THE SURYANELLI VERDICT

(By Justice K.P. Radhakrishna Menon)

After achieving independence the magnitude of the unchecked craving for money, authority and the unchecked desire for sensual pleasures that have come to the upper echelons of the society is amazing. Their money power could control the election and bring the administration to its knees and consequently the administration could not prevent liberty/ freedom from degenerating into license; And alas situation has arisen where the freedom fighter has become a law breaker. Men at the helm of affairs have made life too easy for criminals and too difficult of law-abiding citizens. In the free society to quote the inimitable words of the elaborated jurist Sri.Palkiwala, "too many crooks break the law, blight young lives, traffic in drugs, and claim the fundamental right to exploit commercially sex and violence". The society is crime ridden today. Evaluating the situation the learned jurist has stated: "Are we right in thinking that hard evidence, if collected illegally, cannot be used against a criminal in a trial even when there is no other way of securing a conviction". The jurist opines "we have to strike an acceptable balance between the proper interests of society which wants criminals to be put out of harm's way and the equally proper instincts of libertarians, anxious that nothing should imperil the rights of the citizens".

The above high moral principles, nay mature legal principles because rooted in Dharma, pronounced by the Dharma chakra displayed on The National Flag, seems to have not been brought to the notice of The High Court which altered the verdict of The Special Court in Sooryanelli case relying on "description 6 of S.375, 'with or without her consent, when she is under sixteen years of age', Indian Penal Code, 1860".

The comments on the judgment by the literate and the illiterate, the layman and the learned, the philosopher and the man down to earth reflects the exasperated feeling of the society that, is not the kidnapping of a girl aged about sixteen, too high a price to pay for the freedom to be a permissive society?

That the conscience of the society is troubled cannot be disputed. But, that by itself will not make the verdict unacceptable provided it has constitutional foundation.

My attempt is just to have a peep into the legal aspects without being led away by emotions and sentiments.

To sustain the verdict of the High Court it shall be shown that description six of S.375 IPC enacted by The Legislative Council on 6th October 1860 is not inconsistent with provisions of the Constitution, particularly Part III and Part IV thereof and hence not void. It should in this connection be remembered that, "The Indian Constitution", to borrow the words of Justice Chandrachud, "is founded on the bedrock of the balance between Parts III and IV. This harmony between fundamental rights and the directive principles is an essential feature of the basic structure of the Constitution and therefore even Parliament cannot disturb this balance". Quoting political Pundit Granville Austin, Chanderchud, J. further stated (Kesavananda Bharati). "The freedoms of a few have then to be abridged in order to ensure the freedom of all. It is in this sense Granville said that these two parts constitute the conscience of the Constitution".

The above salient constitutional principle is reflected in the epoch making decision of Bhagavati, J. construing Art.21 read along with Art. 39(e) and (f) and Art. 41 of the Constitution. The minimum requirements high lighted in these provisions must exist, the learned Judge finds, in order to enable a person to live with human dignity and therefore no State, neither the Central Government, nor the State Government, has the power to take any action depriving a person of the enjoyment of these basic essentials. The basic essential relevant here is the one provided by Art.39: "that childhood and youth are protected against exploitation and against moral and material abandonment". It is apposite to note in the context that the framers of the Constitution were of the firm view that children and youth irrespective of age or gender are entitled to enjoy these basic essentials to enable them to live with human dignity enshrined in Art. 21. That these essentials are not to be jettisoned is further established by Art.51A prescribing, the fundamental duties, every citizen shall observe because they form part of the concept of 'Welfare State'. Part IV A of the Constitution (fundamental duties), "The Sovereign" was compelled to incorporate as the Country was not able to shake off the burden of the influence of Anglo-Saxon jurisprudence, the legacy of which one should say is, 'description six' of Sec. 375 IPC. It shall in this context be kept in view the verdict of the Supreme Court regarding the scope of the directive principles particularly Art.39(f); "statutory interpretation in the creative Indian context may look for light the lode star of Part IV of the Constitution i.e., Art. 39 and Art. 43. When two judicial choices are available, the Constitution in conformity with the Social Philosophy of Part IV has preference". In otherwords the Constitutionality of any law shall be decided in the light of the above principles. It is all the more so because Art.51A mandates that it is the fundamental duty of every citizen to abide by the Constitution. "Sixth description" of S.375 of the Indian Penal Code, a statute, the origin of which is traceable to antiquity, in my view, smashes the very basic structure of The Constitution into Smithereens, has been pressed into service by the High Court to acquit the accused other than the 1st accused. 'Description Six' of S.375 IPC is liable to be declared ultra vires the Constitution, in the light of the dictum of the Supreme Court mentioned above. This important aspect apparently has not been brought to the notice of the Judges. The judgment, with respect, therefore, warrants review which can be done by the High Court by invoking its plenary power as a Court of Record.

