Public Duty & Public Law Rights: A Study in the Light of Recent

Decisions Under Art.226 of Constitution of India

(By P. Chandrasekhar, Advocate, Ernakulam)

Is Art.226 of the Constitution of India available to enforce private law rights? Administrative law in India has been shaped in the English mould. Power to issue writ or any order or direction for 'any other purpose' has been held to be included in Art.226 'with a view apparently to place all the High Courts in this country in some what the same position as the court of the King's Bench in England' (AIR 1953 SC 210).

Private law is that part of a legal system which is part of the common law that involves relationships between individuals such as the law of contract or torts. It is to be distinguished from public law which deals with relationships between individuals, business entities and non-profit organizations with the State including regulatory statutes, penal law and other law that effects the public order. English law reckons 'ordinary private law remedies' such as damages, injunction and declaration and 'public law remedies' in the form of certiorari and mandamus, collectively known as the prerogative remedies. Claims to remedies in tort are based on the infringement of private law rights and are in principle ineligible for judicial review, even though brought against public authorities. (Administrative Law: 8th Edition, H.W.R. Wade & C.F. Forsyth, page 656). Contractual and commercial obligations are enforceable only by ordinary action and not by judicial review. House of Lords dismissed the application for certiorari of an employee of British Broadcasting Corporation to quash her dismissal since the ordinary contractual obligations of master and servant had never been within the scope of the prerogative remedies. (R V. British Broadcasting Corporation ex. p. Lavelle (1983) (1) WLR23)). In R. v. Lord Chancellor's Department Exp. Nangle ((1992) 1 All. E.R. 897) application of a civil servant for quashing disciplinary action was dismissed since his proper course was to sue for breach of contract. In R. East Berkshire Health Authority Exp. Walsh (1985 QB 152) the Appeal Court dismissed application of a male nurse against a health authority to quash the decision dismissing him from service. It was held that whether a dismissal from employment by a public authority was subject to public law remedies depended on whether there were special statutory restrictions on dismissal which underpinned the employee's position and not on the fact of employment by a public authority per se or the employee's seniority or the interest of the public in the functioning of the authority.

In Roy v. Kensington and Chelsea and Westminster Family Practitioner Committee ([1992] 1 All. ER 705) the House of Lords was concerned with decision of the Kensington and Chelsea and Estminster Family Practitioner Committee reducing the basic practice allowance of Dr. Premananda Roy, a medical practitioner. The House of Lords held that Dr. Roy had no right to be paid a basic practice allowance until the committee had carried out their public duty to decide as to whether or not to include Dr. Roy's name on the medical list. The public law decision of the F.P.C. to include Dr. Roy's name on the medical list brought into existence private law rights and duties. True demarcation line between public and private law involves focusing on whether the decision-making body took the decision challenged in the course of its public functions. It is the nature of the function which is being performed which is all important.

In R V. Panel on Take-overs and Mergers exparte Datafin ([1987] 2 WLR 699) Sir John Donaldson MR said that 'the only essential elements are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction'. In the Queen on the Application of Hopley v. Liverpool Health Authority & Ors. (unreported) (30 July 2002) Justice Pitchford helpfully set out three things that had to be identified when considering whether a public body with statutory powers was exercising a public function amenable to judicial review or a private function. They are i) Whether the defendant was a public body exercising statutory powers ii) Whether the function being performed in the exercise of those powers was a public or a private one; and iiii) Whether the defendant was performing a public duty owed to the claimant in the particular circumstances under consideration. In Queen on the Application of Tucker v. Director General of the National Crime Squad (R V. British Broadcasting Corporation ex p Lavelle (1983) (1) WLR 23)). Lord Justice Scot Baker of Court of Appeal dismissed the application of a Detective Inspector in the Derbyshire Constabulary for certiorari to quash the decision terminating his services stating that the decision impugned in the case did not have sufficient element of public law to be subjected to judicial review and that it was of purely domestic nature.

