Towards Total Transparency

(K. Ramakumar, Senior  Advocate, High Court of Kerala)

A topic of hot discussion today, particularly in the legal Circles, is how to give a decent burial to the friendless orphan called ‘Collegium’, which has no takers now. The recent bombshell by that upright though garrulous but ebullient former Judge Sri Markandeya Katju had spurred a controversy exposing the chinks in a system, which is shrouded in mystery, secretiveness and wholly opaque and what a highly respected former Judge of the Supreme Court Smt. Rumapal said “one of the most closely guarded secrets in the country”. Srivastava’s case revealed the major defects in all the three organs of the State, while Dinakaran of the Collegium and Ashok Kumar of the executive controlled by wily politicians.

Note what Sri Justice Mathew said in State of Utter Pradesh v. Rajnarain  (AIR 1975 865 = 1975 SCR (3) 333).

“In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil of secrecy the common routine business, is not in the interest of the public. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal self-interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption”.

Later in the year 1982 Sri Justice Bhagawati also echoed the same feeling:

“We believe in an open government and openness in government does not mean openness merely in the functioning of the executive arms of the State. The same openness must characterize the functioning of the judicial apparatus including judicial appointments and transfers”.

How then can the present system of five Indian citizens though occupying high positions of confidence, respect and trust decide on the suitability of a person to sit in judgment over 128 crores of people without the machinery to assess his character, background, political propensities, moral strength, etc. etc.... The answer is now clear. The existing Collegium should go.

What then is the alternative? It has to be remembered that judge-ship is not a mere office. Nor are our Judges just like Civil Servants competing for more perks, more privileges, more pension, more paraphernalia, etc., as apparently they now do. An eminent Judge of a small but mighty country Isreal observed in a book:-

“But we are Judges. We demand that others act according to the law. This is also the demand that we make of ourselves:......"

“I view my office as a mission. Judging is not a job. It is a way of life. Whenever I enter the court room, I do so with the deep sense that, as I sit at trial, I stand on trial”.

Every democracy therefore, needs Judges of high caliber, character, integrity and impartiality. In a vibrant democracy like ours, fearless judiciary shall be a cardinal feature. How do we ascertain and ensure those qualities? Neither the executive nor the judiciary shall have primacy in this regard. In a democracy no limb of it can claim superiority over the other. What is envisioned by the great founding fathers of our Constitution is not merely a consultative process but a participatory process. This was unwittingly defeated by the system of Collegium and in the words of Sri Anil B. Diwan, a prominent Senior Advocate of the Supreme Court:

“The worrying concerns relate to: appointment of unsuitable candidates and selection based on favouritism and nepotism, influential connections and personal likes and dislikes”.

We the people of India now look forward to a change for better. We will therefore, continue to depend on our Honourable Judges who have special and expert knowledge of the eligibility of the candidates suggested for judgeship. Ineligibility, however, will be left to be determined by the executive, which alone has the machinery to investigate on the conduct, character, background and disqualification if any of the candidate. The suitability should be enquired into by a Parliamentary Committee on the pattern of the United States where the Senate Judiciary Committee conducts a searching interview with the candidates and then makes recommendations to the President. Once the Parliamentary Committee clears a candidate, the Rashtrapathi, again a representative of the people, will act. Sri Anil B. Diwan in a recent Article in the Hindu had made some suggestions regarding the above procedure, which I respectfully endorse:

“These would include: transparent criteria for eligibility as well as for short­listing and selection (like age, standing, income etc); a complete and periodically updated database of potential candidates that includes their qualification, performance, general reputation, etc., and which is accessible to the public; applications to be invited by nomination/advertisement; consultation with members of the Bar and Bar organizations; inputs sought from the public with regard to shortlisted candidates; absolute immunity to citizens, while giving their inputs in a confidential manner, from laws of contempt and defamation; reasons for selection to be recorded and disclosed when required, and, most importantly, a complete record of video/audio of JAC deliberations”.

Goodbye  to  A  Good  Judge

(K. Ramakumar, Senior  Advocate, High Court of Kerala)

The High Court of Kerala will undoubtedly suffer a real loss in the retirement of Sri Justice Thomas P. Joseph, one of our most upright and capable Judges.