To conclude, I quote the ancient law giver Kautilya: "Whoever imposes punishment as deserved becomes respectable; for punishment when awarded, with due consideration makes the people devoted to righteousness":

The Plight of The Vendor of Food

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

Famous Novelist R.K. Narayan depicted the life of 'Vendor of Sweets' several decades back. Those were the days when there were no Food Inspectors to take samples. The 'Vendor of Sweets' in R.K. Narayan's story was affluent in contrast with the small vendors of food articles of the present day India.

The Prevention of Food Adulteration Act provides certain protections for the vendors of food articles from being convicted for the sale of adulterated article of food. Though these protections are, according to the enactment, available only to the vendors, who are the last links of chain of sale of food in the public, the Kerala High Court had occasion to hold that such protection is extended to subsequent warrantors i.e., distributors and dealers as well (1990 (1)KLT 572).

Instances galore that the vendors are often convicted inspite of the protection provided under the law. There are various reasons for the same. It is not that the Judiciary is not aware of this unfortunate situation. Citing the Supreme Court in Gameshmal Jeshraj v. Government of Gujarat, AIR 1980 SC 264, the Kerala High Court lamented "It is common knowledge that these small tradesman purchase the food article sold by them from the wholesalers and sometime even directly from the manufacturers and more often than not the adulteration is made either by the wholesalers or by the manufacturers (1982 KLT 760).

In the Supreme Court's case cited above Justice Bhagavathi, speaking for the Bench

pointed out......." a wrong impression is being created on the public mind that the law is beingproperly enforced whereas infact what is really happening is that it is only the small tradesmen who are caught and sent to jail. Aptly did the Supreme Court quote the unknown poet's lines:

"The law looks upon both man and woman

Who steals the goose from off the common

But let the greater felon loose

Who steals the common from the goose".

Under the provisions of the S.19(2) of the Prevention of Food Adulteration Act, a vendor is deemed to have committed no offence if he (a) purchased the adulterated article of food from a licenced manufacturer, distributor or dealer, if a licence is required for the food stuff or (b) if no licence is required, from any manufacturer, distributor of dealer with a written warranty in the prescribed form, provided the article of food was kept for sale or sold in the same state as he bought it.

In this, what are the ground realities in our country? Small shop keepers are supplied with innumerable articles of food at their places of business, by the dealers, distributors and most often by the manufacturers themselves. At times the vendors directly approach the dealers and distributors and buy goods for their trade. They obtain credit or cash bills/Invoices for their purchase. It is well settled proposition of law that the Bills, Invoices or Cash Memo are deemed to cover implied warranty, even if the warranty in Form VIA is not incorporated in the Bill or Cash Memo.