A body performing public duty is, of course, amenable to writ jurisdiction but all decisions of that body are not subject to judicially review. Only decisions which has public element in it are judicially reviewable under writ jurisdiction. Early decisions of the Supreme Court took notice of the fact that the makers of Indian Constitution provided and conferred on the High Court powers to issue directions, orders or writs primarily to enforce fundamental rights and 'for any other purpose' was included with a view to place 'all the High Courts in this country in some what the same position as the Court of King's Bench in England (AIR 1953 SC 210).

The Court could make an order or issue a writ in all appropriate cases and in appropriate manner so long as it keeps to the broad and fundamental principles regulating the exercise of jurisdiction in the mater of granting such writs in English law (AIR 1954 SC 440). In Lekhraj v. Dy. Custodian, Bombay (AIR 1966 SC 334), the Supreme Court said that the 'chief function of the writ is to compel the performance of public duties' and writ of mandamus is issued 'only in a case where there is a statutory duty conferred on the officer concerned'. In Banchhanidhi Rath v. The State of Orissa (AIR 1968 SC 718) it was held that 'if a right is claimed in terms of a contract such a right cannot be enforced in a Writ Petition'. In Radhakrishna Agarwal v. State of Bihar (AIR 1977 SC 1496), the Supreme Court did not consider the proposition that every case of a breach of contract by the State or its agents or its officers would call for interference under Art. 226 to be a sound one. In Rohtas Industries Ltd. v. Rohtas Industries Staff Union (AIR 1976 SC 425), the Supreme Court held that 'the jurisprudence of judicial review in this branch is substantially common for Indian and Anglo-American systems'. In L.I.C. v. Escorts Lta?.((1986 1 SCC 264) the Supreme Court said that 'actions of the State or instrumentality of the State which do not properly belong to the field of public law but belong to the field of private law are not liable to be subjected to judicial review’.

In a revolutionary departure from its earlier traditional view the Supreme Court in Andi Mukta S.M. V.S.S.J.M.S. Trust v. V.R. Rudani ((1989) 2 SCC 691), held that the words "any other authority" mentioned in Art. 226 are not to be confined to statutory authorities and instrumentalities of the State and that they cover any other person or body performing public duty. It was also held that mandamus could not be denied on the ground that the duty to be enforced is not imposed by the statute. The Court however emphasized that if the rights are purely of a private character no mandamus could issue. Andi Mukta's case was followed by the Supreme Court in K. Krishnamacharyulu v. Sri. Venkateswara Hindu College of Engineering ((1997) 3 SCC 571), wherein it was held that private unaided educational institutions cater to educational need of the community and therefore there is a public element. In VST Industries v. VST Industries Workers' Union ((2001) 1 SCC 298), the Supreme Court held that manufacture and sale of cigarettes did not involve any public function and that in what could be considered a part of the service conditions of service of a workman no breach of public duty is involved.

In Air India Statutory Corporation v. United Labour Union ((1997) 9 SCC 377), the Supreme Court held that 'for a public law remedy enforceable under Art. 226 of the Constitution, the action of the authority should fall in the realm of public law'. In Steel Authority of India Ltd. v. National Union of Waterfront Workers ((2001) 7 SCC page 1 at page 23) a constitution bench of the Supreme Court, observed that the 'divide between the public law and private law is material in regard to the remedies which could be availed of when enforcing the rights, public or private'.

In U.P. State Co-operative Land Development Bank Ltd. v. Chandra Bhan Dubey ((1999) 1 SCC 741), the Supreme Court said that 'by various decisions the Supreme Court has held with varying and divergent view that jurisdiction under Art. 226 could be invoked only when a body or authority, the decision of which was complained of, was exercising its power in discharge of public duty and that writ is a public law remedy' Federal Bank v. Sagar Thomas (2003 (3) KLT 876 (SC)) arose from a petition of a Branch Manager of a private Scheduled Bank challenging the decision of his employer dismissing him from service. High Court held that Federal Bank Ltd. is performing public duty and as such it came under the definition of 'other authority' within the meaning of Art. 12 of the Constitution of India'. Supreme Court set aside the judgment of the High Court and held that private bank like Federal Bank did not discharge public duty and the statutory control by Reserve Bank of India do not confer any such status upon the bank. This legal position has been reiterated by the Supreme Court.

