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.

GENTLEMAN - AT - LAW:

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

Courtesy, gentilemanliness and dignity personified, the stranger-visitor said : "I am Advocate C.K. Sivasankara Panicker". "Please sit down", said my father-in-law and senior, Sri. A. Achuthan Nambiar. Introducing me, Sri. Achuthan Nambiar said: "Kelu Nambiar, my junior, as also my son-in-law". "Hello", greeted Sri. Panicker: "1 live some six houses away, at the right end of this Warriam Road. Since you are new to Ernakulam, I can render any personal help you require". "Thank you so much", said my senior. I was a fledging lawyer at that time.

That was in November 1956, the very day we reached Ernakulam from Madras on our shift, on the re-organisation of the States. The cordial personal relationship lasted till November 2003.

Sri. C.K. Sivasankara Panicker is no more. He has died aged 88. But his 'afterglow' remains. I had been to his house when his deadbody lay there. But I made an agnoising choice of not going near the body, for I wanted ever to remember his live face.

Sri. Panicker was a 'complete package' as a lawyer, who led from the paddock to the post. His progress in the legal profession from pursuit to perfection and prosperity was phenomena!. He was seated in the best front seat row. A lawyer courageous, he was; a lawyer who had spent a life-time of feisty independence; and who was affectionately respected. He showed strong professional ethics even in high-pressure situations. He was Kerala Bar's most marketable lawyer. He displayed a western lawyer's wares. He was a man of tremendous integrity. He was an asset to the legal profession; not a shadow justice.

Sri. Panicker never considered an advocate's fee as 'mount fee'. He was a lesson in professional ethics for the young lawyers.

Even at 88, when he died, his memory bank had not lost its deposits. He was a man of tremendous determination and concentration.

Sri. Panicker was a lawyer who got the profession in his hand. He took accolades with a heavy dose of humility. His arguments were lucid and clear, like a running stream.

The void-at the top of the legal profession in Kerala is increasing. This is a sorry state of affairs in these days of endangered species (of good lawyers).

When life ebbed out of Sri. Panicker, the moment signalled the end of a great careeer. The profession has lost a stalwart, who symbolised the very essence of humility and simplicity despite the fact that there was no vertical limit for his raise in the profession.

Sri. Panicker's charm lies in his being totally devoid of pretension. He never showcased his ability.

He was ready for a victory much before a case started. Learning to him was not profit-driven. He never put a client to difficulties by design or default.

Humble, polite, well-mannered, brave and wise in life, was Sri. C.K. Sivasankara Panicker, the Lawyer Emeritus; a gentleman-lawyer he was. I salute the memory of the Gentleman-at-law.

POWER OF COURTESY

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

His appointment as Judge, High Court, was announced. He was my erstwhile student. He came to me, ecstatically though, the day before his swearing-in as Judge; and sought my blessings. I gave them aplenty. He then made another request. He wanted me to give him some advice regarding right behaviour and faultless functioning as a Judge. I was glad, he asked my views. I said:

"Mind you, you have not become a Judge by pressing a button on the voting machine.

Judicial office is essentially a public trust.

Judges are the most privileged inhabitants of the High Court.

Do not be a victim of the privileged position you enjoy.

Do not be affected with the syndrome of 'I' and the 'Self.

Bear a dignified manner; but not insulting posture. The Bar loves to see you smile.

Do not be intoxicated with your own delusions.

Try not for judicial triumphalism.

See that your court does not operate in confrontation, but co-ordination.

Do not laugh at a lawyer to keep yourself in good humour.

Do not shoot from the lip, without pausing and considering.

Lawyers may not always enjoy the sound of Judges' music.

Remember, you cannot reform anyone through abuse.

Do not make unbalanced comments from the Bench.

Do not make it a habit to question all the answers of the lawyers. Less talk, more disposals.

Let it not be said of you that you show not just intolerance, but crude authoritarianism.

Remember, advocacy is not a shoot-out between the Bench and the Bar.

Do not enlarge the domain of the judiciary needlessly.

Remember, not even two Hon'ble Judges may surpass a certain great lawyer.

Create no occasion to say that you are less than unbiased towards the Bar.

Do not inflict a wound on the Bar that would refuse to heal.

See that your court is not a sort of Siachen, the highest battle-field (in the world).

