Anz Grindlays Bank Ltd v. Directorate Of Enforcement (2005 (2) KLT 876 (SC) : Is It a Good Law In Prosecuting And Punishing Companies?

(By John Vadassery, Advocate, Ernakulam)

Now, by Supreme Court judgment in the captioned case, companies can be prosecuted even for those offences for which the sentence of imprisonment is a mandatory punishment. A radical departure from the hitherto existing concept, which did not allow to do so. The reason was simple: a company cannot be imprisoned as in the case of a natural person. However, it was always being remained as subject of academic and judicial discussion whether the present law can be applied to the extent to prosecute a company - as artificial person - for all offences, which it is capable of doing. The majority view of the Constitution Bench in this case gives an afirmative answer to the moot question with the aid of "statutory construction". It says that legislative intention is always to prosecute and punish any "person" - both natural & artificial person - for any offence. Where "imprisonment and fine" has been prescribed as sentence for an offence it has to be construed as "imprisonment or fine" and in the case of companies, fine shall be imposed on them by way of punishment in lieu of imprisonment.

Could the judgment make a settled position of law?

The concept of corporate personality got first time recognition in the famous Salomon v. Salomon & Co. Ltd case ((1897) AC 22). The offshoot of this legal recognition was that the companies started to be considered as an effective commercial vehicle for the rapid economic development of the countries. In the present era of W.T.O. regime, the corporate entities not only influences the economic dimensions of societal life but influences the social, political, cultural and religious dimensions of societal life too. The implication is that the impact of the activities of natural person and artificial person on the society getting more convergent. Hence, should natural person as well as artificial person be subjected to same magnitude of punishment for the same offence?

Conventional wisdom always relates offences to individuals. Such a relation is not being adequately recognized in the case of artificial persons. That is why, even if a particular punishment is prescribed for the wrong done by a company, such a prescription seems to have drafted in the same "Psychological Mind Set" which prescribes punishment for individuals. In result, there is no unique provision in Indian penal laws that are exclusively applicable to companies taking into account their separate existence.

Can same magnitude of punishment for the same offence been sured if the penal provisions, originally drafted giving prime concern for natural persons (human beings), applied to artificial person?

Like majority in the case (3-2), the minority also observed that legislative intention is always to prosecute and punish a 'person' for any offence. However, the minority view is that construing "imprisonment and fine" as "imprisonment fine" virtually amounts to rewriting of a penal section. They doubt its uniform application in all situations that may arise. Hence they feel it to have an altogether new set of penal provisions applicable to companies. In support of this fact, they notice the legislations in countries such as France, Australia, Netherlands etc.

The opinion of minority seems more logical and consistent with earlier decision of judiciary ((2003) 11 SCC 405). But the idea is not novel. Besides judiciary, Law Commission had brought the notice of the Legislature for the need of having a different set of penal provisions for companies. But the Legislature remains hesitant to bring changes in law ignoring the identity and relevance assumed by the companies over the years since the days of Salomon. As a corollary to it, now judiciary has been compelled to act upon the issue at hand with the aid of statutory construction. But, does the decision really provide dynamism to law? Can the penal provisions originally drafted for individuals perfectly be twisted to suit to punish offender companies for all offences and in all situations to come? Does the decision further the concept of "equality" as enshrined in Article 14 of the Constitution?

The discussion on the subject is to continue.

Requiem For a Legal Collosus

A tribute to Justice P. Subramanian Potti, his life and message

(By Advocate Govindh K. Bharathan)

What is one to write about a colossus who strode through annals of the judiciary and left his imprint forever on the legal psyche of the State? What is one to write in praise of a master craftsman who shaped several legal careers, into his mould of activism in the field of law and taught them to use it for the benefit of those to whom the courts were the last resort. What can I write about one who blazed a trail like a comet through my life when my legal career was at its infant stage and gave me courage and confidence to face a new path, a new future? Justice P. Subramanian Potti, my master in the field of law saw in me what I could not see in myself, the making of a lawyer and having set me on my path he gave me the boost which he had given many of his ex juniors, establishing them firmly in the legal firmament.

