WHAT IS WRONG IN NOT HEARING BOTH SIDES

(By K. Jagadeesh, Advocate, Ernakulam)

Mr. Kelu Nambiar, Senior Advocate is very much critical of a Judge who disposed off a case without effectively hearing the counsel for the petitioner (2003 (3) KLT Journal 33). He has given an overall account of the chair, mannerisms of the Judge, and the line of events happened in the court. Having read the manner in which the case was disposed off by the Judge, one would wonder what else would be the decision on that set of facts. There the petitioner was aggrieved by transfer and he made representation before the authority. The ordinary and normal relief would be to direct the authority to expeditiously dispose of the said representation submitted by the petitioner. The court was pleased to grant the relief as it was not opposed by the Government Pleader.   The view of the Judge was endorsed by the Government Pleader because it was only reasonable.

An advocate appearing in that court, could understand the nature of cases that were being heard. There are many cases in which such directions as given by the Judge, were prayed for. If the Judge feels that some relief is to be given, what is the impropriety therein without adverting to the detailed arguments of the counsel. What assistance of the counsels (or Senior looking counsels) would the court require to take a decision on such cases. Is the Judge bound to hear all the arguments of "middle aged senior-looking counsels (possibly a Judge in waiting)", even if it thinks that such relief could be granted without his assistance. In such a case, the formality of hearing of the petitioner and the Government Pleader is reduced to the minimum. Still if the senior looking counsel thinks that he has more to be argued, he can draw the attention of the Judge and submit the points which was left unconsidered by the Judge. The Government Pleader can also do the same. Normally no Judge will refuse to hear the counsel. On the other hand, can the middle aged senior looking counsels insist that they should be given enough opportunity to give his lectures so that he can have the satisfaction of having argued the case and presented his skills of advocacy in the court. Having regard to the backlog of cases and the rush in the court, it would be uncharitable, if any senior counsel insist for such special privileges, which is not necessary in the facts and importance of the case. In this context the number of cases heard and disposed of by the Judge assumes significance. The Judge was successful in hearing and disposing of the cases only because of his endeavour  to accomplish speedy justice in his unique manner.

Mr. Kelu Nambiar says that although the case was yet to be argued, but the decision is almost in the bag. A case although it is not argued, exist in the form of pleadings and the Judge goes through the pleadings beforehand and takes a decision on it. As the counsel, senior or junior, can only elaborate on the pleadings already made, there may be cases where argument of the counsel is found unnecessary by the Judge; especially in the illustrated case mentioned in the critique.

One thing is sure in my mind. The middle aged senior looking err have only equal status before the court, like any other counsel. The court judges the merit of the case and not the counsels who argue the case.   If the Judge gives opportunity to the senior or counsel to argue for the sake of his satisfaction, and the decision on it is the same ,it does not make any difference as regards the client. Then why should the Judge devote such valuable time of the court to satisfy the mind of a senior counsel at the cost of client and other advocates. That apart how should a Judge be concerned with the colour of the hair of the counsel rather than the merits of the case. The Senior Counsel has to elaborate.

PARTY - IN - PERSON IN COURTS, TRESPASSERS?

(By Varghese P. Thomas, Advocate, High Court of Kerala. Cochin)

This question is lurking in my legal thought after going through several decisions reported in journals. One of the main cases reported is 1994 (2) KLT 620 wherein the party in person before the District Court at Pathanamthitta argued the matter before the Division Bench in M.F.A. No.561/93 and he succeeded. The defeated party promptly filed SLP (Civil) No. 17945-46/94 through Senior Counsel before the Honourable Supreme Court and the party in person appeared before the Supreme Court and the said SLP were dismissed in his favour. This party in person appeared earlier in a case before the High Court of Judicature at Madras against the acquittal under S .256( 1) of Code of Criminal Procedure and succeeded and it is reported in 1984 Madras Law Journal (Crl.) 692. It seems that the counsel who appeared for the respondents then was now seems to be the sitting Judge Mr. Justice M. Karapangavinayakam. The latest case argued by the party in person forhis close relative is a reported decision in 1999 (3) SCC 614 as the power of attorney holder.