The mode of ensuring whether the Manufacturer, Dealer or Distributor has a valid licence as required under R.50 of the Act, as far as small vendors are concerned are practically nil in the prevailing market activities. The law should, therefore presume that the manufacturers, distributors or dealers who supply article of food for sale to the Vendors are deemed to be licence holders for the purpose of S. 19(2) of the Act. If they are in fact found to be not having licence, stringent action should be taken against them for violation of R.50 of the Act. The duty of the authorities under P.F.A. Act to ensure that all manufactures, distributors and dealers take proper licence, cannot be left unnoticed. On the other hand, if the vendors are asked to go and verify the records of the licencing authorities, mostly situated at long distances, before they sell the article of food to the public, no shop keepers will be able to do any business at all. This glaring fact can not escape the attention of the Judiciary. Gratifying is that it has not. The landmark judgment of the Supreme Court of India in Unnikrishnan v. Food Inspector, AIR 1995 SC 1982, is the result of the judicial notice of this fact. The case was one in which the vendor sold articles of food with bill and label. But the firm which is said to have manufactured and distributed the article of food to the vendor was found to be a bogus one. Yet the Supreme Court, reversing the current findings of these Courts below, held that the vendor was not disentitled to the benefit under S.19(2) even under such circumstances. The reasoning of the Supreme Court is very practical oriented, sound and has been (and is) a ray of hope for the scores of poor vendors of food articles throughout the length and breadth of this vast country.

There should arise no doubt or hesitations when a ruling of the Supreme Court of India is cited before any High Court or Subordinate Court to accept the findings of the Apex Court. But, alas! To add to the woes of small tradesmen in the Country, and to the surprise and amazement of the legal fraternity, the Kerala High Court performed a somersault in Varghese v. State. 2005 (1) KLT 635. With great respect would I state that Paragraph 9 of this judgment is in sharp contrast with what the Supreme Court held in Unnikrishnan 's case both in spirit and content. More baffling is that the Kerala High Court previously had occasion to follow Unnikrishnan's case in 2002 (1) KLT 703 which was also brought to the attention of the Judge. Would not it have been more appropriate that the case be referred to a Division Bench of the High Court if at all a new interpretation were called for? The efforts made to overcome the Supreme Court's decision appear to be painful. Avoidable were those strains.

Thus we are confronted with the situation where the devotee is deprived of what the God bestowed upon him. When the decisions of the Supreme Court of India are subjected to hair-splitting evaluations and fresh interpretations on the grounds of "facts and circumstances of each case", the law journals to which the lawyers contribute a large chunk of their earnings would reduce to sheer waste. On the practical side, it is no secret that the subordinate Judiciary would rather be inclined to tow the line of High Court's rulings even where contrary views are expressed by the Apex Court.

There the judicial precedents and propriety would remain in paper only.

"My dear Vendors of food,

Hangs above you the sword

Of modern Damocles,

And the gates of dark gaols

Await your entry enmass".

In Re: Right of "Preaudience'

(By T.P. Kelu Nambiar, Senior Advocate, High Court of Kerala)

Henry Campbell Black defines 'Preaudience' as: 'The right to being heard before another. A privilege belonging to the English Bar, the member of which are entitled to be heard in their order, according to rank, beginning with the Attorney and Solicitor General, and Queen's Counsel, and ending with barristers at large".

In Attorney-General for the Dominion of Canada v. Attorney General for the Province of Ontario, 1898 A.C. 247 (PC), Lord Watson observed: "The position occupied by a Queen'sCounsel (or King's Counsel).........is in the nature of an office under the Crown.........; and it isalso in the nature of an honour or dignity to this extent, that it is a mark and recognition by the Sovereign of the professional eminence of the counsel upon whom it is conferred".

Senior Advocate in India is akin to Queen's Counsel (QC)/King's Counsel (KC) in Britain.

In India, the status of Senior Advocate is conferred by the Supreme Court or a High Court. S. 16 of the Advocates Act 1961 provides for the division of the Bar into Senior Advocates and other Advocates. This was as recommended by the Law Commission. Sub-s.(l) of S.16 says that there shall be two classes of Advocates, namely Senior Advocates and other Advocates. Under sub-s.(2) of S.16:

"An Advocate may, with his consent, be designated as Senior Advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability, standing at the Bar or special knowledge or experience in law, he is deserving of such distinction".

Under sub-s.(3) of S.16, Senior Advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interests of the legal profession, prescribe.