Legal practitioners including halting and hesitant green horns loved to enter his Court for they were never humbled, humiliated or harrowed. They could argue their cases with ease and confidence. Quality counted in his court needing no cadging. He held high the tradition of Bar friendliness and reaped in return--respect unreserved.

His talents however were cabined only to Criminal and Civil branches of law, which of-course he handled with commendable ability with his firm grip and familiarity with most of the reported Rulings.

This humble contributor while representing the High Court Bar had respectfully requested the then Hon’ble Chief Justice to consider adopting the pattern prevalent in the Apex Court and in some other High Courts to allocate to all Judges admissions on Mondays and Fridays, with the remaining three days for final disposal. A few days later the Chief Justice responded that he is willing but his colleagues are not. I had occasion to interact with Sri Thomas P. Joseph as a young practitioner in Kottayam and therefore, it was not a surprise to me to later know that he had been chosen to the higher judiciary.

He was the ever vigilant Registrar Vigilance practically perambulating like a Police Officer. His report on the Marad massacre was incisive as well as revealing. Like many such reports, it gathers dust due to political compulsions. When Sri Justice Thomas P. Joseph demits his high office he can proudly feel assured that he had done his job well.

Members of the Bar wish him good health and happiness and most of all the greatest gift of God - contentment.

Some more Thoughts on Claims and Counterclaims

(By K.G. Balasubramanian, Advocate, High Court of Kerala)

I had left Thankamma* to the care of Themis. The judicious reprieve to her in the form of an application under Order VIII R. 6C was most welcome though I had felt that the situation required further investigation and more convincing answers. 

I noticed sometime thereafter that maintainability of counter claim in suits for decree for partition had been negatived in Doraiswamy v. Sivasankaran  (2014 (3) KLT SN 20 (C.No. 21). The learned Single Judge has declared that “......defendants are incompetent to set up any counter-claim for inclusion of some more properties not included in the plaint for division in the suit instituted by another sharer. .......... no counter-claim by defendants in a suit for partition for inclusion of other items which are stated to have been omitted for division is possible, decree can be only in respect of items described in the plaint schedule”.

In Jose v. Antony  (2001 (2) KLT SN 31 (C.No. 34), a decree for partition of property including a school scheduled to the written statement was upheld (presumably because maintainability of the counterclaim was not canvassed).

In 1982 KLT 376  (Sukumaran v.  Madhavan) dealing with a suit for a decree for injunction and counterclaim therein for declaration of title to the property and recovery of possession – it was held that “The object appears to be to reduce pendency of cases so that causes of action and cross claims similar in nature could be clubbed together and disposed of by a common judgment ...............” and that “it can be seen that courts have not restricted the scope of R 6-A only to money suits.................. In the result, the submission that R.6-A can apply only to suits for recovery of money has to fail”. Though the learned Single Judge noticed the contention based on Order XX Rule 19, it is not seen decided.

In Raveendran v. Mruthyunjayan  (1986 KLT 1305)  it was held that “It cannot be said that a counter claim can be confined only to money claims or to causes of action of the same nature as the original action. There is no justification for the conclusion that the counter claim relates to or must be connected with the original cause of action or matter. O.8 R.6A envisages that it is open to a defendant to prefer a counter claim against the claim of the plaintiff. The words “any right or claim in respect of cause of action accruing to the defendant against the plaintiff definitely indicate that the cause of action from which a counter claim arises need not necessarily arise from or have any relationship or connection with the cause of action pleaded by the plaintiff.” The learned Single Judge had not noticed Order XX Rule 19.

While Pathrose Samuel v. Parameswaran  (1987 (2) KLT 44) accepts that “The words “in addition to his right of pleading a set off under R.6'’ appearing in R.6A need only be understood as enabling a defendant in a money suit also to plead not only set off under R.6 but also make a counter claim for what is due to him after set off. A different interpretation will only defeat the purpose and object of the provision to avoid multiplicity of litigations by clubbing causes of actions and counter claims similar or identical in nature and disposing them of by common judgments”, it proceeds to opine that “Whether the counter claim can be in respect of any claim that could be made the subject matter of a separate suit in relation to any cause of action accruing to the defendant against the plaintiff independent of and unconnected with the plaint claim or cause of action as held in Raveendran v. Mruthyunjayan (1986 KLT 1305) is not a matter that comes up for consideration in this case. ..................... That means the Code contemplated claims which could not and need not be entertained as counter claims but left to be decided in independent suits as the court considering the counter claim deems fit. What those categories of counter claims are need not be gone into here. So far as this case is concerned the counter claim relates to the same property over which the plaintiff claims relief and the claim is counter to the title claimed by the plaintiff.