An overall survey of English and Indian decisions would show that there is no remarkable difference between the law as it applied in England and the law applied in India with regard to availability of public law remedy in the form of prerogative writs. Except in the case of a State within the meaning of Art.12 of Constitution of India and where infringement of any right guaranteed under Part III of the Constitution is complained of, the twin test of the public duty discharged by the authority and presence of public law right which is sought to be enforced is necessary to invoke writ jurisdiction.

There appears to be, however, some confusion with regard to meaning and content of the word 'authority' used in Art.12 and the same word used in Art.226 of the Constitution of India. An 'authority' which is amenable to writ jurisdiction under Art. 226 need not be an "authority" within the meaning of that word used in Art.12. Art.12 identifies an 'authority' as State for the purpose of Part III of Constitution of India. Part III contains the fundamental rights. A State within the meaning of Art.12 is amenable to writ jurisdiction under Art.32 and Art.256 of Constitution of India when infringement of fundamental right is involved. Violation of constitutional right injects necessary public element to a decision or action giving rise to public law remedy. Breach of contract on the part of State, therefore, is subject to writ jurisdiction when it involves violation of fundamental right guaranteed under the Constitution of India. State, under Art.12, has no relevant except when fundamental right is sought to be enforced. When rights other than fundamental rights are sought to be enforced it is not necessary to see whether the authority against whom the writ is asked for is an 'authority' within the meaning of Art.12. While every authority discharging a public function is not a State within the meaning of Art.12, Art.226 which has been couched in a very wide terms, takes in its ambit every 'authority' discharging a public duty. The High Court while rendering Federal Bank's case (2003 (3) KLT 876 (SC)) appears to have lost sight of this distinction. As a result the High Court, in that case went on to hold that Federal Bank is discharging a public duty and therefore is a State within the meaning of Art.12.

Two recent decisions are glaring example for the error into which High Courts are likely to be betrayed in the absence of well laid down criteria for determining 'public duty' and 'public law right'. In Suter Paul v. Sobhana English Medium High School (2003 (3) KLT 1019) the Division Bench has held that 'having considered the pervasive control of the educational authorities over the recognized unaided institutions in the State, have no hesitation to hold that such institutions are amenable to the jurisdiction of the High Court under Art. 226 of the Constitution of India. The relationship between the teachers of private schools and their employers, namely, the educational institutions in which they work, is contractual in nature. There was no statutory under pinning in the employment giving rise to any public law right. It is one thing to say that an unaided private educational institution, while imparting education, which is essentially a governmental function, is discharging public duty, and it is altogether another thing to say that teachers of an aided private educational institution by virtue of their employment has a public law right created in their favour. The service conditions of teachers and non teaching staff of recognized unaided schools in Kerala are covered by Chapter XIVA A of Kerala Education Rules. No public duty element can be found in the decision of a private school towards a teacher or a non-teaching staff of an unaided private recognized school arises unless any of the provisions of Chapter XIV AA of Kerala Education Rules is violated by the school. Though an unaided private recognized school, imparting education, is discharging public duty as held by the Division Bench in Annamma v. State of Kerala (1994 (1) KLT 309), writ to enforce contractual right arising from a contract of personal service is not maintainable.