Justice P. Subramanian Potti lived a life which, though centered in law, with the severe restrictions placed on social contact and activities of Judges, was resplendent and many hued. As District Governor of the Lions he shattered the elitist image of the organization and started a revolution, which popularised the Lions movement, bringing its immense resources down to the realm of the common man. I was member of the Lions Club of Cochin East when he was elected District Governor after a bitter and hard fought election. The Club was understandably agog anticipating the Governor's visit, since one of its Past Presidents had become the District Governor. All of us turned up in formal suits. To our dismay, Justice P. Subramanian Potti appeared in a silk jubba and dhoti for the function. Never before had a District Governor attended a Club, which he was formally visiting, other than in formal attire. He also delivered the District Governor's address in Malayalam. With this he heralded an era where Club meetings throughout the District could be conducted in Malayalam. Needless to say, this threw open the Lions movement to several areas in Kerala where it would not have otherwise spread, since most of those who were imminently suited to be Lions were not conversant with English. I had watched him closely in the social and cultural organizations that he had headed and found this strain of compassion in every project he sponsored and executed. He had this inherent trait of leadership, which took him effortlessly to the top of any service, cultural or fraternal organization that he joined.

On the Bench his decisions were flavoured with a subtle touch of humanism. The Westminister System of justice was, as far as he was concerned, only the background against which Indian Law had to find its own individual path and expression. Law as far as he was concerned was meaningless if it did not accommodate the aspirations of the common man. No litigant went empty handed from his Court. It was his concept that having come to the Court, which was the last resort of the common man, he should be given some relief however small it be. His mastery of the law was such that he used to shape it to meet new situations and moulded to fashion new reliefs. He was perhaps the only Judge to pronounce a Judgment in Malayalam.

Justice Subramanian Potti's landmark decision in what is known as "The Rajan Case" (Eachara Varrier v. Secretary, Ministry of Home Affairs -1977 KLT 335) forever changed the face of Habeas Corpus Petitions throughout the land. The Court was left with the momentous task of taking a decision whether evidence could be let in support of a Habeas Corpus Petition. This was because the Court was satisfied that Rajan, a young Regional Engineering College student had been taken into custody and that there was no positive averment from either the Police or the State as to his whereabouts. The Bench before whom the case came up, i.e., Justice P. Subramanian Potti and Justice V. Khalid found itself in the unenviable situation of finding no judicial precedent, where in a petition of Habeas Corpus, the High Court had to undertake the task of finding out the truth or otherwise of the very fact of detention itself. Instead of proclaiming the helplessness of the Court under these circumstances, Justice Subramanian Potti laid down as follows for the Bench:

"We have not been referred to any authority nor have we been able to locate any case where the court had to undertake the task of finding out the truth or otherwise of the plea of the detention itself. But such a situation has arisen here. But so long as it is the duty of this court to protect the freedom of a citizen and his immunity from illegal detention we cannot decline to exercise our jurisdiction merely because a dispute has arisen on the issue of the detention."

Relying on two decisions of the Supreme Court, Mohammed Hussain's Case (AIR 1964 SC 1625) and Jage Ram v. Hans Raj (AIR 1972 SC 1140) which had opened the way for an enquiry into facts in Habeas Corpus petitions, but which (with great respect) had not gone far enough, Justice. P. Subramanian Potti decided to take evidence in the matter and from the evidence established beyond doubt that Rajan was indeed taken into custody. The Court then issued a writ of Habeas Corpus to top ranking officials of the Police Department, the Secretary, Home Affairs and the Chief Minister to produce Rajan in Court on a particular day. The Court concluded by laying down that if for any reason the respondents were not able to produce Rajan on that day the Court would pass further orders and to that extent the Court need not treat the petition as closed. Justice Potti's Judgment ended with these momentous words :

"We know that we are adopting a very unusual procedure for which there is no parallel or precedent. But our power to do so cannot be in question, for, it is to enforce the object of finding out the truth and giving relief that we are adopting this procedure. We cannot think of a better device by which the Court's conscience would be satisfied:

"It is unfortunate that the respondents have not viewed the matter with the sense of responsibility expected of them at least when their attention was drawn to the serious situation. We once again reiterate that such responsibility cannot be disowned as if it is some stray act of some police officers somewhere. We do fervently hope that the guilty would meet with punishment though it is not our province to impose any."