This party in person when appeared before one of the small causes court at Chennai, a group of young advocates, some of them inabriated, protested to the Learned Judge for his sitting on a Bench stating that "it was meant for advocates only". According to him, the learned Judge remained a silent spectator and he walked out of the court after telling that it is the fundamental right to be seated in court, being a Hon'ble citizen of the country. He filed a Writ Petition under Art.226 of the Constitution "praying for the issue of writ in the nature of a declaration that a member of the public like him who is conducting a case, party-in-person, before a Civil or Criminal Court is entitled to be seated in the court and make use of the table available in the court hall and such liberties should not be interfered with or questioned by the members of the Bars". The main Grounds in support of his prayer was that "All the Courts are the creations of the Constitution of India. All the Courts are meant for the citizens of the country. All the laws are enacted for the citizens and the citizens are not for the law. Appointment of a lawyer in a legal proceeding is not a 'sine qua non'. There shall be no discrimination in view of the quality of status enshrined under Art. 14 of the Constitution of India. The famous Latin adages "Fiat justicia ruat coelleium" and "Nevibe fano justicia" - The Court is the guardian of the Constitution as well as peoples' rights. One of the first and highest duties of all Courts is to take care that the act of the court does no injury to any of the suitors. "What should be borne in mind by one and all is that lawyers are created for Courts not Courts for lawyers". This ratio reported in (K.A. Mohammed Ali v. C.N. Prasannan (AIR 1995 SC 454)) he relied.

The learned Judge who was very kind and even if paid encomium to him for his disciplined conduct, disposed of the Writ Petition heavily relying on the Division Bench decision of the Mysore High Court in (T. Venkanna v. Mysore High Court, reported in AIR 1973 Mysore 127) inter alia holding thus:- "Litigants/parties appearing in person before Courts for their own causes cannot claim the same privileges/rights being given to the members of the Bar/ Advocates and they cannot occupy/use the chairs, tables provided for the advocates......."

Being aggrieved he filed Writ Appeal No.2262 of 2003 and the Division Bench presided over by the Hon'ble Chief Justice of the Madras High Court was pleased to allow the appeal by Judgment dated 29.7.2003 (see 2003(3) KLT Major K. Mathews v. RegistrarMad.)(SN) 122) inter alia holding thus in Para 2. "................There cannot be any doubt that the appellant even as a party in person is entitled for the same treatment as any member of the Bar and he is entitled to pursue his legal remedies which include the filing of the cases and arguing before Courts…….”

In the last paragraph of the judgment the Honourable Court observed as follows:

"Hence, we dispose of this Writ Appeal modifying the order of the learned Single Judge stating that the appellant shall be entitled for the seat meant for the Bar, if the seats are not occupied by the Bar and no Court shall deny the appellant's right to address the Court uninhibited by any circumstance. But, we make it clear that this cannot enable the appellant to claim a seat which is occupied by a Member of the Bar, as of right. In fact, no positive direction as sought for by the appellant can be given, and suffice it to say that each court before whom the appellant appears as a party in person shall consider the aspect in accordance with the above legal principles."

In the above circumstances many persons appear as party in person before the court have a wrongful claim that they have got the fundamental right to be seated along with the members of the bar in the court. The proceedings in the court is not meant for any torn, dick and harry walking on the road. But by virtue of inherent adoration for our judiciary by the party-in-person, the court will read and observe the grievances of the party. It is bounden duty of the party in person to present a good case worth of adjudication by the Bench. Better, tolerance of the court is not expected to test by the party-in-person.

(ix) to provide that, for purposes of enforcement of foreign awards, every arbitral award made in a country to which one of the two International Conventions relating to foreign arbitral awards to which India is a party applies, will be treated as a foreign award.