Do not get hold of the wrong end of the stick while deciding an issue.

Write judgments for times to come.

Do not give occasion for anybody to say that you could have done well with a little more civility.

Remember, a Judge is not a disciplinary authority over lawyers.

Exercise the power of courtesy and dignity, not position and authority.

Mind your language. Do not talk 'Greengrocer's English'.

Lastly, do not forget that young lawyers are the profession's fuel of the future.

May God bless you."

"Thank you, Sir," he said; and departed.

He served; and left.

Ask me not whether he had conformed to my advice; or tried to teach the teacher; or whether it was possible for him to beat the drums for a successful good functioning.

R.I. P.

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

This is the fifth in the series of occasional articles by me.

Let me not start with a bang or whimper, but with silence.

God gave him the dying grace. But, we, blessed with living grace, show disrespect to his soul, looking down from a vague height. The question, or conjecture, is, whether it is right. The answer, or deduction, is, we should not hurt his soul.

I am on the practice of mass obituary reference in Court, accorded to lawyers, on hearing the rumour of mortality; delayed talk about the departed dead. I am not raising an issue from nowhere. Now-a-days court reference to a deceased lawyer is delayed for weeks together, until death slays another lawyer. Court reference is then held for the two together. There are instances in which obituary reference is held for three lawyers at one and the same time, singing treble. And this is done as an empty formality (of a ritual). You should have respect of place, person and time, as Shakespeare said.

If you think we are doing the right thing, perish the thought. I should think, it borders on absurdity. It is objectionable from Alpha to Omega.

Respect the dead to uttermost extent, is what we have been taught. Do not give a 'Golden Dustbin Award' to a deceased lawyer. Do not disturb him in the peaceful bosom of his grave. "O grave, keep shut lest I be ashamed", sung John Mansfield.

It is hardly a secret that when a Judge dies, obituary reference is promptly held as if death reveals the eminent and 'judicial' hearts are hurt with a deep dynastic wound; forgetting what Charles Caleb Colton said: "Death and the cross are the two great levellers; kings and their subjects, masters and slaves, find a common level in two places - at the foot of the cross, and in the silence of the grave". The sentinel of the grave only counts, not weighs.

I am showing a healthy anger. If you do not feel diminished with the death of a lawyer, at least avoid insulting his soul; and allow his soul requiescat in pace (R.I.P.).

My last wish: Do not wake me up in my grave long after my interment only to convey your false regrets and rehearsed recollections. Leave me alone in my Hades, forgiving me, as "Only the dead can be forgiven": (W.B. Yeats, in "A Dialogue of Self and Soul").

LABOUR LAW REFORMS: EARLIER THE BETTER

Even States can take initiative

(By Advocate H.L Kumar, Editor: Labour Law Reporter)

'Time and tide wait for none' is an old saying. Now, if one does not change and does not keep pace with the science and technology, one is bound to be overtaken by others, perhaps left behind for always. The growth that is taking place is no longer arithmetical but it has become geometrical and, therefore, exponential. In this context, it has become absolutely necessary to shed and eschew the shibboleth labour laws, which were enacted in the backdrop of industrial revolution and socialistic mindset. Those laws have outlived their utility as they are proving to be abbatross in the neck in the era of galloping technological revolution.

The world is increasingly getting borderless              WAKE UP CALL FOR CENTRE AND STATES

and has shrunk into a global village with                   Indian Companies should constantly innovate and bring

enough methods of connecting each other               cost -effective products.

The development in I.T. hasrevolutionised                Labour reforms, if delayed, willlead to disastrous

the speed and means by which both money             consequences and industries, once shifted to more

and information can flow round the planet.               favorable locations, will find it difficult to come back and

Today, the world is literally at finger tips of the         our advantages will dissipate since others who are

hand that holds the laptop. In our lifetime, we           waiting in the wings will lap it up.

have seen a transformation of communication,         Remove the protective fetters of shibboleth anti,

which has changed our lifestyles forever. The           employment labour laws hampering

environmentis ready to swallow us up into a             the growth and see the wonders!

knowledge and technology podium.