S. 17(2) of the Advocates Act lays down that the roll of Advocates prepared and maintained by a State Bar Council shall consist of two parts, the first part containing the names of Senior Advocates and the second part, the names of other Advocates.

Under R.4, Chapter IV, Part V, of the Bar Council of India Rules, the seniority of a Senior Advocate shall be determined in accordance with the date of his enrolment as Senior Advocate. Part VI, Chapter I, of the Bar Council of India Rules contains rules regarding restrictions on Senior Advocates. The rules provide:

A Senior Advocate shall not file a vakalathnama; a Senior Advocate shall not appear without an Advocate-on-Record in the Supreme Court or without an Advocate in Part II of the State Roll in any Court or Tribunal; a Senior Advocate shall not accept instructions to draft pleading or affidavits, advice on evidence or to do any drafting work of an analogous kind in any Court or Tribunal, except in settling any such matter as afore-said in consultation with the Junior Advocate/Advocate-on-Record; a Senior Advocate shall be free to make concessions or give undertakings in the course of his arguments on instructions from the Junior Advocates; a Senior Advocate shall not accept directly from a client any brief or instruction; a Senior Advocate may in recognition of the services rendered by the Junior Advocate appearing in any matter, pay him a fee which he considers reasonable. (Emphasis supplied, with a suggestion that 'may' may be read as 'shall'.)

The High Court of Kerala has framed Rules under S.16(2) of the Advocates Act, regarding designation as Senior Advocates. The rules provide three methods of designation, namely, suo motu by the High Court; on being sponsored by any two Senior Advocates; and by application made by the Advocate desiring to be designated as such.

S.23 of the Advocates Act contains provisions regarding right of pre-audience. It may be useful to read S.23:

"23. Right of Pre-audience:

(1) The Attorney-General of India shall have pre-audience over all other advocates.

(2) Subject to the provisions of sub-s.(l), the Solicitor General of India shall have pre-audience over all other advocates.

(3) Subject to the provisions of sub-ss.(l) and (2), the Additional Solicitor-General of India shall have pre-audience over all other advocates.

(3A) Subject to the provisions of sub-ss. (1), (2) and (3), the second Additional Solicitor-General of India shall have pre-audience over all other advocates.

(4) Subject to the provisions of sub-ss. (1), (2), (3) and (3A), the Advocate General of any State shall have pre-audience over all other advocates, and the right of pre-audience among Advocates-General inter se shall be determined by their respective seniority.

(5) Subject as aforesaid -

(i) senior advocates shall have pre-audience over other advocates, and

(ii) the right of pre-audience of senior advocates inter se and other advocates inter se shall be determined by their respective seniority".

The above aspects and provisions would show that Senior Advocates are a class by themselves; and have statutory and conventional duties and obligations; and rights and privileges.

I am prompted to come out with this write-up in view of the recent suo motu designation of nineteen advocates as Senior Advocates. I am senior to all of them by over twelve years; and I am entitled to alert them on their duties and rights. Though I lay no claim to being wise, I may not be considered to be a talking toy. I am sure, they will perform their duties, adhering to the statutory mandates and conventional duties and obligations: and remembering, 'old wood burns brightest'.

But, they have also to see that their rights and privileges are not breached.

I have a hunch that the Senior Advocates' right of pre-audience is not uniformly conceded by the Courts. J have had occasion to see a Senior Advocate, the giant redwood of the High Court Bar, waiting for considerable time in some Courts, with diminishing energy, without being taken note of by judicial eye. An advocate is not designated as Senior Advocate only to appear in Courts wearing Senior Advocate's vestments. The criteria for designation cannot be forgotten immediately after the designation. I am constrained to tell the truth; let it not offend anybody.