What followed was history. The indomitable upsurge of public consciousness resulted in the Chief Minister of the State stepping down. The arrogance of the Executive had been reined in by the Judiciary, which stood by the citizens right to freedom, breaking new ground in the annals of the fight for human rights.

It was this capacity to mould the law to the cause of human dignity, freedom and justice that distinguished Justice P. Subramanian Potti's Judicial pronouncements. Sri. M.K. Damodaran,. Former Advocate General in his reference before the High Court after Justice Potti's demise said:

"When he entered the portals of the ivory tower that judiciary was, he threw open the doors to the citizens. He believed that Judges cannot and must not doubt their strength to conserve, without the sacrifice of any, all of the guarantees of justice and fairplay and simple human dignity, which have made our land what it is. Throughout his career on the Bench, he crusaded for the cause of the individual vis-a-vis the might of the State. This he did with his characteristic power of persuasion and personal charm - qualities that established his strong reputation - which he brought to bear on his colleagues in the Bench",

"There was a time, when the higher education in the State was in the grips of the elite of this land, who with their economic power could doctor even the mark lists of University examination. With his inimitable knack of cutting the Gordian knot, Justice Potti waded into the cess pool of University examinations and commenced a cleansing operation. Thanks to Justice Potti, the Entrance Examinations came to stay and the brilliant children of the not so rich, belonging to the common class, can also now aspire to realize their dreams of higher professional education."

Justice P. Subramanian Potti left Kerala albeit reluctantly to take over as the Chief Justice of the High Court of Gujarat. On his retirement he started practice before the Supreme Court of India. He had mellowed with age and his step was slower, but his spirit remained indomitable to the end. When he left us we felt the void of his physical absence but vowed to ourselves that we would carry on his legacy of courage to seek to shape the law if necessary to meet the ends of justice.

As a Judge, his commitment to the poor and the down trodden led him to add new facets to the law, to align it more with the realities of the life of those who were normally outside its precincts. To him the law was not a Procrustean bed but a rich pliable and highly adaptable base where reliefs could be moulded to suit situations to meet the ends of justice. He had experienced deprivation when he was young, and had perhaps sworn that he would prevent anyone else from experiencing the trauma of being unwanted.

His message was that the Constitution had placed authority in the Courts to protect the citizens rights to justice, liberty, equality and fraternity and it was the obligation of the Higher Judiciary of the land to act as sentinels of human rights whenever and wherever any serious threat arose to it. His Judgments will bear testimony to the fact that he had dedicated his life to upholding these principles.

Comments on Kerala Buildings (Lease & Rent Control) Act, 1965

(By P. Bhaskaran, Advocate, Guruvayoor)

The Kerala Buildings (Lease & Rent Control) Act 1965 (hereinafter called the said Act) is a beneficial piece of legislation. The said Act is intended to protect the tenants against unreasonable eviction by landlords. The said Act also gives reasonable protection to landlords for getting fair rent and to get back possession of the tenanted premises on the grounds as contained in the said Act.

As the name of the said Act indicates, the same is applicable to the whole of the State of Kerala. Today the State of Kerala consists of several villages. Panchayats, Townships, Municipalities and Corporations etc., and whereas when the said Act was enacted there were mainly villages, Panchayats and few Municipalities, and only two Corporations namely, Trivandrum and Calicut. Many Panchayats, Municipalities and Corporations emerged thereafter basing on increase in population. On account of increased demands for housing in all the areas and changed habits of living occasioned on account of environmental changes, old houses vanished replacing with multistoreyed buildings/high rises. .

