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.

Knowledge is Strength

(By K. Ramakumar, Advocate, High Court)

I am privileged to be called upon to talk to you. I assure you I will not misuse that and bore you too long. I said I am privileged because I am no different from you, excepting that I was born a few years earlier than most of you and have wasted several ten years in the Bar. I therefore have no right to sermonize to you or make a speech as insincere, as a Reference speech. I can, however share with you certain thoughts, which if you think will be useful to you, I shall be beholden.

Most of you may be here, because you couldn't be elsewhere, I mean no disrespect to you. Many of you are from prestigious law schools, making up your mind to choose practise of law as a career. In either case, you have to reach the top of the profession to which you proudly belong. How do you do it? One method is to secure quick success through short cuts, such as currying favour with and cultivating people in power, cringe for petty positions, crawl even if you are asked only to bend, mix with the mighty in parties and functions, putting up a servile face, etc. etc. For this you don't have to know any law at all, but only need to know who are the right persons to fix. The other, obviously arduous, is to work hard day and night, increase your equipment and skill, strengthen your knowledge, enhance your character and reputation and reach the room at the top? The choice is clearly yours.

Learning law, is like learning driving. Even if, you sit by the driver for years, you won't be able to drive. Can you ever imagine learning driving without a driving master? Likewise, do you think you can learn law without a Guru? I think not. Those who come in a Maruti car for enrolment, knocks at the doors of several seniors, finds none, starts off on his own and gets a junior in the next enrolment. Is this your idea, how a reputed lawyer, known for his learning trusted by his clients, respected by Judges is groomed? I am afraid you are entirely wrong if you think it is.

A lawyer of this category was requested, on a day to make a representation on behalf of another lawyer, by a clerk, seeking time for filing “Bt£]w” (Akshepam) The new entrant sprightly stood up and said. "I want time for filing abuses your Honour". Do you want this to happen to you? If you do not, take to learning law seriously. There is nothing under the Sun, that a lawyer shall not know. Knowledge is the biggest strength and asset of a lawyer. A lawyer who knows his subject, will not be cowered down, even by an over bearing Judge. He will not be afraid of Judges, who are in the habit of putting repeated questions at a time. He can stand up to any Judge with confidence and sure of himself, because he is adequately equipped in law and familiar with facts.

Lawyers are forbidden from advertising. But you are your own best advertising agent. People watch out lawyers arguing. That is the advantage of an open trial system, which we Speech delivered in the function of 'Lawyer to Lawyer' organised by the Kerala High Court Advocates' Association in June, 2003.have inherited from the British, and the only thing Indian Judges have not been able to tinker with till now. That ensures transparency. It calls the bluff of the sartorial senior, not the senior by quality, who receives only derision and not respect from the watchful litigant. The brilliant and the best among the lawyers glitter in the open, not basking in the sun-shine of favour-dispensers.

Now tell me to which category do you want to belong? To wait in the long and laggard queue of the lawyer who depends on him alone, his equipment, knowledge, character etc to reach the room at the top, or the instant successes, through favour seeking, lobbying, manipulation etc?

I have to necessarily warn you that the profession is losing its past glory. Lawyers are also suspected to be associated with the twenty per cent, a former Chief Justice regretfully said to exist among the Judges. I have to say with sorrow, that resolutions tabled by lawyers' associations are passed on to Judges, instantaneously by those in that category. Why blame others, when we are ourselves also at fault? Expediency is fast overtaking excellence. In the High Court, we strive for excellence, at all levels. We are sadly lacking that. A Full Bench, mind you, was about to be dissolved, as none of the lawyers was ready even with bare facts, not to speak of law. With what grace can we, criticise the Judges who are impatient with lawyers who do not prepare themselves? That, thorough lawyer, who studies his briefs well, up to date with all decisions, show respect and not fear to the court, dignified in behaviour, commands and not demands respect, trusted by his clients - That species is fast diminishing and vanishing. It is we and we alone who are responsible for this abysmal fall.

In the hands of the young lawyer, lie the future of the glorious profession to which, Gandhi, Jawaharlal, Sardar Patel, Rajendra Prasad, Bulabai Desai, Ashutosh Mukerji, Setal wad, Palkhivala, and a host of eminent other Indians belonged. No Judge can stop you from becoming equipped, up to date, and really learned. Therefore, I repeat again- Knowledge is the biggest strength of a lawyer - And his success too.

Thank you all.

_________________________________________________________________

Speech delivered in the function of ‘Lawyer to Lawyer’ organized by the Kerala High Court Advocates’ Association in June, 2003.

