it is impossible to know beforehand which Judge will in fact try a case.

The legitimacy of law depends upon the consent of the. parties in dispute. No doubt, Courts must be above any form of control or influence. The traditional conceptions of Judge and Court is well expressed by an illustrious American Lawyer Henry Lummis: 'The moment, a decision is controlled or affected by any form of external influence or pressure, that moment the Judge ceases to exist'. Therefore, as pointed out by the Apex Court in Satendra Narain Singh v. Ram Nath Singh, AIR 1984 SC 1755 at P. 1757, it is better and appropriate that the Advocate son withdraws from the case than the Judge father.

Legal Profession, more or less, is inherited by succession. Judges holding the judicial mantle are lawyer-turned Judges. A Judge may in fact desire to have his son or daughter or in laws to follow the noble legal profession or the son or the daughter or the in-laws may develop an interest in themselves to follow the same profession, as it is quite natural in most of the cases. Can the Judges or lawyer relatives be blamed for it. There is yet another face for this delicate issue. Lawyer relatives might have entered the profession or longed to enter even before their close ones are elevated as Judges. Is it not paradoxical to curb their practice for no fault of theirs, or to punish the Judges in the form of transfer for the reason that their relatives are practising in the same Court, not before their relative Judges, but before other benches of Judges who do not have their lawyer relatives practising and who even dislike lawyer relatives practising in the same Court at all. What is the comparative gain in restricting their practice in the subordinate courts and forums when the subordinate Courts and Tribunals come under the direct administrative control and supervision of the High Court. If the likelihood of bias is the reason for the apprehension, are there not remedies available to the party concerned who feels that bias have kept in, before the same Court and before the higher Court. The BCI instead of attempting to trace out the list of lawyer relatives and related Judges must leave the Theory of Relativity to the fair conscience of the lawyer relatives or else must adopt a pragmatic approach which does not involve in chasing the lawyer relatives of the related Judges, but regulating the practice of lawyer relatives in such a matter that it does not shatter the confidence of the people in the impartiality of Judges.

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.

Justice P.T. Raman Nayar, The Sole I.C.S. Judge in Kerala 'Steel Frame and Soft Touch'

(By V. Bhaskaran Nambiar, Former Advocate General and Judge, High Court)

Justice P.T. Raman Nayar, the sole I.C.S. Judge on the Bench of the Kerala High Court, a judicial stalwart, a colossus of a Judge is no more with us. He did not die to be forgotten; but lived to be remembered even after death. His death is only an 'inevitable adventure', not a forgotten epitaph; but an eternal revival of his greatness. Lord Byron said, 'Tom, no more - so no more of Tom'. But Byron did not live to see P.T.R.N.

It is not the purpose of this article to refer to the memorable decisions he rendered on the constitutional, criminal, civil and company jurisdictions, including the famous Mariyakutty murder case, the Pala Central Bank case and the E.M.S. Nambudiripad contempt case, but to show the sidelights of his character as a Judge and as a man, as I saw and knew him.

Once Chief Justice M.S. Menon remarked from the Bench, 'Mr. Justice Raman Nayar writes not with a pen; but with a pin'. It could point to his handwriting or even to the sharp edge of his brain or even to pin pint his analysis of any problem.

Chief Justice M.S. Menon was known for his 'mastery of the written and spoken word' and for thoughts condensed in crisp and concise language. Justice Raman Nayar described Justice M.S. Menon on the eve of his retirement thus

"Master of the chiseled phrase, your judgments are models of precision, of clarity, of thought and action, and above all of judicial discipline and restraint, parsimonious to a degree, never saying more than is necessary and always jealously guarding against going wrong. Except to the discerning mind, the easy almost beguiling flow of language, conceals the amount of thought, care and labour that goes into every judgment of yours, as much, more perhaps, as to what to keep out, as to what to put in. You touched nothing which you did not adorn and there is no face of the law you could not have adorned".

Justice Raman Nayar's name sticks to my mind when I recall some incidents inside and outside his court.

Caustic comments - constant stand

Mr. Justice Raman Nayar was one of the most respected Judges of our High Court and this respect continued even after his retirement. The noble Judge did not make any distinction between senior or junior lawyers and he knew only about good and bad cases. His intellectual superiority, which was universally recognised, never affected his extraordinary patience and respect for the bar. Once he asked me in court "Nambiar, we are used to make some comments, sometimes sarcastic, from the Bench. Why don't you react? Some others do". I submitted, "My Lord, I have two submissions (1) I am not paid to offend a Judge and (2) Swami Chinmayanandaji had said at a public meeting, that if somebody calls you, a son of a dog, you are angry because, you identify the dog with yourself, the dog with your father, the dog with your father's father, the dog with your father's father's father". Justice Raman Nayar said, "I understand, you may proceed".

Powerless and Powerful

In one case, arguing for the petitioner, I begin by saying "this is an unfortunate case where the petitioner is sought to be reverted from the post of Headmaster of his school, by one of his own students in the same school, presently appointed as Headmaster". Justice Raman Nayar remarked "Nambiar, do you know, that when I was a District Judge, somebody who was very much junior and who was only a Munsiff earlier had been appointed as Judge of a High Court. I did not object". (His Lordship was referring to the appointment of Shri K.V. Gopalakrishnan Nair as Judge of the Jammu and Kashmir High Court even when, he, a very senior District Judge was continuing as District Judge in the Madras State. I shot back "My Lord, then, your Lordship did not have the power to correct the mistake; today your Lordship has the power". That seemed to click and after some arguments, stay was ordered. Another Judge allowed the Writ Petition later.