Arbitration has to be looked upto with all earnestness so that the litigant public has faith in the speedy process of resolving their disputes by this process.

The success of the institution of arbitration like a judicial institution depends upon the faith the institution could create and establish in the mind of the public. Faith of the public depend upon the character, credibility, impartiably and uprightness of the persons who are called upon to arbitrate. It is the dedication and devotion of the arbitrator to the cause he is called upon to arbitrate with the proverbial judicial aloofness from the parties and the quickness of perception and perfection, exactitude and uprightness in the disposal of the cases that could bring image, reputation and popularity to the institution of arbitration.

I know of cases where parties to arbitration having fed up with arbitrator have settled the cases by themselves!!

I know of Judicial and quasi judicial authorities and beaurocrats of proven ability, integrity, impartiality, uprightness proving otherwise in positions they hold after retirement. The attitude and reaction of the public to the reports and findings of Commissions held by retired Judicial and quasi judicial authorities and beaurocrats are not very happy.

If institutions like the Indian Institute of Arbitration and Mediation could create the necessary climate/atmosphere in which an arbitrator whether a lawyer, retired judicial or quasi judicial authority, beaurocrat or engineer or Chartered Accountant could be looked upon with all earnestness so that the litigant public has faith in the institution of arbitration, the institution can be a proper and efficient alternative for the judiciary.

Though the general deterioration in standards have effected the judiciary as well as other institutions, still people in India and world over look upon judiciary functioning in democratic countries as the best institution that could be depended upon/relied upon.

Though arbitration is an alternative, it cannot be a substitute for the judiciary. Even to become an effective alternative, the arbitrator whether a lawyer, retired judicial or quasi judicial authority or beaurocrat should have the great qualities of a sitting Judge-impartiality, integrity, rectitude, uprightness and courteous behaviour and the preparedness and patience to learn and listen.

LAWYERS FAVOURITE WEBSITES - 2004

(By P.B. Sahasranaman, Advocate)

CAUSE LIST OF KERALA HIGH COURT

http://causelists.nic.in/kerala/indexl.html.From this site you can obtain the cause list of theKerala High Court directly. You can search the cause list of daily cases by lawyer wise, courtwise. Weekly list as well as important notices of the court are also available.

KERALA HIGH COURT

http://highcourtofkerala.nic.in/Thisis the official web site of Kerala High Court from whereyou can obtain the information about the High Court.

SUPREME COURT OF INDIA

http://courtnic.nic.in/Thisis an official site. You can check the position of the cases in SupremeCourt of India. Interim orders are also made available in the site Daily listing of cases. The otherHigh Courts can also be approached through this site.

KERALA GOVERNMENT

http://www.keralagov.com/This is the official site of Kerala Government on which a lot ofGovernment documents are made available.

LAW COMMISSION OF INDIA

http://lawcommissionofindia.nic.in/This site contains all reports of the Law Commission madeso far. You can also interact with them on certain matters.

KERALA STATE POLLUTION CONTROL BOARD

http://www.keralapcb.org/Thissite provides information about the procedures to he adoptedfor obtaining licence and several forms are available for making applications. This is the official site.

MANUPATRA

http://www.manupatra.com/asp/home.aspThissite is a very useful site for lawyers. It is a paysite. But certain details are available.

RESERVE BANK OF INDIA

http://www.rbi.org.in/Thisis the official web site of the RBT where the circulars issued by themare available. If you subscribe they will send you the said circulars in advance.

SUPREME COURT ON LINE

http://www.supremecourtonline.com/.This is a free site from where you can search and getjudgments of the Supreme Court of India free of cost.

SUPREME COURT OF INDIA

http://www.supremecourtcaselaw.com./Thisis a pay site where the judgments are unloadedimmediately on the next day. Subscriber will be intimated daily about the uploading of the judgments.

SUPREME COURT OF UNITED STATES

http://www.sunremecourtus.gov/This is the official site of the Supreme Court of US. Sitecontains more on the Court.

