K. Kunhiramamenon -- Personification of Virtues and Professional Ethics

(By Justice K.P. Radhakrishna Menon)

Kunhirama Menon's name will remain immortal in the history of The Calicut Bar. A brilliant and fearless advocate, he was a colossus among lawyers. He believed in the science of morale in human conduct. He believed in the nobility of the profession. Like Eardley Norton and Sadagopachariar, top criminal lawyers of The Madras Bar, Kunhirama Menon always believed that his clients were "Paragons of virtues" and cases are all foisted on them. And this belief helped him to be committed, dedicated, and devoted to the profession. He was proficient in civil laws also. However his commitment never had crossed the Lakshmana Regha, prescribed by professional ethics. Menon's professional actions reflected the integrity and competence expected of one in the legal profession. He cannot tolerate the lawyers who violate the golden rule prescribed by the legal maxim "Ignorare leges est lata culpa"i.e., To be ignorant of the law is gross neglect. He had no doubt that judges in action also shall always keep in mind this doctorine without which they cannot correct the erring counsel. Kunhirama Menon was one who had surrendered to the unenforceables, which the Rishis of yore had named ‘the Sanathana dharma, to mention a few; love, affection, tolerance, compassion, mercy. He was of the firm view that together with the worldly knowledge one shall acquire spiritual knowledge also. Actions of such a person will be rooted in Dharma. Junior Section of the bar, particularly the juniors in the office of Menon, could find a very noble person in Kunhirama Menon. Menon, to quote Khwaja Sahib of Ajmer, is one who possessed the magnanimity of the river, the kindness of the sun and the humility of the earth. That is why to him legal remuneration was only secondary in importance though the second half of his long carrier spread during a period when humanity as a whole was afflicted by the evils of consumerism.

We are passing through a period unparalleled in the history of mankind. Everything is chaotic and confusing. This set up is brought about by the evils of consumerism. We are in the tight grip of these evils; And consequently our mind is controlled by unrestrained lust, unchecked desire for money and power, anger, greed, delusion and violence. The mind therefore has become your No.1 enemy. Man has become highly individualistic. He is unconcerned with others, situation has graphically been stated by psychologist Carl Jung of Zurich in his book “Modern man in search of a soul” thus; I have got a body, very fine, but where is my soul? The answer is, it has been lost in the debris of modern civilization; which notoriously, is constituted inter alia with the malevolent element of the evils of consumerism, the product of indiscriminate industrialization. This evil has helped men to develop the individualistic outlook and the result is beautifully described by the agnostic philosopher late Bertram Russell thus: Some human beings are like billiard balls always colliding with other human beings. A billiard ball does not know how to live with or enter into other billiard balls.

In the modern world we have too many billiard balls, full of conflicts, whether it is in politics, professions, administration, or where else; surprisingly even in house holds! People therefore are always unhappy, not contended. The legal profession is no exception to this. Professional ethics has become alien to the members of the profession. With malice towards none but with respect and love for the noble profession, may I pose the question: Has not professional misconduct started embracing even the young members of the profession? Newspaper reports touching upon the aspect is shuddering, rather shocking, because even the Disciplinary Committee to hear the issues relating to misconduct, consists of persons against whom serious allegations of misconduct are levelled against. What an irony!

Let me look at the profession from another angle. The legal profession in India perhaps is as commercialized as the profession in the United States. India, I am told has produced lawyers working on a contingency fee basis i.e., fee depending upon the monetory benefit awarded by the court to the litigant. The comment on this aspect by the renowned Jurist Palkhivala is interesting reading: “Ambulance chasing and acting as scavengers is thought to be perfectly in order”. Citizens of Massachusetts and Pennsylvania, in identical circumstance, demanded in the eighteenth century that the legal profession be abolished. Judge Learned Hand said, “As a litigant, I should dread a law suit, beyond almost anything else, short of sickness and death”.

To get over the catastrophe lawyers of the caliber of Kunhirama Menon shall come to the fore and take over the command.

When Menon made a statement in the Court the judges accepted it, even without an affidavit. But, alas, lawyers of this caliber are fading out. Now we accept perjury as an established norm of Indian life. The worst danger therefore is that people have started accepting this degradation of national character. We shall put a question to ourselves: How could such degradation of character permeate the legal profession in India, the culture of which was once upon a time the noblest in the world: Answer is, it should not have happened.

So far as the legal profession is concerned, dharma, we shall stick to, is what is called Vyvahara dharma. The lawyers as well as the Judges shall always keep in mind the Vedic saying that Dharma, whether Raja dharma, Samanya dharma or Vyvahara Dharma is the king of kings. Actions of those who are part of the judicial system therefore shall be rooted in Dharma.