Yet another decision in which the court failed to consider the distinction between the 'public duty' and 'public law right' is Jose Kuttiyani v. Kerala High Court Advocates' Association (2004 (1) KLT 35). The Association is an unregistered collective body of Advocates practicing in High Court of Kerala. The relation between the Association and its members is contractual and not statutory. The writ petition filed by Shri Kuttiyani, was in challenge of a decision of the Association suspending him from the primary membership of the Association. The decision did not involve any public element. By suspending Shri Kuttiyani, the Association did not violate any statutory provision and the writ was not filed alleging infringement of any statutory duty on the part of the Association. The fact that an Advocate had to be a member of an Advocate's Association to become member of Advocates' Welfare Fund and that the Association has a statutory role in forwarding the application of an Advocate for membership in the Advocates' Welfare Fund did not inject any public law element into the decision of the Association to suspend Shri Kuttiyani. In short, the Court, in Kuttiyani's case, was enforcing a private law right of Shri Kuttiyani by issuing a writ, which is a public law remedy.

It is submitted that it is time for closer scrutiny into the nature and content of 'public duty' and 'public law rights', which are necessary ingredients for invoking writ jurisdiction under Art.226 of Constitution of India and to lay down definite criteria, at least broadly, for future guidance. Had the Supreme Court held in no uncertain terms that the difference between 'public law rights' and 'private law rights' is not relevant in deciding whether decision of a person or authority is amenable to writ jurisdiction under Art.226 of Constitution of India, it would not have been necessary for High Courts to labour on the question of existence of public law element in a decision under challenge. But till such time, the necessity to demarcate the dividing line between 'public law right' and 'private law right' needs no emphasis.

TEACHERS DESERVE GRATUITY

Gratuity Act to be amended urgently to plug the loop holes

(By Advocate Gaurav Kumar. New Delhi)

The Supreme Court judgment dated 13'" January, 2004 in Ahmedabad Primary Teachers' Association v. Administrative Officer & Ors. (2004 (1) KLT470 (SC)=2004 LLR 97 (SC)) holding that a teacher cannot be classified as 'employee' under the Act since a trained teacher is not described in industrial field or service as a skilled employee. This ruling has shocked the teaching community and surprised others. The Court has based its judgment on a reading of the Payment of Gratuity Act, 1972 as it stands now that such adjectives, generally, is used for an employee doing manual ortechnical work. Similarly, the words "semi-skilled and unskilled" are not understood in educational establishments as describing the nature of job of untrained . teachers. The Bench added that even if teachers do some administrative work occasionally as part of their duty, they don't carry out the job in managerial or administrative capacity.

The Bench, however, observed that there are already,           Neither celebration of Teachers Day annually,

in several States, separate Statutes, Rules and                         nor any number of accolades, awards or

Regulations granting gratuity benefits to teachers in             acclamation of the teachers, that they are

educational institutions which are 'more or less'                    missionaries in the noble cause of education,

beneficial than the gratuity benefit provided under                  would take place of bread and butter for them.

the Act. But this will also not solve the problem. For             Howsoever high sounding showers of praise for

instance, a reference is made to S.10 of the Delhi                 their essential services to the society, after

School Education Act, 1973 inter alia providing that              retirement they need gratuity more than the

the scales of pay and allowances, medical facilities              certificates and the wordy-homage to their work

, pension, gratuity, provident fund and other prescribed          which cannot solve their post-retirement

benefits of the employees* of a recognised private school      problems. Therefore, what they need first is the

shall not be less than those of the employees of the             gratuity to buy some food for their survival.

corresponding status in school run by the appropriate                                 Hon'ble Justice R.J. Kochar

authority......                                                                                                     Bombay High Court

The words 'corresponding status' refer e.g. appropriate authority to those teachers who are employed in the Government schools. Their gratuity under the captions 'Service Gratuity' and 'Retirement/Death Gratuity' is regulated by Rr.49 and 50 of CCS (Pension) Rules, 1972.