Make Love to Books

(By K. Ramakumar, Advocate, High Court)

Years back, when I was devilling for my late lamented Senior, he once beckoned me and required me to go to the High Court Library, find out and read 'Smith's leading cases'. Ever heard of such a book? Not likely. Nor did I then. Smith's leading cases, is a beautiful collection of cases like Rylands v. Fletcher, Donnough v. Stevenson, Ashby v. White, etc. etc. which should introduce every new entrant to the Bar to the nuances of English jurisprudence. When I haltingly and hesitantly went to the High Court Librarian for the book, he was eyeing me with curiosity and politely told me that the book was with one of the judges who later adorned the Bench of the Supreme Court and brought pride to the State as an eminent jurist of the country. To him, books provided far more sumptuous feasts, than food itself. You have guessed his name correctly. It was the late Mr. Justice K.K. Mathew. To my good luck, the venerable judge somehow had come to know that I had asked for the book which he may have read several times.

Since then I certainly enjoyed a distinct advantage appearing in his court. He was such a considerate and compassionate Judge particularly to the junior section of the Bar. All that he insisted was that one should study his cases well. The story of his success? Reading, reading and more reading.

So was another great Keralite Judge who fortunately is still living. Amidst his lucrative and large practice he found time to read everything that came by him, from Link to Life. The English language is to him like clay in a potter's hand. His mastery of that alien language is astounding and unparalleled. I had the good fortune of appearing along with him, against him and before him, both in the. High Court and in the Supreme Court. A great Judge with varied interests and vast capacities in different fields, there is hardly anyone to match his reading habit. He reads almost all books touching on different topics. From Allen Tofler to Aurthur Haily, I don't have to tell you whom I mean. The secret of his success? Again, reading, reading and reading.

(I know it is considered indecent to make such personal reference, but it is unavoidable to drive home the point.)

To those who have chosen the legal profession as a career, hard work is unavoidable. From time immemorial the profession of law is considered noble not because people who come to the top in it, make lots of money but, for their profound knowledge of law, integrity, character, hardwork and honesty. Not a single notable lawyer of repute in the whole country has tasted success without hard and sustained work. That trust and confidence belong to the Lawyer who builds up a practice on the edifice of his own equipment and hardwork. Seniority should be commanded and not demanded. True, some judges are prone to discourage deep and laborious learning, especially these days. Also true, there is a vast difference between old time Judges, and the newer ones with an eye on statistics than on sound legal principles. But then, lawyers also have changed likewise. This shouldn't dishearten a young entrant to the Bar, whose toils and travails will not but be rewarded one day.

The legal profession is fast becoming a trade or business and the tricks associated with them, played by some in it as a short-cut to instant success erode its image identify them, expose them and ostracise them. At least, do not emulate them at all. The room at the top belongs to you and if you reach there, try restore back the glory of a profession to which great nation builders belonged. Make Love to Books, Read, Read and succeed.

Bifurcation of the Supreme Court of India

(By Justice K.T. Thomas, Former Judge of the Supreme Court)

There is news that a Parliamentary Standing Committee on Home Affairs of members of the Parliament criticized the Supreme Court for rejecting the demand to set up regional Benches of the Supreme Court of India. The Standing Committee decided to request the Chief Justice of India (CJI) to reconsider its earlier decision. It is heartening to note that the Standing Committee was apprised of the fact that a full Court of all Judges of the Supreme Court, after due deliberations, unanimously reiterated its earlier stand that such benches would impair the unity and integrity of the country and found no justification in deviating from the earlier stand.

I was one of the Judges of the Supreme Court when all the Judges on two different occasions considered the matter. On both occasions, the Judges, after detailed discussion, unanimously decided against bifurcating the Supreme Court of India. On both such occasions, I could not support the plea that a Bench of the Supreme Court should not be set up in South India despite my own home is in the southern most State of India and the present seat of the Supreme Court is in one of the northern most part of India. On both occasions other Judges hailing from southern States also did not favour setting up of benches of Supreme Court at other places. We were told that this subject was considered on earlier occasions also by the judges of the Supreme Court and on all such occasions, they resolved unanimously that bifurcating Supreme Court of India would be detrimental to the nation.

The Committee of Members of Parliament headed by Pranab Mukherji is reported to have disapproved the reasoning of the judges that setting up of the regional benches would impair the unity and integrity of the court. The only reason advanced in favour of such benches is that it would provide "people of the far-flung areas to get accesses to the apex court." No statesman shall decide on such a vital issue as bifurcation of the nation's apex judicial institution merely on the ground of a solitary advantage. There is hardly an issue for which there could at least be one advantage. Statesmanship requires that all the pros and cons, all the merits and demerits, particularly of a' vital issue should be weighed in the balance before a decision is taken to act when the demerits of the issue outweighs the merit. A statesman should not lean in favour of the larger demerits just for achieving the lesser merits.