I remember a situation in which I had to assert my right of pre-audience. A learned Judge after passing over the case in which I was instructed, til! the 'call work' was over, took up the 'passed-over' case of a junior advocate. When I pleaded to take up my case, I was asked to wait, curtly though. I lost no time to assert my right of pre-audience, because I felt I was disdained. The learned Judge yielded, not without displeasure, though: I could see the Judge's huff and puff. Subsequent events, which I respectfully withhold, showed that the learned Judge was not quite aware of the 'right of preaudience' of Senior Advocates.

A Senior Advocate is a strong presence in Court. This has to be realised by both the Bar and the Bench. Causing embarrassment, in any manner, to a Senior Advocate is an affront to the judicial system itself. We have to learn the correct lesson from the British system, which is the basis of the institution of Senior Advocates.

A Queen's Counsel/King's Counsel does not get down on his knees when he makes submissions to Court. He sustains his reputation for credibility, independence, boldness and transparency. Mercifully, Senior Advocates are not in Judiciary's gravitational field. Attention, Senior Advocates and Judges. A Senior Advocate is an unbossed advocate, with confident courage. But he should be possessed of dangerous honesty. He does not discuss weather in a Court room. We want Judges eager to listen; and Senior Advocates eager to argue, without indulging in padding and wasting words, remembering not to blow balloons till they burst; and realising that their advocacy is not on the block; and making the Judge understand that they are not arguing in a lab., but before a Court.

I exhort Senior Advocates to bequeath their name to the next generation of lawyers. When a Senior Advocate speaks on respectability, he should look like his subject. After all, Senior Advocates are not a dime a dozen.

Lording Over: An Anachronism

(By T.P. Kelu Nambiar, Senior Advocate, High Court of Kerala)

The primary meaning of 'Lord' is God. Jesus Christ is also addressed as 'Lord'. Generally, 'Lord' means a master or ruler. In the feudal system prevalent in Western Europe in the Middle Ages, 'the Lord' was someone who was in a superior position, with charge over a number of vassals. In Great Britain, chiefly, Lord is a man who is a member of the aristocracy. World Book Dictionary gives the meaning of 'lord' as an owner, ruler, or master; person or animal that has the power; a titled nobleman or peer of the realm.

Black defines 'Law Lords' as peers in the British Parliament who have held high judicial office, or have been distinguished in the legal profession; i.e. a puisne Judge of the High Court or higher office. 'My Lord' is a conventional way, in England, for lawyers, barristers, etc. to address a Judge in Court: (Chamber's 21 st Century Dictionary)- In the definition of 'Lord', World Book Dictionary has quoted Maclean's statement: "Although clothed in impressive robes and addressed as 'My Lord', the Judge is still a human being".

Encyclopedia Americana says:

“ 'Lord' is an English title of honour or dignity that is used in different senses. In feudal times the lord was the grantor or proprietor of the land, who retained the ultimate ownership of it, the use only being granted to the tenant. Between the superior lord, or lord paramount, and the actual tenant stood the lord of the manor, or mesne lord.

"Lord is also a title of dignity, attached to certain official stations that are sometimes hereditary but sometimes only personal. Examples of the latter include lord Advocate, the Chief Law Officer of the crown in Scotland, and lord Mayor and lord provost, the former applied to the Chief Magistrate of certain English and Irish cities, and the latter to the corresponding officials in several Scottish cities.

"In its mostdefinite sense in English, lord is equivalent to peer, but the term does not express any special rankor degree of nobility. The five orders of English nobility-dukes, marquesses, earls, viscounts, and barons - constitute the lords temporal, in contradistinction to the prelates of the church, or lords spiritual, who are those Archbishops and Bishops of the Church of England who are members of the Legislature and sit in the House of Lords.

"The title is also applied, but only by courtesy, to the sons of dukes and marquesses and to the eldest sons of earls".