The above rules No.49 and 50 are extracted from the Central Civil Services Pension Rules, 1972 and its Cl.(d) categorically excludes the persons who are entitled to a Contributory Provident Fund. Since the teachers are also covered by the Employees' Provident Funds & Miscellaneous Provisions Act, 1952 which was extended upon the Schools w.e.f. 1982, this may lead to further complications. While applying the strict principles of interpretation, the teachers as covered under the Employees' Provident Funds & Miscellaneous Provisions Act, 1952 cannot claim gratuity as of right even on their retirement what to speak on resignation as provided under the Payment of Gratuity Act.

In view of the above, it becomes imperative that the Law Ministry must get down to the job of drafting an amendment that the teachers should be covered by the Act. No doubt, "teaching" is a noble profession. But when such a huge population requires education, it should be considered as a profession that needs high quality. Compared to other professions, teachers in India are underpaid specifically at the school level. Education is a progressive discovery of ignorance and when you educate a woman, the whole family is uplifted. Thus, to encourage imparting of gratuity, education, on which progress of a nation rests, there is an urgent need to amend the Payment of Gratuity Act, to accommodate teachers for payment of gratuity. On the conclusion of the judgment, the Bench in the judgment that "it is for legislature to take cognizance of the situation of such teachers in various establishments where gratuity benefits are not available for them in this regard", the Union Minister for HRD being himself an educationist had immediately reacted in stating that "in my opinion the teachers should be allowed to have gratuity".

Reference is made to a judgment of the Bombay High Court in General Education Academy, Chemburv. Smt. Sudha Vasudeo Desai & Ors. (2001 LLR 627 (Bom. HC)) wherein Justice R.J. Kochar has observed "neither celebration of Teachers Day annually, nor any number of accolades, awards or acclamation of the teachers, that they are missionaries in the noble cause of education, would take place of bread and butter for them. The bestowed good words do not buy even 10 grams of sugar needed for the milk for their chi1dren. Howsoever high sounding showers of praise for their essential services to the society, after retirement they need gratuity more than the certificates and the wordy-homage to their work which cannot solve their post-retirement problems. Therefore, what they need first is the gratuity to buy some food for their survival. I do not know whether a man cannot live with bread alone but I certainly know that a man cannot live without bread. A hungry teacher can never fulfil the desire for good education. Even a missionary need fire in his belly to keep his spirit high. If I were to interpret the term 'employee' to exclude the teachers there from to deny them the bread for their evening of life, I would be wholly failing to the Constitution and also betraying the philosophy so well expounded by the Supreme Court in several cases while interpreting the endeavour of the State to materialize the Directive Principles enshrined in the Constitution".

While reacting upon the judgment of the Apex Court, the Secretary in the department of Elementary Education and Literacy, Mr. S.C. Tripathi said, "The Supreme Court has ruled as per its discretion, but the Act may need to be amended as teachers come in the category of employees". Talking of the age-old concept of gurus, he said, "When village committees engaged a person to teach children, he was highly esteemed and had a certain stature. But things have changed now. Today, teachers are like any other employee", he said

It would not be fair to blame the court for denying gratuity to the teachers since the court has only interpreted the law as it is framed. The onus for rectifying this situation lies with our lawmakers. What they need to do is to bring the letter of the law in line with its spirit. Now that the Apex Court has discovered the infirmity in law concerning teachers, it is possible that there may be other categories of employees also who may find themselves in eligible for the benefit on a strict interpretation of law. The solution lies in adopting a wider definition of the term 'employee' as, for instance, in the Provident Fund Act, 1952 but it should not take too much time since there is no likelihood of any opposition. Whether the ministry and our lawmakers will design to find time to do it, is another matter. Hopefully, since the HRD Minister himself being an educationist is seized of the matter, we should see some progress soon. Gratuity is a major social security measure available to employees at the end of their service and it provides them a safety net in times when they are unable to work. There is thus no reason to deny an important social security benefit.

_______________________________________________________________________

* Under S.2(1) of the Delhi School Education Act, "employee" means a teacher and includes every other employee working a in recognized school.

