Is It Time to Think of One More Ombudsman? One for the Legal Services?

(By Justice M.R. Hariharan Nair)

Squabbles in the fraternity of lawyers sometimes reach the level of litigation in Courts and the Respondent may even be the Bar Council. Even allegations of corruption are sometimes raised against the learned members of the Bar Council. In the absence of any shield of immunity from litigations provided to the Bar Council or its members through legal provisions, such litigations, often, are fought out to its logical end in Courts. But are there not better ways to resolve such problems than resort to regular litigation? Let us see what is the scheme in vogue in the U.K?

The Legal Services Ombudsman, there, can receive complaints about the professional body and call for the file concerned from the Bar Council and thereafter ask a senior member of the Ombudsman's investigating team to look at it. and the team, in turn, will prepare a report in the matter for the perusal of the Ombudsman. If the Investigating team wants more information or explanation from the complainant, they can call for it. When the report is ultimately filed and the Ombudsman is satisfied with the investigating officer's draft report, a copy thereof will be sent over to the complainant and to the Bar council.

If the Ombudsman decides, on the basis of the Report, that the Bar Council didn't investigate a complaint properly or didn't investigate it at all, a re-consideration of the question by the Bar Council can be directed. If he comes to the conclusion that the Bar Council delayed decision or caused unnecessary distress or inconvenience or mis- handled the complaint, compensation to the complainant from the Bar Council can be ordered besides leveling criticism against the Bar Council.

Where allegation of misconduct in the handling of a case by an Advocate stands proved, though the Ombudsman is competent to make a recommendation against the accused lawyer, normally this is not done directly. On the other hand the Ombudsman may recommend that the Bar Council should re-consider its decision on the complaint and take disciplinary action against the lawyer concerned. In other words, the Ombudsman doesn't proceed to discipline lawyers directly.

Normally the Ombudsman's recommendation to pay compensation to a complainant would be implemented by the Bar Council within four weeks of receiving the final report. The Ombudsman can also make 'a binding order' (as distinct from a recommendation) to pay compensation, though this is done only rarely. The impact of such a course would be that such order would have to be followed by the Bar Council even if the Bar Council disagrees with such decision.

Legal Services Ombudsman's decision is final unless reopened by itself which happens only in exceptional circumstances. Two justifying grounds in this regard are:-

(i) that there was a fundamental mistake in the case, or,

(ii) that some important information having serious impact on the decision was missing at the relevant time.

Though there is no appeal against the Legal Services Ombudsman's decision, judicial review would be possible.

If one is not happy with the day to day services received from the Office of the Legal Services Ombudsman, he can write to the Ombudsman's Corporate Services Manager in that regard in which case there would be an investigation into it by the Ombudsman himself.

Probably it is time that we, here, also start thinking of having an Ombudsman for Legal Services. Of course, in view of the disparity in working conditions and, the level of ethics, the scheme concerned cannot be the same as in the U.K. It have to undergo appropriate changes.

Mighty Landlords, Rejoice!

[Critique on Keshavan Nair v. State of Kerala vis-a-vis Haries v. State of Kerala]

(By P.M. Mohammad Shiraz, Advocate, Ernakulam)

On going through decision reported in 2005(3) KLT 391, Keshavan Nair v. State of Kerala, I am reminded of the unrelenting march of Judicial activism, which give the mighty landlord many a reason to cheer. Landlord's panacea for getting rid of troublesome tenant is patented by one of the greatest High Courts of this country. Probably our contribution to the globalisation of justice rendering machinery will be the dictum that if "the intention of the petitioners [Landlords] was to evict illegally the de facto complainant [tenant] who was allegedly running his office in the building belonging to the first and second petitioners", no offence under S.380 and consequentially under S.451 of the Indian Penal Code will lie.

Perusal of the sketchy narration of facts of the case will show that landlords who were on inimical terms with the tenant were alleged to have destroyed the building housing office of the tenant and the files, books, furniture etc. were found missing. On a complaint by the tenant, police after investigation laid charge under Ss.380 & 451 of Indian Penal Code against Landlords, who approached the High Court under S.482 of the Code of Criminal Procedure to quash the charge.

The Learned Judge, after analysing provisions of Ss. 23,24 & 378 of Indian Penal Code, came to the conclusion that since records produced before the court "will reveal the intention of the accused was only to evict the petitioners [Sic] and not to commit theft as defined" and went on to quash the charge as " it is well settled that if the court finds that the allegations revealed from the records on the face of it do not constitute ingredients of any offence, this court can certainly interfere under S.482 of Criminal Procedure Code and quash the charge. This will be necessary for the purpose of preventing abuse of process of court and also to meet ends of justice, as stated in S.482 itself".

After reading the Judgment, two questions troubled me:

A). Will not destruction of the tenanted premises and removal of furniture, books, files etc. from the premises, cause loss by unlawful means of property to which the person losing it is legally entitled? In other words, 'Wrongful loss' as defined in S.23 of Indian Penal Code. If that be so, since the act is alleged to be done with the intention of causing wrongful loss will it not amount to doing a thing dishonestly? and if that be so, will not the act amount to theft as defined in S.378 of Indian Penal Code?