ARTICLE 51 (C) OF THE CONSTITUTION OF INDIA

(By Hon'blc Dr Justice AR. Lakshmanan, Judge, Supreme Court of India)

The decade in which India gained its independence was marred with the bloodiest war the World had seen since the advent of civilisation. It was a period of complete mistrust and disharmony. Alliances were being formed between the erstwhile allies of the Second World War. But they were alliances, which were polarising the World and creating a chasm, which was never seen before. Having gained independence one of the greatest challenges faced by our country was to preserve our sovereignty at any cost. Yet, at the same time, it was the need of the hour to embrace the new world order which was sought to be based on social and economic progress by fostering co-operation and recognizing the mutual rights and liabilities of each country.

No country can survive as an island in this vast ocean of humanity. A web of unseen bridges joins all the nations into the global village. Just like the traffic on any road, there are certain rules and regulations, which have to be followed on these bridges to avoid any mishap. International law and International Conventions lay down these rules and regulations for a smooth flow of traffic. International law and International Conventions are themselves a quintessence of the desire of the people of the World to live in peace and harmony.

The founding fathers incorporated into the Constitution the aspirations of the people of the country to consolidate peace and security in the World and for paving the way for the establishment of a just social order. In 1949, Pandit Jawaharlal Nehru addressed the U.S. Congress and said that the objectives of the foreign policies of the new nation would be preservation of the world peace and enlargement of human freedom. Thereafter he evolved the principle of Panchsheel, the five principles of harmonious co-existence of nations for establishing lasting peace on earth.

Before India became independent, the Indian Courts under British rule administered the English Common Law. They accepted the basic principles governing the relationship between international law and municipal law under the common law doctrine. Under the English Common Law Doctrine, rules of international law in general were not accepted as part of municipal law. If, however, there was no conflict between these rules and the rules of municipal law, international law was accepted in municipal law without any incorporation.

Keeping in view the aspirations of the people of the country to consolidate peace and security in the World, the founding fathers incorporated into the Constitution Art.51 of the Indian Constitution, which directs the State to:-

(a) promote international peace and security;

(b) maintain just and honourable relations between nations;

(c) foster respect for international law and treaty obligations in the dealings of organised people with one another; and

(d) encourage settlement of international disputes by arbitration for paving the way for the establishment of a just social order.

Leaving a little confusion, this provision differentiates between international law and treaty obligations. It is, however, interpreted and understood that "international law" represents international customary law and "treaty obligations" represents international conventional law.

Art.51 as well as other Articles of the Directive Principles are considered by well-known Jurists to be of no potency and that they were only mere platitudes. They did not reckon with the pro-activism of the Indian Judiciary.

Prof. Weir, in his thesis "India's new Constitution Analysed" said:

"As these principles cannot be enforced in any court, they amount to a little more than a manifesto of aims and aspirations."

Sir Ivor Jennings, in an article in the Hindu, a daily newspaper about the Directive Principles said:

"They can be used for the purpose of political and private criticism but they confer no legal rights and create no legal remedy.....it all reads like, and is, a political manifesto."

It is a general criticism that since Art.51 (c) is placed under the Directive Principles of State Policy in Part IV of the Indian Constitution; it means it is not an enforceable provision. Since the principle laid down in Art.51 is not enforceable and India has merely to endeavor to foster respect for international law, this Article would mean prima facie that international law is not incorporated into the Indian Municipal Law, which is binding and enforceable. However, when Art.51 (c) is read in the light of judicial opinion and foreign policy statements, it suggests otherwise.

One such landmark judgment is of the Supreme Court of India which has dealt with the applicability of international conventions to the country; the Apex Court in the case of Vishaka v. State of Rajasthan (1997) 6 SCC 241 held:

"In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all workplaces, the contents of international conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Arts. 14, 15, 19(l)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein."