PROTECT PREGNANT WOMAN

(By S.A. Karim, Advocate, Trivandrum)

In many matters law leans to fair sex. In civil decree a woman is not send to prison. Hindu Marriage Act provides alimony to wife for maintenance and case expense. Guardian and Wards Act prefers mother for the custody of minor children. Similar is the case with Muslim personal law - Sharia, and other personal laws. Criminal Procedure Code, makes bail easier to woman. It further enables woman to claim maintenance on prima facie evidence. The same law prevents woman from going to the police station for questioning in criminal cases. At the same time law directs the police to go to the woman's place and record statements. Vanitha police station is a recent development and an exception. These are some of the privileges a woman enjoy in day-to-day life. This is not available to a man. It points the society's concern to the fair sex and their safety and security.

In recent times pregnant woman becomes accused, ends in conviction and sentenced to prison in large numbers. Conception and birth is an usual affair of every woman. During pregnancy one has to follow healthy meal plan, moderate and regular physical exercise, maintain healthy weight, so on and so forth. Indeed, medical attention is another unavoidable aspect. Apart from all these, presence and attention of dear and near ones is a must. If such protection lacks, it affects the mother as well as the foetus in the womb. Medical science says foetus is a living body that develops to a baby. Foetus is an unborn child and the law considers unborn child is another person. Despite advancement of medical science, pre-natal and post-natal care, delivery is hard one.

When a pregnant woman who needs medical protection, parental care, and other basic needs, happens to be convicted and sentenced to prison, the court convicts and sentence not only the accused but also an innocent unborn child. In my view a pregnant woman, if found guilty, shall not be sentenced to prison till one delivers and recovers from health. A woman in service gets maternity leave and period to recover one's health. Like wise a law needs to be enacted to suspend the sentence to prison of a pregnant woman till she delivers and recovers health.

SERVICE OF PROCESS AT WHOSE COST?

(By T.M. Rajasekharan, Advocate, Calicut)

A Division Bench of the Kerala High Court in Jayalaxmi v. Avara (2003 (2) KLT 901), following the Supreme Courts' ruling in Malkiat Singh v. Jaginder Singh (AIR 1998 SC 258), condoned the delay of 335 days in filing Petition to set aside the ex-parte decree by accepting the plea that the Petitioner was not informed of the progress (or to be more appropriate, halt of the progress) of her case. The High Court further held that in all cases where the counsel reports "no instruction", the court shall issue notice to the parties. Much time did not elapse when a Single Bench of the Kerala High Court held that if the parties could not be served with notice in criminal matters before the High Court, notice should be sent to the counsel who holds Vakalath in the Subordinate Court (2003 (3) KLT 454).

Two interesting and important questions arise: (1) Should the State bear the process expenses in a civil litigation and if the answer is in the affirmative, is there a fund allocated for the same? and (2) Can a lawyer be burdened with the responsibilities of searching for his hibernating client?

The law does not empower the civil courts to meet the expenditure for service of process. It is the duty of the litigant who approaches the civil courts to bear such expenses, by paying the requisite process fee. Experience shows that litigants are made to spend much more than what they pay as process fee to get the notice "served" properly and in time for reasons that are obvious. The petitioning litigant cannot be asked to pay the process fee or to meet the service charges after the other side appears before the court, just for the reason that the lawyer on the opposite side reports "no instruction". Now it looks that this judge made law forces the court to send notices to the party at its own expense. What if such notices can not be served even after repeated summons? Should the court proceed with substituted service at huge cost? The situation can be imagined if there are innumerable parties to be served in some cases. Sadly, that our subordinate courts are not properly equipped to meet such contingencies has escaped consideration by the High Court.

The legislature, before introducing any bill for enactment, gets clearance from the Ministry of Finance. Can there be a non-consideration of financial and other burdens when the judges make laws, procedures etc.?