Art.130 of the Constitution of India declared that the seat of the Supreme Court shall be Delhi, and by way of empowering the President to have its seats elsewhere in the country the alternative is also provided in the Article. It reads: "The Supreme Court shall sit in Delhi or in such other place or places, as the CJI may, with the approval of the President, from time to time appoint". Thus it is not necessary that the seat of the Supreme Court shall be at Delhi. It could be at Hyderabad or Kolkotta or Mumbai or Chennai or Bangalore or even Cochin or any other place. In the absence of such a provision, the Supreme Court could have become dysfunctional in an emergency situation when it could not operate at Delhi due to the foreseen or unforeseen eventualities. I need not describe such situations as anyone can guess it. During our discussion, I said that I did not mind the Supreme Court being set up at any place in the South or any centrally placed location, but I am unable to conceive a Supreme Court of India scattered in different parts of the country.

The Constitution provides singular office for a number of vital functions of the nation. Art.52 stipulates that there shall be one President of India, Art.63 allows only one Vice President of India, and Art.74 envisages only one Prime Minister for the whole Nation. Art.124 declares that there shall be only one CJI. Art.148 contemplates only one Comptroller and Auditor General of India. Art.76 enjoins that there shall be only one Attorney General for India. (There was a proposal to appoint Additional Attorney Generals, but the Central Government accepted the legal opinion tendered by M.C. Setalwad, India's first Attorney General and a great jurist, that the said constitutional post cannot be and shall not be multiplied.).

Art.141 mandates that the law declared by the Supreme Court shall be binding on all courts within the territory of India. As 142 conferred special power on the Supreme Court to make such order as is necessary for doing complete justice in any cause pending before it. Art.141 directs that all civil and judicial authorities shall act in aid of the Supreme Court.

The above survey portrays how the Constitution makers conceived of the singular edifice of the institution of the Supreme Court of India. The Bar of the Supreme Court grew and developed and has now been crystallized into one homogenous unit. There is only one Supreme Court Advocates' Association and only one Supreme Court Advocates' on-Record Association. Thus in the same manner as the Indian Parliament, the Supreme Court of India has acquired the majesty retaining the homogeneity of the Apex Court reflecting the uniqueness of the unity of India. All the Judges of the Supreme Court meet together every morning, they exchange their views together (except matters pending judicial decisions) and thus they endeavour to maintain the special uniqueness of the institution.

What might happen if the Supreme Court has other benches, at least in all the four zones of India should be a matter of serious concern for the people of India. Even looking into the recent past, different benches of the Supreme Court of Pakistan resulted in utter confusion and chaos, particularly on an issue concerning a former Prime Minister, Navas Sheriff, one bench at one place overruling the orders of another bench at another place and competing with each other in an ugly zeal to overshow which bench is mightier than the other. History should be the lesson for us also.

The Supreme Court of India was first established soon after the integration of different States into the Union of India followed by the great event of making the Constitution of India. That was a time when different States could have claimed that benches of the Supreme Court should be established at least at zonal levels. That was a time when reaching Delhi was an uphill task for a citizen from far-flung zones. Communication facilities were miserably far less. Fifty years elapsed during which Supreme Court of India functioned very efficiently while retaining its seat at th'3 national capital itself. During those fifty years accessibility to Delhi became far quicker and more efficacious. Means of communication with the Supreme Court lawyers became much easier and cheaper. Information technology helped in fostering closer contacts between Supreme Court lawyers and their counter parts at far-flung areas much more frequently. Larger number of lawyers from different States became Supreme Court lawyers. Why at such an improved situation the politicians apply pressure to fracture India's majestic acme judicial institution.

The concept of High Court was that it is the highest court of the land. Constitution has conferred widest powers on the High Courts, even greater powers than the Supreme Court itself, in the matter of entertaining the grievances of the litigants. Art.226 was incorporated with that objective. Art.136 requires the Supreme Court to grant special leave if a case was found fit enough to be entertained by the Supreme Court. It is a known fact that out of hundred special leave petitions filed in the Supreme Court, leave would be granted only in a very small percentage of cases. Thus the High Courts were envisaged and shaped by the Constitution makers to hear and deal with and finally decide all the grievances of the citizens. Supreme Court was shaped mainly for uniforming the law laid down by different High Courts at different times. The fathers of the Constitution did not intend to make the Supreme Court a court of appeal and that was why a filter of special leave was fitted at the gate providing many tiny gauzes in the judicial sieve. It was with all the above reasoning that the full court of all the judges of the Supreme Court, time and again disfavoured to bifurcate the Supreme Court. The later decisions were taken by the Supreme Court equipped with the advantage of the views of Judges drawn from all the zones of India. They had the added advantage of not being influenced by the thought of appeasing the voters.

In my opinion, the decision which the politicians made for requesting the Supreme Court to reconsider the repeatedly reiterated stand that the Apex Court shall not be fractured needs reconsideration.