"...Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and contentthereof, to promote the object of the constitutional guarantee..... regard must be had tointernational conventions and norms for construing domestic law when there is no inconsistency between them and there is a void in the domestic law."

Similarly in a string of landmark judgments, the Supreme Court has read the provisions of various International Conventions into Art.21 and the other Articles relating to Fundamental Rights. It would, therefore, appear that using Art.51 as a tool in its hands, the Supreme Court has been able to inject into Part III of the Constitution the vast number of rights flowing from the United Nations Charter, from the various conventions ratified by India and, in particular, the International Conventions on Civil and Political Rights, 1966 and the Convention on the Elimination of all Forms of Discrimination Against Women, 1979.

It is often said that, judicial activism in this field cuts into the prerogative of the Parliament to make laws and to the extent to which Art.51 should be implemented, by enacting laws for achieving objects of an international convention, is within the realm of Parliament's legislative competence under the Constitution. But the Courts, utilizing international conventions for interpreting the different provisions of the Constitution, and implementing them de hors such provisions could be criticized as encroaching upon the power given to Parliament under Art.253 of the Constitution.

In S. R. Bommai v. Union of India ((1994) 3 SCC 1) the Supreme Court of India rejected any such approach and said for the present, it would suffice it to state that the provisions of the covenant, which elucidate and go to effectuate the fundamental rights guaranteed by our Constitution, can certainly be relied upon by Courts as facets of those fundamental rights and hence, enforceable as such. The Supreme Court of India has a self imposed restraint when it is faced with a situation where it has to balance between the interpretation of the Constitution in such a sway that the lacunae in the municipal laws can be filled without overstepping its limit in its zeal of judicial activism.

Art.51 (c) embodies the dream of the founding fathers of our Constitution, who wanted peace and harmony in the World. They were keen to incorporate whatever was the best in the interest of our Nation. At the same time, they also had to safeguard against the over enthusiasm of the Legislature lest in their zeal they compromise on the basic integrity of our country and incorporate or ratify conventions which we neither need nor afford due to the complex and intricate character of our nation. Therefore, the Constitution envisages a goal for the Legislature in the form of Directive Principles. Art.51(c) is one such goal and the tool to fulfill this goal is in the form of enabling power of the Parliament under Art. 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution.

In the case of People's Union for Civil Liberties v. Union of India reported in (1997) 1 SCC 301 referred to Art. 17 of the International Covenant on Civil and Political Rights, 1966 and Art. 12 of the Universal Declaration of Human Rights, 1948, so as to derive from Art.21 a right to privacy in India. The Court observed in this connection:

"International law today is not confined to regulating the relations between the States. Scope continues to extend. Today matters of social concern, such as health, education and economics apart from human rights fall within the ambit of International Regulations. International law is more than ever aimed at individuals. It is almost an accepted proposition of law that the Rules of customary international law which are not contrary to the municipal law shall be deemed to be incorporated in the domestic law."

All these would indicate the pre-eminent position that Art.51 of the Constitution enjoys as in this country fostering respect for international laws and treaty obligations with one another. This has resulted in international law being injected into the domestic law with the Constitution being classified as municipal law for this purpose. As a result, through a very pro­active judiciary which has utilized interpretative skill by utilizing the provisions of Art.51 for extending vast rights and expanding the existing rights, by giving effect to International Conventions which it has ratified, though no municipal law has been enacted to implement these Treaties. The demand for a world Parliament has often been raised at different forums for achieving peace and harmony in the World. This, however, is not the solution to the existing problems in the World. We have sufficient provisions in our respective Constitutions to achieve the peace and harmony which has been deluding us since time immemorial. What is actually needed is the spirit of harmony and mutual respect to each others rights and duties. If we are ever to achieve that state of complete harmony as in the fables, we have to rise above the petty issues, which have been dividing us. In conclusion, I would like to quote the words of former President of India - Dr. Radhakrishnan "The World has got together as a body: it is groping for a soul."