Therefore, apart from its primary sense of God and Jesus Christ, we, in India, have no lord, except the land-lord. For my part, I have no other God than the legal profession, for a lawyer moves on advocacy; and the legal profession and advocacy are tightly held by logic. Then, why should we continue addressing the Judges of the Supreme Court and the High Courts as "My Lord". There is no 'lord' in the 'Sovereign Socialist Secular Democratic Republic' constituted by the 'People of India'. In India, nobody is specially born. An Indian Judge only does a public act in the seat of justice. The framers of the Constitution did not impose a 'lord' on the people of India. In fact, the Constitution dethroned 'the Lord'. This, I say with a touch of authority. Nobody should be spoiled by acclamation, or lavish flattery. And, flatterers are said to be the worst kind of enemies.

In the United States of America, Justices are simply referred to as Mr. Justice so-and-so and the appellation of My Lord is not at all used by counsel. This is recorded by Sri. T.R. Andhyarujina, toliis arable "Studying the U.S. Supreme & Court's Working". ((1994) 4 SCC Journal S.1) Sri. T.R. Andhyarujinawas at the relevant time Senior Advocate and Advocate General of Maharashtra. Why are we, the Indian Lawyers, shy of discarding 'my-lording'? Why should we presume that we are being lorded over?

Indian lawyers had raised this question more than thirty years ago. The Supreme Court of India had been alerted on the subject. On the mode of addressing the Court, Acting Chief Justice of India, Sri. J.M. Sholat, had written to all the Chief Justices of the High Courts, on 19.4.1973, as under:

"After receiving replies on the above subject from almost all the Chief Justices of the High Courts, a Meeting of the Full Court of the Judges of this Court was held on March 12, 1973. The meeting decided that the Judges and the Chief Justice of the Supreme Court may be addressed by the members of the Bar as 'Mr. Justice' and 'Mr. Chief Justice' respectively, and when addressing the Court the form of address would be "this Honourable Court". It was also agreed that where in the course of arguments it becomes difficult to address a Judge as 'Mr. Justice' he may be addressed as "Sir".

"In consultation with the Bar Association here it has been decided to introduce the new mode of address on and from May 1,1973.

"I suggest that a uniform mode of address in the Supreme Court and in the High Courts would be proper".

Referring to the letter of the Acting Chief Justice of India, Acting Chief Justice of the High Court of Kerala, Sri. P. Govindan Nair, had addressed letters to the Advocate General and the President of the Kerala High Court Advocates' Association, as under:

"I am enclosing a communication from the Acting Chief Justice of India which is self-explanatory. In this connection, I recall our talk this morning. In the light of that, please note that with effect from the 1st July, 1973, the Judges of the High Court may be addressed by the members of the bar as 'Mr. Justice' and the Chief Justice as 'Mr. Chief Justice'. If it becomes difficult to address a Judge as 'Mr. Justice' in the course of arguments, he may be addressed as 'Sir'. The form of addressing the Court may be 'this Honourable Court'. Please inform the members of the Bar accordingly.

"I am considering your suggestion for introducing similar methods of address in the Subordinate Judiciary".

It was for the lawyers of the Supreme Court and of the High Courts to follow the suggestion. But none followed it. Why? Chronicity, in my book. Augustine of Hippo said: 'Habit, if not resisted, soon becomes necessity'. I invite the readers of this article to come out with their assertive response.

I should think there is an element of fawning in frequent 'my-Lording' while arguing. I am only expressing my views in a language of careful and respectful moderation. Sri. T.R. Andhyarujina has recorded the free and forthright debate between Court and the Counsel in the United States Supreme Court, as opposed to 'the obsequiousness often seen in our Courts'.

As far as 'WE, THE PEOPLE OF INDIA', are concerned, 'Lording over' is, verily, an anachronism. 'Lord' is an institution of inheritance. We have to set a new benchmark for legal interaction between the Bench and the Bar, as the judicial system is divided, though without a wall. Close your eyes and imagine a court-room.

ART OF ADVOCACY*

(By T.P. Kelu Nambiar, Sr. Advocate, High Court of Kerala)

It is not only my duty, but privilege and pleasure, to be here, to address you, in connection with this function, on the topic, "Art of Advocacy", with my 50 year old arguing throat.