The law can be summed up as follows: Where a person takes away a thing not because he bona fide believes that he has a right to take away the thing, but with the intention of coercing the person in possession to do something even though he does not intend to deprive that person of the thing permanently, he must be deemed to have committed an offence of theft. If this be the test, will not demolition of the building and removal of furniture etc. with an intention to illegally evict the de facto complainant, amount to theft and at least criminal trespass?

B. Is the High Court justified in exercising its power under S.482 in a case of this nature where the intention or lack of it can be brought out only in a full fledged trial?

Thinking about these imponderables, I turned the pages of KLT. Lo and behold, I came across Haries v. State of Kerala, 2005 (3) KLT 400. In that case, letters containing obscenity were written to a hapless woman and the Police after investigation laid charge against the author of those letters under Ss.292, 294(b) and 506(1) of the Code. The charge sheet was challenged by the accused invoking jurisdiction under S.482 of Criminal Procedure Code. After turning the 'annals of Indian Penal Code' and lamenting about the plight of Indian women, the learned Judge found that the allegations will constitute an offence under S.509 of Indian Penal Code and hence declined jurisdiction to quash the charge. The learned Judge found that since " the allegation revealed from the records constitute any offence or offences other than what are stated in the charge sheet it will not be just and proper to quash the charge. Such quashing will not only not secure ends of justice, but it will even result in miscarriage of justice".

Though women are definitely entitled to vigorous protection by all pillars of the State, is not a hapless young lawyer tenant entitled to claim that forcible dispossession of his office, his files, his books and furniture will cause at least wrongful loss to him and if that is done with the intention to evict him, such act will amount to theft and that such act will deprive him of protection granted by Act II of 1965?

Mourn, Mother Earth Mine! Revel, Thou Plunderers!!

(By K.G. Balasubramanian, Advocate, Ernakulam)

The latest example of legislative exuberance (misguided?) is The Kerala Promotion Of Tree Growth In Non Forest Areas Act, 2005. Though I am not an environmentalist in the strict sense, I too am concerned about preserving trees in God's own country.

A law for growing trees? Man, I was impressed. I was swept away in the vision of lush greenery the legislature must have planted. Our representatives collectively playing The Creator? All those grandfather trees (killed over last couple of decades) resurrected? I heaved a sigh of relief and rushed through the Act with heady anticipation.

The first 5 paragraphs of the preamble put me on velvet. The 6th one blew the daylights out, despite its apologetic attempt at being a palliative. But, I read on, perturbed. Impression: Unabashed asphyxiation of lofty ideals and precedents heralded over the years. In the guise of promoting green cover. A colossal masquerade! Brutus was misguided. Legislature has erred. Who is the Cassius?

Mate mine, the Act is mean. Is only that. Cannot be anything else! It mocks the Constitution. It is a cruel joke on environment. Ss.3,4 and 5 simply restate a platitude. S.6 is a killer, doing away with environment (laws) and cutting at the root of every tree. It is The Terminator of everything lush and green. (Quaere: Is not the section ultra vires?) One does not have to be resourceful to overcome Ss.7 to 13. The way out is readily available, tailor-made and user friendly, in S.14. It ensures that any other person (from a puny carpenter to a timber tycoon) acting in good faith can go on a merry rampage. The Commission appointed by the Hon'ble Supreme Court suggested restoration of eco-fragile regions. Our representatives have hastened to hand over the entire greenery in the State to any other person who need only act in good faith. Ha! The very name of the enactment is discordant and deceptive. Really, the Act should be named KERALA TREES (BURIAL) ACT.

ELEGY

R.I.P: Kerala Forest -- Noble, reviled and Mutilated. Born: Eons ago. Died: 2005 AD

Ssh.........! Mother Earth is mourning!

Mourn, countrymen mine, for what was green!

Weep, in the name of everything animistic, exquisite and precious!

Scream, for horror is upon thee! Run, or thou art done for!

Hide, all ye green and beautiful, for thou art marked for doom!

Wake up, ye all, that a monster shall not plunder flora and fauna!

Rush, ye woodcutter, ere axe thine is snatched away!

Beware, tomorrow’s Gordian query: What do “green© and @rain” look/feel like?!

TAILPIECE:Can the legislature enjoin underground cables and “one tree per home”?

A penalty for non-compliance? Keep politics and politicians out of forests?

Justice Janaki Amma

(By Mr. Justice K.P. Radhakrishna Menon)

Sister to all irrespective of caste, colour or religion, but mother to none in the biological sense, yet she was divine mother to all because her self-effacing love and compassion, which is the mark of high spirituality and culture, had overshot the barriers of family, race and creed and assumed a universal aspect. This was Janaki Amma.

Janaki Amma was rustic in simplicity, she and modest and therefore far removed from the contemporary educated, self conscious, self centered, egoistic modern women and yet. To quote the biographical statement of Swami Rangananthananda about the life of Sarada Devi, her life finds powerful and responsive echoes from the hearts of all men and women, rustic and modern alike" This fact explains her universal appeal. Whichever position she had adorned, Municipal Chairman, Justice, head of service organisations, Janaki Amma could get accolades from the public because she was committed, devoted, dedicated to the cause that comes before her and consequently justice reached the deserving always.

This noble lady breathed her last as shall happen to all mortals and therefore the role model of a woman she was not there in our midst today.

But like Sarada Devi, Janaki Amma will remain as an inspiring example to the modern woman in her efforts to steady her steps through the currents and cross-currents caused by the evils of consumerism engulfing the modern age.

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.”