Late Kunhirama Menon had the training/coaching under his father Sankara Menon who believed in the concept of Dharma. The training he got under such stalwarts like late K.G. Nair, made him a noble lawyer who never had been afflicted by the evils of consumerism. He believed in human values and the recipients of his services were not only his juniors but also the litigants, whom he represented in Courts. He fought tooth and nail against commercialization of the profession and adharmic practice. He made his juniors imbibe our ancient culture and act. He was the role model to the juniors who, today are groping in the dark for want of proper advice and training. The seniors shall always remember that they have to play the role model generating creativity in the juniors. Then only the profession will be able to provide the society the services of a noble lawyer.

Members of the profession, particularly the young members, may I take the liberty to tell you, emulate the qualities of stalwarts in the profession like late Kunhirama Menon and restore the lost glory of the noble profession, you have wedded.

In conclusion I quote Tagore:

“Where the mind is without fear and the head is held high

Where knowledge is free

Where the world has not been broken up into fragments

My father, let my country awake.”

Additional Accused and Public Interest

(S.A. Karim, Advocate, Thiruvananthapuram)

The Criminal Procedure Code, 1973, S.319 speaks about power to proceed against other persons appearing to be guilty of offence. The relevant portion of S.319 reads -

(1) Where, in the course of any inquiry into, or trial of an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused the Court may proceed against such person for the offence which he appears to have committed.

In our country State is the complainant in every criminal case. The State investigates the offence either through local police, Crime Branch, or the Central Bureau of Investigation, depending upon the seriousness of the offence. Offence involving beyond national boundaries, Research and Analitical Wing steps in. Offence is proved either through the aggrieved and the occurrence witnesses or circumstantial evidence. There are several other formal witnesses.

In the course of an enquiry or trial, if there is evidence against any person other than the accused, the Court adds such person as additional accused. It is purely the subjective satisfaction of the Court. Judicial wisdom permits the aggrieved to file petition and alert the Court to add any such accused in the offence. Under S.394 of the same code, if an appellant dies during the pendency of appeal, his near relative can proceed the case in case leave is granted. Similar is the position in civil cases. Similarly there is nothing wrong to permit near relatives of the aggrieved to bring the matter to the attention of the Court.

This provision is being abused by social activists and public interest litigants. Their interest is to make somebody accused for one's oblique purpose. It may be for one's fame or to tarnish other's reputation. So, there needs provision who can approach the Court to add additional accused. 

Section 43 Cr. PC-- A Provision Seldom Used

(By V.K. Babu Prakash, Judicial First Class Magistrate, Kollam)

S.43 Cr. P.C confers power on any private person to arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender. After such arrest the arrested offender shall be made over or cause to be made over to a police officer or in the absence of a police officer take such person or cause him to be taken in the custody to the nearest police station. The provisions of the section are extra ordinary in the sense that they enable a private citizen to arrest a person in certain circumstances and therefore, the section must be construed in a manner so as not to enlarge the power of private citizen to arrest a person. Though such a provision is there in the Code which is in existence for more than a century or so, the reality is that the provision is seldom used or more precisely never used by any private citizen at all. The raison-detre is that public at large is not aware of the fact that such a right is conferred upon the private individual. The other aspect is that even if they are aware of it, still they are hesitant to use it as they are doubtful about the protection they would get if the power is exercised. Most of the common people think that power of arrest can be exercised by police only, therefore they do not believe that private citizens have power to arrest offenders. They are equally quite sure that they cannot fulfill this task even if they try as dare-devils. If a thief or pick pocket is caught at red hand by a group of people, this may be possible but individual act does not end in success at all. India is a country whose majority of people are living in village side in rustic poor background. Naturally they would be dozile and inferioror who will not come forward and exercise the power under S.43 Cr. P.C, even if offences are carried out before their naked eyes. Further, even if one dares to exercise this power upon a criminal who does a criminal act in his presence, will the private individual succeed in taking the criminal to the police station? Not at all. Will the criminal surrender to the private individual and walk with him to the police station like a sheep in a shamble?. Never possible. On the other hand the criminal would forcibly ward off the private individual with his power of private defense and gallop away from the tentacles of law. So practically speaking S.43 Cr. PC is a provision which is lying as dormant as a dead wood in the thicket of the Code.

The section is a relic of the British rule in India. It corresponds to S.59 of the old Code of 1998. When Cr. P.C. under went successive amendments in 1923,1955 and 1973 S.43 were not at all touched. The present section is in substance the same as S.59 of the repealed Code, but slight peripheral changes were made. Under the English Common law system a private citizen had a right to arrest without warrant all persons found committing or attempting to commit a felony. While the British ruled India, the English men lavishly used this section to arrest any local Indians under the guise of the provision. However, the paradox is that after Independence none of the Indian Citizens ever had exercised this power at all. The Code is going to have a tremendous change as the Amendment Act 2005 will make a sweeping change onto it. Yet, the amendment does not touch S.43 at all. Thus a useless provision made by the British to suit their convenience is still lying in the Code gazing at the private citizen like an owl in a dark night.