I am neither an optimist nor a pessimist. I am a realist. And, a realist does not hesitate 'to reveal ultimate degradation', to borrow a piquant expression from the Punch. I shall try to say much in a few words, remembering the paradox of being a lawyer.

Let me begin by emphasizing the obvious. It is time for introspection over the lawyers' 'infinite book' of advocacy, remembering that advocacy is not a commodity available for purchase, and the Court is not a margin-free market. Neither is 'advocacy' the most beautiful word in English. We have to wait for the moment when we hear the call: 'Advantage Advocacy'. In these days, when we are in the world of high end mobile phones, a study of the situation makes disquieting projections about the future of advocacy. We do not know when advocacy is going to see the proverbial light at the end of the tunnel; and when the legal profession is going to see an advocate who looks like Charles Boyer and speaks like Winston Churchill.

This address is a conglomeration and conglutination of the several speeches delivered by me, at various places, on diverse occasions, and my several writings, published in various Law Journals and Souvenirs, and my own Miscellanies, such as The Importance of Being a Lawyer; The Lawyer in the Making-Problems and Panacea; Art of Advocacy and Professional Management; Legal Ethics and Professional Conduct; The Importance of Building up a Law Library; Quo Vadis Legal Profession; The Bar and the Judiciary in the Emerging Millennium; The Agony and Ecstacy of the Legal Profession; Bar, Bench and the Gap; Law, Language and Library; Advocacy Muffled, Crippled and Stifled; Cry Noble Profession; In Search of Advocacy, etc.

Advocacy is not baby-talk. Advocacy is the armour of a lawyer. The arguing toungue, with a voice of experience, is the life-line of the legal profession.

Advocacy is the dynamic aspect of law practice. A case has to be argued with precision. And, command of language is essential for effective advocacy. Therefore, a lawyer should be comfortable in-the English language. Sir Winston Churchill is reported to have told his son Randolf, about certain poor orators: "Before they got up, they do not know what they are going to say; when they are speaking, they do not know what they are saying; and when they sit down, they do not know what they have said". Substitute 'lawyers' for 'orators'.

It is time to get serious on advocacy. Lawyers should shed the 'look-judge' policy. "I wish your wish" - lawyers do great harm to the profession and the art of advocacy. "As Your Lordship pleases", is the line often of lawyers. Lawyers should remember that the Judge's role is a participatory one. Judges should remember that their role is not isolatory. The amity between the Bench and the Bar does not arise out of any treaty, or out of fear, but out of reciprocal respect. Advocacy should never be treated as one in the dock. A lawyer has to keep his chin up while arguing; and set right his spinal column. A lawyer will have to come to terms with his identity; and should strive for 'advocacy uncovered'. An Advocate has to display analytical skill and prowess; and put complex ideas in simple language; and the brevity of his argument should say it all. Not everyone has to be loud to be heard. An advocate should never function as a 'speed merchant'. One who had seen and heard Barrister M.K.Nambiar, the genius of advocacy and legal profession's original material, arguing cases, would understand the meaning of the above statements. What goes around finally does come around, is the only consolation. Advocacy has to borrow from its own past. I look back to the past with a sense of longing and forward to the future with a sense of unease.

The legal profession is admirable. According to Disraeli, himself a master of argument, an advocate is one who is able to "illustrate the obvious, elaborate the self-evident, expatiate on the commonplace". This calls for perception and clarity, patience and determination in the presentation of the essential details with emphasis, order and significance, using common sense especially. Do not use bad prose. Your arguments should not be long on facts but short on matter. If you fail to measure time when you argue, your argument is apt to be measureless, also, with no result. 'Blogosphere' advocacy will not win. Advocacy is not solemn jugglery. Argue, galloping thoughts, gradually; provide clarity to the confused. Use your brain, not its borderland. Be steadfast, never stubborn, remembering that hard rock gives soft water. You may hiss, but not bite, like the proverbial snake. Be bold, and a man of amazing agility; but remember that you cannot equate contempt with courage or insults with independence. The difference between use and abuse of advocacy should be clearly and carefully discerned. This discernment counts a lot when the assets and liabilities of your law practice are determined. To culture your profession, you should study well, remembering that a Court room is not a touch screen kiosk. Do not pester God with demands for advocacy boon. Try to be dignified; and an uncomplicated lawyer. Do not confuse victory with success. These are days of construction of monuments to the mouse and the monkey.

