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JUSTICE A. LEKSHMIKUTTY

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LATE SIVASANKARA PANICKER - A TRIBUTE

(By  V.R. Venkatakrishnan, Advocate, Ernakulam)

In the passing away of this rare man, the bar has lost an excellent friend and the public, a generous benefactor.

It has been my privilege to know, fairly closely, late Sri. C.K. Sivasankara Panicker for the last nearly more than 40 years and I still remember the warmth with which he greeted us when we shifted from Madras to the Kerala High Court. He was a person who endeared himself to an incredible extent to all with whom he came across and I should say he was one of the few gentlemen who fulfilled the qualities mentioned by Cardinal Newman: "The true gentleman carefully avoids whatever may cause a jar or a jolt in the minds of those with whom he is cast; all clashing of opinion, or collision of feeling, all restraint, or suspicious, or gloom, or resentment; his great concern being to make every one at their ease and at home. He has his eyes on all his company; he is tender towards the bashful, gentle towards the distant, and merciful towards the absurd; he can recollect to whom he is speaking, he guards against unreasonable allusions, or topics which may irritate; he is seldom prominent in conversation and never wearisome". Without fear of contradiction, the late Sivasankara Panicker answered In a large measure the characteristics mentioned by Cardinal Newman.

As a man, he was the pink of courtesy and as a lawyer, he was gentle but firm and he never hurt the opposite side on any occasion. I have watched him with admiration at the coolness he displayed when the opposite side made a remark or made out a point, he never retorted, in the same coin. We have appeared together and I have appeared against him and he was a gentleman to his finger tips, par excellent. It was my privilege to have been his close friend for the last so many years; he was an elder brother to me, both inside the court and outside.

As Carlyle said "Industry is another form of genius" and late Panicker was a standing example of this illustrious quality of work and perseverance. He rose to the top by sheer dint of work and preparation; he was very fair to the opponent when he argued a matter, and often times, when I lost a brief, he used to console me by saying "forget about it; you have done your best."

More than his forensic skill and persuasive capacity, what arrested anybody's attention was his humility and it was without a parallel; he was humble to a fault; to my knowledge he has never offended anyone in the bar and he has been a generous friend and a benevolent benefactor. It is hard to displace such a gentle man with easy affabality and winning manners. It is difficult to forget this great Soul and his Noble Soul is bound to rest in peace.

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.