The power of networks in mailing information available across the globe, across the industry, across the companies, across the employees and across the customers has totally changed the ground realities. Consequently, competition has become very aggressive to such an extent that now no Company can sell its outdated products in new markets. People everywhere know about the existence of latest products through T.V. and the various media. Every day we are discovering new themes of information sharing and people connectivity. Yesterday you could e-mail, then you could chat, now you can see, next we could be just shopped across in a jiffy like the star worlds? Who knows next? Thus, in order to survive, we have to be operational for this change. Thus networking of people, races, and communities and enthralling!

In order to survive in the competitive environment of today, the Indian companies should constantly innovate and bring out products and services in a cost effective manner to eater to the needs of to-day's demanding customers. The efforts thereof should be obviously supported by reforms, both economic and others. The most important, in this direction, is the labour reforms.

India has, no doubt, potentials and blessed with skilled workforce and abundant of raw material to be a leader of the world but labour laws stand in the way to achieve the desired results much less the targeted growth rate. To make India a major industrial and manufacturing power in the globalised world, the Government of India will have to urgently make the labour laws simple and unvexatious otherwise the immense talent as, available in plenty at much cheaper price, will be wasted. Take it for example that technocrat-support company in Bangalore recently advertised for 800 jobs and it has received 87,000 applications.

In the recent past, there have been many approaches for effecting labour reforms like Ramanujum Committee report and recommendations of the Group of Ministers Report of the 2^nd National Commission on Labour. Even though it is understood that these issues are being examined and processed at various levels, the out-come thereof is still awaited.

Some of the States, have already brought about certain reforms and simplification in labour laws without compromising with basic objective of the statutes and without diluting the implementation mechanism. For instance, Andhra Pradesh has initiated several steps in this direction. If other States don't reform their labour laws, will it not compel the industrialists to shift their activities from other States to Andhra Pradesh. Any central law, in this regard, would always be desirable. The jute industry is leaving Kolkata and shifting to Andhra Pradesh because there is not only cheaper labour, better work culture and employment but friendly labour laws also.

India has many locational and other advantages - including a skilled, English-speaking work force. These advantages are not being tapped up simply because of labour laws which are over protective even for non performers.

It must be remembered that when a company markets its products or services to the world, it is free also to locate its factory in the most favourable location. India, because of its anti-employment labour laws, is a most unfavourable location. It may be noted that now Ajanta Clocks has shifted its manufacturing base to China; obviously because it will be cheaper and easier to produce there with a conductive work culture and open hire and fire policies. For instance, Taiwan's Life on Tech Technology Corporation, manufacturing and exporting flat-screen and printers, has merely 3,000 employees in Taiwan as compared to 3,00,000 at its 18 factories in China because of lower labour cost and simpler labour laws.

The talk of the Union and Justice Law, Company Affairs and Commerce Minister Shri Arun Jaitley, on "India's growth challenges and opportunities in Global Trade at Hyderabad in August 2003" is summarised by Mr. B.C. Prabhakar, Working President of Karnataka Employers' Association, as under:

• India can emerge as knowledge supplier to world with vast reservoir of Talent.

• A revolution in service sector is sweeping across the world and we can offer sharpest minds at cheapest price.

• The services sector, which now forms the largest component of economy accounting for 52% of GDP, was the "greatest source of strength" for the country.

• Reforms in labour laws is the immediate need to make the country's manufacturing sector competitive in global markets. Those who are opposing labour reforms are actually anti labour.

• Increase in productivity will make the Indian Industry more competitive and thereby create more employment.

If the labour reforms are attended to, promptly, there is no earthy reason why India should not emerge as the manufacturing destination of choice for the entire world. The only requirement now is that we wake up and see both the problems and the prospects squarely in the eye. Then we must act.

The English language is a gift of Macaulay to this country and it is because of this language that the computer geniuses of this country have obtained very high edge on others but so long as the work culture and labour laws are not changed, all our advantages will dissipate and others who are waiting in the wings will lap it up. In fact, work culture and labour laws are very closely inter twined. Remove the protective fetters of labour laws and see the wonders. It is not protection but incentive that will immensely generate the work culture. The sooner it is realised, the better otherwise the industries, once shifted, would find it difficult to come back.

The problem in India is that there is an acute dearth of forward looking political leaders with requisite will power. They believe more in rhetoric than in reality imitating the ostrich-like policy. Otherwise, there could hardly be any plausible reason for India still positioned at the lowest ladder of development in the comity of nations despite being the biggest supplier of information technologists.