Beware of Rahukalam - The Inauspicious Hour

Rahukalam was not in my professional vocabulary, till Ismail came to my office in 1961. Ismail owned a lorry plying for hire. He had a driver and a cleaner. The lorry was loaded and the cleaner sat on the load. When the vehicle was in motion, he stood up on the load. His head hit against a pole, was severed and he died instantaneously. He was young and left a widow and one child.

The widow and child claimed compensation from the owner under the Workmen's Compensation Act. They were granted compensation of Rs.6000 to be paid by the lorry owner. The owner Ismail had no worries, because his lorry was insured with the State Insurance Officer and the State was bound to pay the compensation ordered.

The Insurance Officer did not pay; revenue recovery proceedings by attaching the owner's household furniture commenced. An urgent stay was required and I 'guaranteed' him stay. In those days Justice Vaidialingam was sitting in Writ Court and almost all the Writ Petitions raising some constitutional question were practically admitted, notice to the respondents ordered and stay granted. But I did not note that it was in Rahukalam, the inauspicious period that the Writ Petition was prepared and filed. In my case, Rahukalam worked. Justice Vaidialingam fell sick and he did not attend court the next day. So my case came before Raman Nayar, J. My client not knowing English, confident of stay was sitting behind me in his silk shirt and dhoti. Justice Raman Nayar asked, "How does a writ lie". I said, "This is a writ for mandamus for directing the enforcement of a public duty by the Insurance Officer of the State." The Judge observed-, it is not a public duty, only a commercial duty for which mandamus cannot issue. He added that the amount can be paid now; and a suit instituted for recovery of the amount from the Insurance Officer." I submitted on the question whether this was commercial duty or public duty, there was no reported decision and therefore notice may be ordered. I also added that if a suit had to be filed, it would take years before the amount could be realised in execution of the decree in the suit. The Judge maintained his stand and was about to dismiss the Writ Petition, and he was about to proceed with the judgment. My repeated requests were of no avail. I sat, murmuring "that if this is the law, nobody hereafter can take his car out of his garage unless he has six thousand rupees in his pocket". At that time, I did not have a car; the Judge had one. He asked me, what I was saying. I stated, "if this be the law, nobody can take his car out the garage unless he has six thousand rupees in his pocket". After a few minutes of repetition of the same points, the Writ Petition was admitted and stay was granted. The Writ Petition never came up for final hearing because the Insurance officer, on getting notice from the High Court, paid the amount and the Writ Petition became infructuous.

Ootacamund Law

Justice Raman Nayar had a house in Ooty. I believe his sisters also owned neighbouring houses. He used to spend his vacation in Ooty. Once I went with my family to Ooty during vacation. We met at the Horticulture gardens. I was comparatively young and dared not go anywhere near any Judge, even if it was vacation. He called me and then asked me whether I go always to Ooty during vacation? I said that depends. 'If you sit in the vacation court, I go to my house and spend my vacation with my mother. Otherwise, I go to Ooty to spend a part of the vacation!

Ammalukutty, Judge's wife did not understand what I was talking. The Judge explained to his wife - "So you know, what Nambiar is stating. There are some Judges who grant stay freely; some who do not. I belong to the latter category. When I sit during vacation, he will not get stay and therefore he does not attend the vacation court and when the Judge freely granting stay sits during vacation, Nambiar makes money and then spends a portion; so he comes to Ooty"!

Easement and vacation

He was mentioning about an advocate who was just elevated to the Bench. He said that the advocate was very hardworking. In fact, in an easement case argued by the advocate, the Judge told him about the book to be referred, and the subtle distinctions between easements, license etc.

He took a week's adjournment and then argued ably and won the case. (The advocate was Bhaskaran who became Chief Justice of Kerala and Andhra Pradesh later). During the entire conversation, I did not utter one word.

Next day, my wife and I went to his house, in one of the posh areas in Ooty, to pay our respects. He then said, "Nambiar, I know, you do not know much about the law of easement, you did not utter one word yesterday when I was explaining about the law of easements. He continued; anyway I shall ask you. There is a pathway belonging to us in front of my house and leading to the other houses also. The doubt is how the right to use the pathway has to be dealt with in the sale deed in case one of the houses was to be transferred. I told him that when he was talking on easements in the horticultural garden at Ooty, I guessed that he wanted some doubts to be cleared on the subject! I did not want to discuss law during vacation and that too in Ooty! I therefore pretended ignorance. He approved of my reaction and of course, I attempted to clear his doubts. Whether he followed that or not, I do not know, I am sure the parthway continued!

It was a very broad minded gesture, when he wrote to me when I was appointed Advocate General and later as a Judge thus.

"My dear Bhaskaran Nambiar,

Congratulations and best wishes from both of us on your appointment as Advocate General. The recognition has been slow in coming. Yet, when it comes it was churlish to dwell on its tardiness. (Rather, you should take comfort in that, this is because, it is apolitical in origin). I'm sure you will take it with grace and dignity and live up to the best traditions of your high office, traditions, transcending local or temporal moves".

On my appointment as Judge of the High Court, he wrote:-

"So, at long last - about a decade delayed! But, not by any means too late, for six years should be long enough for a man of your mettle to make his mark on the Bench. And I trust the interval has enabled to see you through your years in office and retirement – continuance of A.G. must have been professionally rewarding experience. Chief Justice Potti has done quite a few good things- this is one of them".

The last line was a dig at Chief Justice Potti as both of them did not see eye to eye on several issues and aspects.

I have mentioned some of these and other aspects in the book titled 'Life's Likes and Dislikes' to be published shortly.