Economic conditions of tenants have also undergone changes thereby increasing the capacity of the tenants to pay higher rents basing on the comforts he gets from the tenanted premise/accommodation provided to him by the landlords in multistoreyed buildings/high rises.

When the said Act was enacted by the Legislature in the year 1965, the provisions contained therein were meant to protect the poor tenants. Today the concept of multistoreyed buildings have replaced the old and outdated houses. People from different parts of the State move from villages to towns, besides people from other States and even from overseas countries come and settle in different towns and cities in the State and look for comfortable accommodation according to their pockets. Accordingly it has become necessary to amend the said Act to suit the present day requirements.

The provisions as contained in the said Act is being followed by the Rent Control Courts, Appellate Courts etc. supported and supplemented by the decisions of the High Court and Supreme Court. Admittedly the said Act was enacted about 40 years back. By efflux of time, lot of changes have taken place, warranting amendment or repealing and re-enacting the said Act as was done in other States to compact with the present day needs, but it is pertinent to note that the said Act and the provisions made there under remains the same supplemented by decisions of the High Court and Supreme Court.

It is also pertinent to note that the Courts have its own limitations in interpreting and applying the provisions of the said Act.

As has been observed by the Hon'ble Supreme Court of India ((1987) 4 SCC 1) that "there is no presumption in all cases the tenants are weaker section. By elapse of time the tenants (atleast many of them) doing business in Commercial Buildings taken on rent are far more affluent financially than the owners of the buildings. Though the rent control legislation is stated to be a beneficial one, it must be reasonably just and fair".

The National Housing Policy approved by the Central Government recommended that appropriate amendments in existing laws and regulations be carriedout for creating an enabling atmosphere for housing activities in the Country. A number of expert bodies such as, the Economic Reforms Administration Committee and the National Commission on Urbanisation had recommended reforming the rent legislation in a way that balance the interests of both the landlords and tenants and also that stipulates future construction to meet the growing demands for housing.

On the basis of the various recommendations of the experts and also after a series of consultations with the State Governments, the Ministry of Urban Development, Government of India had prepared a Model Rent Control Legislation and had sent to the States for consideration.

Accordingly, it is necessary particularly in view of the changed circumstances as stated herein above, the said Act needs either amendment or repealing and re-enactment with the object of regulating further the incidence of tenancies and relationship between landlords and tenants.

In S.11 of the said Act dealing with eviction of tenants, provision has been made for issue of notice by the landlord to the tenant in respect of default in payment of rent (See S.11(2)(b)) and for transfer of tenancy or sub-letting the tenanted premises or part thereof to any person without written consent from landlord (see S.11(4)(i)). Several sub-sections under S.11 of the said Act provides other grounds under which the landlord can get the tenant evicted. The said section or any other sections contained in the said Act makes any provision for notice of eviction or a notice of suit determining the tenancy and relinquishing the relationship between the landlord and tenant before filing a petition for eviction of the tenant under any of those grounds. In all fairness, eviction proceedings under any of the grounds ought to be commended following a notice to quit by the landlord to the tenant. As there is no provisions in the said Act for issue of any notice (either mandatory or otherwise) by the landlord to tenant, except under the grounds stated hereinabove, expressing intention of the landlord to evict the tenant and the grounds thereof, the tenant has no opportunity to know the grounds or the case the landlord is going to allege against him, until he is served with a summons along with the copy of the eviction petition from the Rent Control Court.

On the basis of the model rent control legislation many of the States have either amended the existing Act or repealed and re-enacted the Rent Control Act, incorporating the suggestions as contained in the model rent control legislation, which inter alia contains (1) provision for notice before commencement of any proceedings for eviction of the tenant by landlord (2) fixation of fair rent (3) periodical enhancement of the rent and (4) payment of service and maintenance charges etc.

In all fairness, an eviction proceedings under any grounds should follow by a notice to the tenant by the landlord, expressing his intention to evict the tenant and the grounds thereof. The said Act being a beneficial piece of legislation, non-incorporation of the provisions in the said Act for issuance of notice to quit and the grounds thereof prior to commencement of eviction proceedings, is as such amounts to denying the right of the tenant to know the grounds of his eviction.