Sambhaji & Ors.  v. Gangabai & Ors.  (2008 (15) SCALE 522 = (2008) 17  SCC 117) reiterated: “The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in Judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence, processual, as much as substantive. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed”.

The above statement of law also prompted me to say earlier that despite comprehensive amendments to the Code vide Act 46/1999, the limitations manifested in Order VIII Rule 6F and Order XX Rule 19 were not removed, only because the Legislature thought it fit not to pave the way for inconvenient situations in non-monetary litigation. But, it is expeditious and judicious to accept that counterclaims homogeneous with the plaint claim may be ordinarily entertained, a situation proved to be healthy and welcome by two decades of legal escapades. 

But, there is conflict between the dicta laid down by three learned single Judges; of course, it will be easy to say that the conflict does not survive in the light of Gurbachan Singh v. Bhag Singh & Ors.  (1996) 1 SCC 770 = AIR 1996 SC 1087) and Jag Mohan Chawla v. Dera Radha Swami Satsang  (1996) 4 SCC 699)  though I feel those decisions and Doraiswamy v. Sivasankaran require to be reconsidered on account of casus omissus.

A  Reporter's  Diary

(By B.Premnath, Advocate, High Court of Kerala, Ernakulam)

“But in these sharp quillets of the law, good faith, I am no wiser than a Daw”₁ - My feelings exactly, as I ruminate over judgements after judgements, day after day. A novice, only in to the 5th year of law reporting, I always feel elated to do the art. My day begins by reading judgements and end with it. I wish I had the trained eye of an eagle to spot the dictum flawlessly and craft the head notes. I always remind myself that law reporting is not news paper reporting, where sensationalism has a coveted place.

When  I eagerly set out to comprehend the works of the “Living Oracles of the Law”₂ , I read through the lines, word by word. I revel in digging deep in to the judgements. I don’t have the liberty to coin words, add embellishments to the head notes than point out the exact law that brews out of the judgement. I am reminded ever not to rush through the judgement. I know I cannot miss the Lex Loci that lies hidden. My eyes stay pinned on to the facts spanning to the precedents if any relied on, and then to the ratio decidendi, to discover the law within. I am aware of the value of the precedents. “Stare decisis is at least the every day working rule of our law”, says Benjamin N.Cardozo. Precedents have a “directive force for future cases of the same or similar nature,” (Redlich, “The case method in American Law School,” Bulletin No.8, Carnegie Foundation, Page No.37).

I ever try to emulate the probably unparalleled work culture of Late Sri.Siby Mathew, my mentor at the Kerala law Times. I have his advice ringing in my ears -"Prem, mind the reader” - readers comprising judges, lawyers, lawmakers and students. What do I need to deliver through the head notes? It should definitely be the dictum which the reader ought to understand at a glance. Long winding sentences would be a nightmare. I cannot be like a knight on a sleeveless errand, through the judgements. I am conscious that unless I chew and digest the judgements, I will be failing in my attempt to report the law. I know that in my long run as a lawyer, it will put me in good stead.

But how judgements are made? and how a decision gets its shape to become the Lex Loci ? Benjamin N.Cardozo says that the decision making process is one of “search, comparison and little more. Some judges seldom get beyond that process in any case. Their notion of their duty is to match the colours of the case at hand against the colours of many sample cases spread out upon their desk. The sample nearest in shade supplies the applicable rule. But, of course, no system of living law can be evolved by such a process, and no judge of a high court, worthy of his office, views the function of his place so narrowly. If that were all there was to our calling, there would be little of intellectual interest about it. The man who had the best card of index of the cases would also be the wisest judge. It is when the colours do not match, when the references in the index fail, when there is no decisive precedent, that the serious business of the judge begins. He must then fashion law for the litigants before him. In fashioning it for them, he will be fashioning it for others”.