I have an advice to the young wing of the protection. And, I cannot put it better than making a rehash of what I said, in November, 2004, when speaking on the subject "In Search of Advocacy", on the occasion of the Sixth Annua! Day Celebrations and All India Moot Court Competition, of Samafha Law Society, at Ernakularn: "Junior lawyers seem to require a huge dose of self-brief. Young lawyers should not conduct themselves as 'marketing boys', or infiltrators in the profession. Law libraries are used as "De-stress Zone" only, forgetting that books are the tools of a lawyer. A lawyer studies to live, not lives to study, unlike Francis Bacon, who lived to study, and not studied to live. The importance of the library of books had beer, poken of by Shakespeare, in "The Tempest" and "Titus Andronicus"; Edward Gibbon, in 'Declined and Fall of the Roman Empire'; Milton, in "Paradise Regained"; and by Lord Samuel, Martin Tupper, John Sheffield, William Cowper, Oscar Wilde and Macaulay. Therefore, a lawyer's library should contain not only Lindley, Palmer, Russell, Jarman, Kerr, Fry, Wade and Maxwell, but also Shakespeare, Galsworthy, Mathew Arnold, Hazlitte and Dr.Johnson. This aspect has to be noted especially by cub lawyers. Most of the lawyers of today seem to suffer from 'dyslexia'. The shift from print to screen has a damaging effect on reading habit".

The bane of advocacy, as far as the High Court is concerned, is Mandamus Fest; and, generally, it is 'do-little' Bar and Bench.

Time and again, I have been exhorting, through writings and speeches, that advocacy should be upgraded. For the Kerala Bar, it is time to get serious on advocacy, so that litigants in Kerala need not be lawyer-watchers expecting migratory lawyers from Delhi, Bombay and other centres.

I venture a suggestion. Every senior lawyer should constitute and head a Planning Board, so to say, consisting of his juniors as members, to conceive and decide upon the strategy and method of persecuting each case before Court. This would benefit both seniors and juniors; and, result in the upgradation of the art of advocacy.

A happy life for an advocate does not consist of "inherited wealth, no need to earn, fires that continually burn and fields that give a fair return", to use an expression of the Spanish epigrammist Martial.

Let me say, as Martin Luther King said: "I have a dream". And, that is of 'embedded advocacy' of the Kerala Bar, by reducing advocacy deficit. Let us chase the dream. Mere arguing, is not advocacy, as shaking the leg is no dance. A Memorandum of Understanding (MOU) is needed for harvesting advocacy. Advocacy is not moral instruction aimed at the soul. An advocate is not a hunter-gatherer. Judges should realise the perils of advocacy gag/ muffling. Now-a-days the bar is the victim of advocacy censorship.

I request you to ponder over the great profession on the lines of bringing credit to advocacy and credibility to the legal profession. We should try to revive and re-live the splendour of the profession; and regain its glow and flash. We should never allow the profession of law lose its zing and zest, vitality and virtuousness, excellence and exuberance. And, beyond and above all this, we should be honest with ourselves and the others; and, every lawyer should read, understand, and adhere to, the exhaustive rule book on professional conduct and etiquette. There is no pension for lawyers. But, certain lawyers get death-cum-retirement gratuity, that is 'reputation'.

I dedicate this address to great Hortensius, who of all the advocates of antiguity, said Cicero, had given himself up most exclusively to the legal profession; and, I add, to the art of advocacy.

I am grateful for the opportunity, and thankful to your tolerance. Thank you.

Review of Books

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*. Keynote Address delivered on 8.1.2005, at K.P.S. Menon Hall, Kottayam at the State Conference of the Kerala Bar Federation.