There are several decisions by the High Court and the Supreme Court relating to notice under S. 106 of Transfer of Property Act, some of which are stated below:

1) (1981) 3 SCC 127 lays down that notice under S.106 of Transfer of Property Act is not necessary, in case of self-contained Rent Act in States.

2) AIR 1976 SC 500 lays down that eviction de hors the grounds in State Rent Act. So notice under S.106 of Transfer of Property Act is necessary.

3) AIR 1979 SC 45 lays down that in view of parallel provisions in the State Act, the notice u/S. 106 of T. P. Act on the landlord has become redundant.

4) 1991 (2) KLT 862 Notice is not mandatory for eviction u/S.11(3) of the said Act.

5) 1997 (2) RCR 716 SC. In this Case landlord sent two notices. Eviction Petition was filed on the basis of the second notice. The Court held that the landlord ignored the first notice and the claim can be allowed.

6) 1994 (2) RCR 236 SC - Non-mentioning of the ground of the eviction in the notice disentitle the landlord's claim.

7) 1972 KLT 223 - It is not a jurisdictional condition to issue notice to quit the building by the tenant. So if the tenant feels that the notice issued to him is insufficient or no notice was issued, it should be raised before the Rent Control Court. It is not possible for the tenant to raise such issue for the first time before the High Court.

8) 1972 KLT 720 - Plea of want of notice contemplated u/S. 106 of T. R Act cannot be raised first time before the Revisional Authority.

9) 1972 KLT 720 - Notice of termination of lease is necessary in the case of the contractual tenancy.

The decisions of the Supreme Court and High Court are based on given facts of particular cases. So to make the Act more friendly between the landlords and tenants and to achieve the objects of the said Act, a notice determining the tenancy and intention of a suit being instituted i.e. filing of eviction petition against the tenant, in case of default of compliance of the requisition as contained in the said notice should be made mandatory.

As has been held in 1990 (1) KLT 104 the procedural provisions of Civil Procedure Code may be made applicable to Rent Control proceedings, in view of the C.P.C. Amendment Act 1999 (amended by C.P.C. Amendment Act of 2002), in the absence of any express provision to the contrary or in the absence of a conflict between the provisions of C.P.C. and the Rent Act and the Rules made thereunder.

The notice is a condition precedent for filing a suit, within the meaning of Order 6 Rule 6 of C.P. Code and should be implied in the pleadings as also in cause of action. For filing a petition under Rent Control Act, such notice should also contain the grounds of eviction and intention of suit.

A valuable right of the tenant to know the grounds of eviction and/or defaults committed by him, if any, which the landlord is going to allege in his eviction petition should be made known to the tenant, prior to commencement of eviction proceedings, otherwise such right is taken away by non-issuance of the notice of eviction.

In fact, if a notice is issued to the tenant by the landlord prior to commencement of eviction proceedings, the tenant gets an opportunity to comply with the demands as contained in the said notice, and upon receipt of the notice the tenant may even quit and vacate the tenanted premises and deliver back possession thereof to the landlord, which will avoid unnecessary litigation between the parties., and of course, such a notice is neither going to delay the proceedings nor takes away any right of the landlord.

Ss.5, 6 and 7 of the said Act deals with (1) determination of fair rent, and (2) enhancement in fair rent etc. Rent Control Courts have been given power to fix fair rent on the basis of property tax or house tax and if there is no property or house tax available for fixing fair rent, the Rent Control Court may consider prevailing tax in the locality for similar accommodation. So the ingredients for fixation of fair rent is only the rates and/or taxes. The said Sections further lays down that once the fair rent is fixed enhancement in rent can be effected only when increase in house tax or property tax as the case may take place or alterations/developments/ improvements etc. are carried out by the landlord to the tenanted property.