What must be realised is that it is only in pressing and unavoidable circumstances that a lawyer reports "no instruction". Normally, no Advocate would like to abandon a brief or a client. It is only when the client is lethargic inspite of warning that a lawyer is forced to withdraw from such cases. Many a time, there would not be time to issue registered notices to all erring clients. That time factor depends upon the circumstances of each case. It should not be forgotten that there are Rip Van Winkles among clients. At times they are totally callous and grossly irresponsible towards their own rights. The golden rule that "the law does not help the one who does not help himself is to be remembered. An Advocate is not supposed to go in search of such clients, more so these days when the courts as a rule are reluctant to grant adjournments for whatever reasons they be. Advocates cannot go on with their work without active assistance, co-operation and help from the clients, leave alone the financial side of the matter.

The decision of the Supreme Court in 'Malkiat Singh & Ors. v. Joginder Singh & Ors.', and the earlier one in 'Tanil Ram Issardas Sedarjaini v. Ramachandra Issardas Sadaranjini' (1992 AIR SCWR 3445) were under totally different situations. In the earlier decision, the counsel reported 'no instruction' after the examination and cross examination of two witnesses for the plaintiff were completed. Admittedly his client was no where in the Court and probably the Advocate could not proceed with the case in his absence.   In the latter case also "no instruction" was reported when the parties were not in the court. But on both the occasions the respective clients approached the court to get the ex-parte order set-aside without delay and no complaints were made against their counsel. The situation is vastly different in Jayalaxmi v. Avara, where the Petitioner suddenly reapproaches the court after nearly one year of the decision in her case when the execution proceedings shook her up. Strange that nine years after a surgical operation she could visit the doctor "atleast twice a month", but did not call on her Advocate's next door even once during one of such visits. Her concern for health is understandable but lack of it for legal right in non-exclusable. With great respect I submit that the decision of the Division Bench would act as an encouragement to those litigants who neglect their cases and later on blame the counsel despite their own latches and.omissions. Such litigants are curses of the judicial system and they do great harm to the legal profession.

ART OF ADVOCACY

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

*Special Address delivered by Senior Advocate T.P. Kelu Nambiar, on 22.11.2003, at the Valedictory Session of the State Level Competition on Art of Ad vocacy for Junior Lawyers, held at the National Institute for Advanced Legal Studies (NIALS), Cochin.

Years ago, when I was a fledgling lawyer, I saw the great Judge Sri. Justice M.S. Menon, (who later became Chief Justice of the High Court of Kerala), pouncing upon Advocate Sri. V.P. Gopalan Nambiar, (my erstwhile Law Teacher), who later became Judge and Chief Justice of the High Court of Kerala, observing:

"Is this the way to argue on appeal?". Pat came the answer: "My Lord, there are several methods of arguing a case; and I am adopting one such method". The learned Judge said: "Yes. you may proceed". The arguments were continued; and Sri Nambiar won the case.

This was an experience to me. I learned a lesson from the incident. Sri. Nambiar's art of advocacy was flawless. He handled his profession with poise, working hard and living it up.

The legal profession is a great, glorious, noble profession. We have to show positive commitment tothe profession. We should not forget the profession's excellences.

Both hard work and neat arguments are essential, to enjoy professional eminence in peace. When two things are essential, they are not alternatives, just like comparisons being possible only when there are options available. Achieve good results, without being over-anxious to 'show-case' your achievements. Advocacy is a difficult terrain. Therefore ride carefully. You cannot win a case by inspiration, but only by preparation. We should have total concentration on the brief. Be a Karmayogi lawyer: good results will follow. The legal tiger certainly distinguishes between honest rider and dishonest rider, as the legal profession consists of the good, the bad and the ugly.

We should not forget the profession's excellences. The Swedish discoverer of dynamite, Alfred Bernhard Nobel, or the Nobel Foundation, did not institute a prize for advocacy. (An Iranian lawyer won the Nobel Prize 2003, not for Advocacy, but for Peace). Let a prize be instituted for advocacy in the name of Hortensius, who, according to Cicero, was the greatest of advocates. We should strive to maintain the culture of professional responsibility. Let us go an extra mile to improve the situation.