HAIL TRG*

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

Befitting the occasion, I would remind you that books are the tools of a lawyer, and the greater their variety and perfection, the greater the help to his professional work. Charles Lamb conceived a situation of spending time in an old library of myriad books, walking amid their foliage, 'inhaling learning'. Let us 'inhale law' by turning the pages of Sri. T.R. Govinda Warrier's old books. Law books are not glossy illustrated books or coffee-table books; they are meant to be read; not to be seen only. We are fortunate to get the books of Sri. TRG, a senior citizen of the legal profession, who, as a true lawyer, studied to live.

Sri. Govinda Warrier and I studied law together; but he studied it far better than me. We were made in Madras. Brilliant all the way, throughout school and University, he was.

On Mr. Warner's ceasing to practise, I can only say: "I am kind of speechless at the moment"

TRG proved himself a representative of dignity and courage. Hard work made him a great lawyer. Several lawyers loved to hate him because he was one of the best lawyers when other; did retail business, TRG did wholesale business. He wore his personality.

Sri. TRG’s method of argument was submission and domination. He injected life into a case approaching rigor mortis, by arguing the legal questions admirably. His capacity for sequencing, separation, preparation and safeguards, is unique. He taught Judges how to listen for more than seconds. He never sat like a spare part.

I lived a hundred dreams whenever I happened to defeat Sri. TRG in a case, rarely though.

Sri. TRG was an advocate who had his answers, grips, smiles, evasions, and explanations. He proved the distinction between voice and noise in court. He proved that advocacy is neither sound of music nor sound of noise. He ignited the legal profession. He used to trouble the Court with his good length argument and reverse swing. In his hands, advocacy was more of an art than a profession.

Today, the legal profession is in poor health on-court; it is in worse shape off it.

The Kerala Bar and the Kerala High Court are verily poorer in the absence of the wonder, that is TRG. I cannot recite a better ode to a living legend.

Let us hail Sri TRG for his gesture in donating the books to our Association, and thank Advocate Sri. Ramkumar, who is instrumental therefore.

Thank you for your earnestness in listening.

*Felicitation address delivered, on 26-10-2005, at the Kerala High Court Advocates Association on the occasion of launching the donation of law books by Sri T.R. Govinda Warrier, formerly Senior Advocate.                                                                                             

The Gentleman Lawyer

(By T.P. Kelu Nambiar)

I am prepared to declare, even from the nation's grandest pulpit, that Sri. K. Sudhakaran, formerly Senior Advocate, (now ceased to practise), was the gentleman lawyer of the Kerala High Court Bar. I have known him from November 1956 onwards; and am able to draw his growth graph and construct his progress report. From a village in Kerala to the fore-front of the Kerala Bar, as Advocate-General and Senior Advocate, is no ordinary journey. Forgive my arrogant assertion that Sri. Sudhakaran was the most upstanding lawyer of his times; and his generation's premier advocate.

Sri. Sudhakaran can be considered as Advocate's Special, with his extravagant arguments and recycled contentions. He was a long-distance runner. Today we see only advocacy's abridged version.

To drive home an important point, Sri. Sudhakaran did not hesitate to repeat his verbal contentions even to the power of hundred. He taught Judges how to listen for more than seconds. He showed neither despair nor diffidence. He knew that when a lawyer argues a case he should have recourse to legal vocabulary, not spiritual vocabulary.

Sri. Sudhakaran possesses character, which is a pre-requisite for greatness. He is a gentleman of good common sense. Alert, enthusiastic and affable, with these attributes as primary assets Sri. Sudhakaran endeared himself to all, and helped himself to a slice of legal profession's history in Kerala.

Sri. Sudhakaran has a great gift for love and friendship. To him, friendship is neither a formality nor a mode; it is rather a life, as David Grayson used to say. He is so friendly that he forgets himself. His friendship is without self-interest. I have never heard him speak ill of others. Never did he associate himself with any scandal or slander club. He never amused himself with the faults, foibles, follies and reputations of his friends, because he knew that talking scandal is no evidence of one's own goodness. He is a prudent friend. He is a true friend. And a true friend is the gift of God, said Robert South.

For a lawyer, from an advocacy-watcher to 'Advocate's Special', is a long and tedious distance. And Sri. Sudhakaran covered this marathon within a record time. His retirement from legal practice is a celebration of achievement. His diary is not smudged with any controversy foot-note. If I am quizzed as to who is the most friendly lawyer, with no hesitation, I would answer: Sri. K. Sudhakaran. And, one does not seek the name of a rose.