It is pertinent to note that where the old and existing rent being paid by the tenants is very low comparing with the present market conditions, no prudent landlord will invest further money for development of the tenanted premises. Obviously the landlords expect reasonable return on his investments and where there is no reasonable return on investments, not only landlords will develop his tenanted property, but others will also hesitate to invest in housing industry. This is the reason for many old houses remaining in the same condition they were lot out, for decades together.

Other States who have adopted Model Rent Legislation, in Cities/towns etc. where the concept of multi-storyed building have come up, the allottees/occupants are made to pay the services/maintenance charges for maintenance of the common areas and common parts provided in the building for common use and enjoyment, besides payment of rates and taxes in respect their units/apartments in proportion to the area occupied. In respect of single /double storyed buildings, where there are more rooms/flats/units etc, there also the tenants/occupants are made liable to pay service maintenance charges and municipal rates and charges proportionately. The aforesaid provisions for payment of service/maintenance charges and rates/taxes are clearly incorporated in the Rent Act as well as Municipal Act, so as to make the same binding on the parties.

The need for accommodation is increasing daily and to attract investment in building industry it is necessary that legal protection be there to the landlords for proper return on investment. The Fair Rent for a year may be fixed on the basis of investment on construction in a particular year in which the building is constructed, instead and in place of the existing system of determination of Fair Rent, because the construction cost varies from year to year and increase in property tax is very meagre and not enough to cover the increase in value of the property.

Fair Rent once fixed may by legislation be automatically enhanced at a fixed rate/percentage periodically, pay 5% after completion of every 5 years, making it obligatory on the part of the tenant to pay increased rent periodically. Provision may also be made in the Act for payment of service/maintenance charges by tenants and also make the landlord liable to maintain the rented houses in habitable condition. In this process, disputes between landlords and tenants will automatically be reduced and the relationship will also remain cordial and healthy.

In the changed circumstances, it is time for the Legislature to consider the following aspects to keep the said Act in parity with Model Rent Control Legislation to maintain cordial landlord-tenant relationships and also to attract investments in house building industry.

1) Whether S.11 of the said Act is to be amended in order that the tenant may know the grounds of his eviction, by a mandatory notice by the landlord to the tenant calling upon the tenant to vacate and hand over vacant possession on the expiry of notice period;

2) Whether Ss.5,6 and 7 of the said Act is to be amended specifying the method of fixation of fair rent;

3) To make provisions for payment of service/maintenance charges and rates/taxes by the tenants in proportion to the area occupied, fixing liability on the landlord for proper maintenance of the house.

4) Whether to repeal the said Act and bring out new legislation to compact with the changed circumstances instead of amending the said Act.

Last but not the least the rights and obligations of the landlords and tenants to be further streamlined so as to maintain harmonious relationships and to secure better returns on investments in Building Industry, which will ultimately reduce the burden on the Rent Control Courts.

Felicitations to Hon'ble Chief Justice Mr. Justice Rajeev Gupta

With great pleasure, we extend our respectful and cordial felicitations to Hon'ble Chief Justice Mr. Justice Rajeev Gupta, on his appointment as Chief Justice of Kerala High Court.

Chief Justice Rajeev Gupta is a harmonious blend of genius, overflowing goodness and exceptional integrity. He is truly great, of deep erudition and mighty intellect, but with all, Simple as a child, loyal to the Bar, of considerable personal charm of manner inborn and not put on.

With a large store of learning, experience and forensic ability, your Lordship became one of the humble servitors of the temple of justice, where sit enshrined man's eternal quest andeverlasting hope about ten years ago. It could undoubtedly be stated of his Court as was said of Lord Cockburns's Court," a Court where every man felt himself in the presence of a gentleman, whose genial courtesy made all things genial, whose exquisite learning captured all men's love, whose sunbright Justice brightened every cause and sent even him who has lost away content. Your Lordship believed then as now that courtesy begets courtesy and that the high watermark of a gentleman is to extent courtesy to all around.