A case has to be argued with precision, without indulging in unlimited arguments. A cour-house is not the theatre of the absurd. Lord Reid said, in Rondel's case, that far more cases have been lost by going on too long than by stopping too soon. Lord Templeman considered torrents of words by advocates, oppressive. Oral marathon by loquacious lawyers goes unappreciated. Do not frontload your case with untenable contentions. Be respectful, for respect unlimited is expected. But, be bold; it is said, lawyers are heartless, spineless and gutless, and their heads and rear ends are interchangeable. A lawyer is no bezonian. A lawyer's loyalty is to the law; and by worshipping law, chanting law and meditating on law, he becomes a true lawyer.

Let me attempt a crisp advice to the young wing of the profession. Juniors should act as monitors of seniors, not as mere back-room boys of the profession's super-stars, who occasionally ignore and periodically disown their juniors. Show a credible interest in the profession. Scan your brief, create and perform. Your abilities should come in for quick recognition. You may not get an award; but you may receive honourable mention. Make winning a habit. Do not be a mere gloveman behind the stumps, but a blaster in front, too.

Remember, you are destined to replace the ageing fleet, sans eyes, sans ears. Therefore discover the passion for the profession. A lawyer has to go about his profession with a 'mind without fear' and 'the head held high', to use the music of Tagore. "Strong in will", let us "strive, seek and find", as Tennyson said in Ulysses.

Hard work is the summary of the legal profession. Do not surrender to comfort. Come up the hard way. Confucius once said: "You cannot see anything, if you learn but not think, and it is dangerous to think without learning". Therefore study your brief thoroughly and argue. Be thorough with every aspect of the case, apposite or opposite. Play well in the court and try to net every good point you have. First, tame your mind, as an untamed mind is dangerous to advocacy. A swimming pool is a sport for one who knows swimming; but for one who does not, it becomes a death-trap.

Your arguments should not be long on facts but short on matter. See that the Judge does not consign your arguments to the scrap heap. Try to stump your opponent with good deliveries. Project yourself by performing better than your opponent. Do not argue in 'sweaty haste'. Do heavy homework. Argue, galloping thoughts gradually. Provide clarity to the confused. Argue in a voice as clear as a bell. Your voice is your only weapon. Try to get from the Judge undivided attention to you. Try, of course, to project yourself; but not to insult your adversary. Do not make rough-edged submissions. Respect seniors in the profession. Senior advocates remain a powerful presence at the Bar. Remember, interruption is a double-edged weapon. It can be answered only by interruption. And, interruption is not answering. Sometimes you have to tolerate the intolerable. Before some Judges all your answers get questioned. Remember, there are jabberers as also speed-breakers both among Judges and lawyers. Advocacy is not a shoot-out between opposing counsel, or between the Bench and the Bar. An advocate is paid to argue the point, not to decide it, as David Pannick said. Lawyers are not there in court to say 'amen' to the Judge's observations. Show feisty independence. Resist the strong-arm method of the court. Some Judges hate the guts of lawyers. Lawyers labour under a disadvantage because when a Judge insults a lawyer, he cannot return the favour.

Fear only your own self. Respect your profession and the judicature. Do not adore individual Judges. For a lawyer, a Judge become irrelevant after retirement.

Please remember, English is the tongue for your survival; and the custodian of your future. Therefore, be thorough with the Mecaulay-imported diction.

For junior lawyers, the profession is a push-pull profession. They may suffer a massive anxiety attack. Confidence should be your biggest ally. Once you establish yourselves, you can try to grip the 'Fortune Pillar'. 'Win at Work' should be the motto of junior lawyers.

Wish you well, and great success in the profession. I am grateful to the providers of this opportunity.