It is said that a Judge may pass through three stages of development in his career. When his is first appointed the Judge is very anxious that he should do justice in all the cases that come before him. In the second stage, he is quite sure that he is doing only justice and nothing but justice. In the third stage, he does not care whether he is doing justice or not. We are sure Mr. Justice Rajeev Gupta will throughout his tenure of office remain in the first stage itself doing justice without fear or favour, in fear of God and in fear of no man.

The fine qualities exhibited as a Judge, coupled with the long and varied experience will no doubt, stand your Lordship in good stead in the performance of the onerous task bestowed on you. Our very best wishes go to the new Chief Justice. May his new career as Chief Justice be crowned with success.

"Not forgetting those things which are behind

and reaching fourth unto these things

which are before,

He would press towards the mark........."

Senior Counsel Strutting Like a Peacock Whether

 a Model to be Emulated?

(N. Dharmadan, Sr. Counsel, High Court of Kerala)

A lawyer by virtue of his position, as an officer of the Court having public and professional responsibilities, belongs to the privileged class. He is not only rendering assistance to the Court in the administration of justice but also giving professional service and advice, for which he is entitled to be paid. Lawyers are agents not of the man that pays them; but are acting in administration of justice and they are bound to exercise an independent judgment and to conduct themselves with a sense of personal responsibility. He is in fact a "connecting link between the community and administration"'1. If he fails to act with reasonable care and caution, he is unfit to enjoy the privileges conferred upon him by law and serious breaches will be visited with punishment(AIR 1924 All.258).

S.16 of the Advocates Act creates two classes of advocates, namely, Senior advocate and other advocates like the English Bar, which is divided into two ranks (i) Queens Counsel, who are called leading counsels and (ii) Barristers, who are called Junior Counsels2. S.23 of the Act provides for a right of "pre-audience" for Senior Advocates among others. They are wearing what is described as the Queens Counsel, (QC) gown, short coat or jacket decorated with frills and fineries to make out a different class of advocate.

But the rules in Chapter IV under S.49(1)(gg) of the Act, do not provide for any difference in dress. Advocates other than lady advocate shall wear.

(a)  “A black buttoned up coat, chapkan, achkan, black sherwani and white bands with Advocates Gown, or

(b)  A black open breast coat, white collar stiff or soft, and white bands with Advocate Gowns. In either case long trousers (white, black striped or grey) or Dhoti".

So the Advocates Act and the rules only prescribe a common dress for all advocates, no different dress for a senior advocate than that for an advocate. But even before the Advocates Act came into force, the senior advocates have been following the long standing practice of wearing a gown and coat similar to that of a QC3.

Under the existing rules there is no justification for a Senior Advocate to wear a gown different from the normal gown worn by all others advocates. However, the wearing of a gown with its overflowing arms, back flap, embroidery and frills place the Senior Advocate in a distinct advantageous position because it creates an impression among the clients and general public that the Senior Advocates are superior and get better and favourable treatment from the Courts. In fact some Senior Advocates often capitalize this position for getting priority in hearing, postings, adjournments etc. Some are strutting like a Peacock.

Of course Senior Advocates constitute a "different class" within the advocates. Rules framed under S.16(3) and S.49(1)(g) of the Act impose certain restrictions in the matter of their practice of profession of law. The Supreme Court also in exercise of the powers conferred by Art.145 of the Constitution of India framed similar Rules known as Supreme Court Rules, 1966. Broadly speaking the restrictions are that a Senior Advocate shall not file a vakalath or act in any court or Tribunal in India, appear without an advocate on record, accept instructions to draw pleading or affidavit etc., accept directly from a client any brief or instruction etc.

They can enjoy a right of "pre-audience" as provided in S.23 of the Act. The right of "preaudience" in S.23 has been explained by Allahabad High Court as the right of advocates inter-se priority and "pre-audience" among them on the basis of seniority with special reference to Attorney General, Solicitor General, Advocate General, Senior Advocate, Other Advocates etc. This section does not create a bar on a junior advocate to conduct a case where circumstances warrant i.e., when no other advocate is present to conduct the case on behalf of the client. In fact this is a matter to be settled among advocate themselves and the Judge hearing the case normally exercises the discretion. It is the practice in the Chancery Division of the High Court to hear unlisted motions "according to the seniority of the counsel as at present irrespective of the seniority or juniority of the counsel" ((1980) 2 All.E.R.750). There are certain Rules in England governing the precedence or pre-audience of Barristers when appearing in Courts. These Rules are a matter of discretion of the Bench and the etiquette of the profession" ((1998) AC 247).

According to me the right to "pre-audience" has no great significance when compared with the duties and responsibilities of a Senior Counsel by virtue of the "pre-eminence" which he enjoys in the profession. A level headed reasonable senior counsel would never give importance to the right of his "pre-audience" in courts particularly when it is more akin to the prerogative of the Courts controlled by judicious discretion, etiquette and good manners.

A Senior Counsel carry greater responsibilities to the Court and duties to the client. "He should at all times pay deferential respect to the Judge and scrupulously observe the decorum of the Court room" and maintain strict fiduciary relations with his clients under all circumstances. He must act as a "model to the juniors" of the profession. Lord Denning M.R. in Rondel v. W ((1966) 3 All. E.R. 657) said "He (a senior counsel) has time and again to choose between his duty to the client and his duty to court. This is a conflict often difficult to resolve......He puts his first duty to the Court, he has nothing to fear. He must disregard the most specific instruction of his client, if the conflict with his duty to the Court. If he breaks it, he is offending against the rules of profession , and is subject to its discipline..........."

Lord Reid in Rondel v. Worsley ((1967) All. E.R. 993) stressed the duties of a Senior as follows:

"By virtue of the pre-eminence which senior counsel enjoy in the profession, they not only carry greater responsibilities but they also act as a model to the junior members of the profession. A senior counsel more or less occupies a position akin to a Queen's counsel in England next after the Attorney General and the Solicitor General. It is an honour and privilege conferred on advocates of standing and experience by the Chief Justice and the Judges of this Court".

xxx                                    xxx                                         xxx

As an officer of the Court concerned in the administration of justice, he has an overriding duty to the Court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his persona interests".

Following the above decisions the Apex Court held in E.S. Reddi v. Chief Secretary. AP. (1987 (2) KLJ 17 (SC) (SN)) held:

"By virtue of the pre-eminence which senior counsel enjoy in the profession, they not only carry greater responsibilities but they also act as a model to the junior members of the profession. A senior counsel more or less occupies a position skin to a Queen's Counsel in England next after the Attorney General and the Solicitor General. It is an honour and privilege conferred on advocates of standing and experience".

It has been held by the Full Bench of Allahabad High Court in Democratic Bar Association v. High Court of Allahabad, (AIR 2000 All. 300) that "it is expected of an advocate desirous of being designated as Senior that he is aware of the restrictions, responsibilities, duties etc. under the rules framed by the High Court". This legal presumption provokes me to think aloud that any ‘exhortation'/’invocation’ to the designated seniors to remind them of the above would be ‘irritating to Mrs. Grundi’.

The legal profession is noble, but its nobility is disintegrating. It is due to the behaviour and attitude of the present day lawyers. The major qualities like honesty, integrity and sincerity have been only secondary importance. Lawyers now indiscriminately indulge in various tactics and activities unconnected with their avocation for private gain. Whatever may be the reason, the fact remains that there is an irredeemable down fall in the prestige of the profession. I feel that if the Seniors start strutting like a Peacock for catching the eye of the Judge with the object of getting preference or preaudience it can never be a model to be emulated particularly when the Supreme Court in In re Sanju v. Datta case ((1995) 3 SCC 619.) observed "that the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behaviour".

___________________________________________________________________

Foot Note

1. Prof. Brabanti — The Role of Lawyers in Developing Countries "American BarAssocia:. Journal, January 1972 Vol. 58.

2. Halsbury's Laws of England 4th Edn. Vol. 3, para 1128.

3. The Delhi High Court rejected the attack against the use of different dress by Seniors and other Advocates. AIR 2002 Delhi 482.