The Cultural Mission of Law -- II

(By Dr. K.B. Mohamedkutty, Senior Advocate and Former Dean, 

 Faculty of Law, Calicut University)

We find bewildering multitude of conceptual understanding or misunderstanding about culture.  At any rate, material well-being and comfortable life style are not the mark of culture.  A man living in pomp and pageantry cannot be considered to be more cultured, because, culture has little to do with material equipment of life.   Culture, on the other hand, is a way of life inspired by fundamental values which flows from art, literature, religion, morality, family background, tradition and the law.  It flows from the distant past. It is endowed with continuity, without being merely ephemeral. It has a capacity to adjust itself with the present day world.  Culture is ever moving forward with definite step for shaping future life of the people.  The importance of tradition in the formation of culture is indubitable, but culture is not simply heritage or tradition.  A person can be said to be cultured when he succeeds in the fire of temptation or when he successfully faces the bitter problems of life.  When man is able to get rid of ignoble thought and action, he can be said to be cultured.  Absence of “narrow domestic walls” leading to interaction with persons enhances the unit of culture.  In the rubrics of culture thus we find endless things. C.E.M Jode attempted to say it in a different way by describing what is not culture.  He said that many of our deeds do not reflect culture.  Earning money and spending money for our own comfort has nothing to do with culture.  A luxury yacht called at the port of Kochi at the end of October, 2013. Its daily tariff was reported to be rupees fifty thousand per person.  The heavy cost did not deter 87 Indian couples travelling on board as, of course, a part of seafaring culture. But it has nothing to do with culture in common understanding. So is using, up-to-date vehicle or equipment or using fork and knife for eating. But noble thought and action and consideration for others lead us to peace, security and cohesion in social life.  On the other hand, hypocrisy, blind imitation and arbitrary exercise of power are negation of culture.  

The art and literature weave culture indirectly, but law does it directly. There is no iron curtain in law or between courts and the people or between lawyers and judges. Transparency is the hall-mark of law. There are, of course, several silent areas in law and yet law provides space for culture in it. In modern times, Constitutions and laws sprang up in all parts of the world with the emergence of new nations.   All such things have an emancipating effect on culture.  The dignity of the Indian Constitution lies in its political culture of a high order as well as its call for higher ‘spiritual and moral sanity’.  The Indian Constitution is an epoch-making event in the cultural history of India, which is recognised by the revolutionary and the conservative intelligentsia. There is no single factor in India’s history contributing immensely to her cultural renaissance as the emergence of the Constitution.  The Constitution works as a power dividing mechanism as well. Unless the enormous power of the State is cut, reduced and divided between the Centre and the States, the possibility of its misuse cannot be ruled out.  This is because, as is often said, there is no champagne headier than power.  It is our experience that the democracy sometimes becomes a shield for exercising arbitrary power leading to oppression. The Indian Constitution indeed has been instrumental in maintaining democratic political culture, notwithstanding ideological differences between political parties.  It is axiomatic that scope for improvement is inherent in any legal system. 

Until India became free from the British rule, the State was not tied with the people as such. Even before British rule the concern of the State was, by and large, fortunes of kings and emperors.  The life of common man was dry, rough, sour and horrible.  In other parts of the world also autocracy or imperial domination prevailed and the law protected mainly feudal interests. The democracy which later came into being in India and elsewhere is a political and cultural advancement, but when it slips into bad times causing economic decline, totalitarian usurpation of power, corruption, antagonism among factional groups and abuse of election process etc. legal culture faces a set back.  The juristic notion is that a legal culture does not exist simply because policemen continue to patrol the street and Constitution and codes are kept in judges’ and lawyers’ shelf.

No doubt, the laws of a country absorb in them good models from its own past legal system.   A kind of cultural synthesis takes place in the process.  It is often asked whether culture means some inner growth of man.  Jawaharlal Nehru answered that it must.   Sometimes we take a combined view of culture and civilization, though they are slightly different.  It is said that culture is a stream with banks.  The stream is filled up with blood flowing from wars and conflicts and historian is concerned with the stream only. The constructive things going on in the banks are unnoticed by him. In the bank of the stream people build homes, make love, rear children, sing songs, write poetry and even whittle statutes and laws.   The story of culture is the story of what all good things happened on the bank.  K.M.  Munshi, India’s renowned thinker has observed that culture becomes a real phenomenon when there is continuity of collective life among people.

There is no culture which is absolutely pristine, pure and unaffected by any other culture. Pure culture, like pure blood stock, is nowhere in existence. The interaction of culture is called cross-fertilization of culture. Today, we must realise, this process is accelerated as distance between nations has shrunk.   In the present day world, we have Declaration of Universal Human Rights and such other wholesome legal standards in different spheres of human life and culture.   Learning and adopting from other legal systems enlarges the field of cross-fertilization of culture.  

The  Open  Road  to  Culture

The grand wheel of destiny moves from culture to civilization. Culture is confined to art, customs, habits, beliefs, values and behaviour. Law is concerned with man’s conduct, prosperity and peace in community life. In this sense politics is certainly related to culture.  As culture is a conglomeration of many good things in life, it is compared with a wooded bank of a river in the moonlight: we cannot identify each tree, but we experience the wood as the collective existence of trees. 

For flourishing culture intellectual pursuit is necessary, and yet intellectual eminence is no guarantee for culture.  So is the material comfort or well being.  That is why we do not consider scientific or economic progress as a cultural upheaval.  We find that wealthy nations and affluent society of people behave without showing pity or compassion to other’s misery.  Their ruthlessness causes a vacuum in the cultural atmosphere in the world.

Culture is synthesis of intellectual and moral values of man.  In the absence of Dharma, advancement in any field is a myth.  The relationship between culture and law is kept alive uninterrupted by the people because in large part of the law there is equity and good conscience.  Humanism is a central theme of the law.  Looking at India as a nation we notice cultural diversity as an indelible feature of it.   While we consider advancement in science and technology as mark of civilization, culture is different from such achievement.  Culture is inspired by fundamental values of life. 

 Romanticism  of  the  Law

The change occurred in human relations in the past are noteworthy.  Maine in his celebrated work, Ancient Law, explains how change occurred from status to contract.  Such examples are legion. It could be seen that law assists the growth of culture by positive measures and by way of acting as an instrument for obstructing or curbing oppression and exploitation. For example, the principle of quasi-contractual liability forbids unjust enrichment. The Constitution of a country acts as a formidable force against arbitrary exercise of power by the State and for protecting the inalienable rights of man. The society absorbs change that takes place around, but it is lamentable that we failed to notice the reduction or loss of unit of culture in the process. 

Our knowledge, belief, moral behaviour, attitudes and values mould the policy of the law. Through them the heart-beat of the society is predicated. Law thus absorbs the social spirit of the people. The opposing theories in the realm of art, namely, ‘art for art sake’ or ‘art for the well being of the society’ have no place in law.  On the other hand, in the field of art great men divided themselves in two camps. T.S. Eliot in England and Tagore in India accepted wholeheartedly the former theory.  But Dickens, George Bernard Shah, Mark Twain, Victor Hugo and large number of Indian writers stood for the social advancement theory of art.  But in law there is no such division at all.  It is submitted that the term ‘romantic’ is used in literature and art to indicate anything which opposes conservative or orthodox view of life.  If that be so, in law there is a romantic school of thought which nurtures great hope for future.   It expresses deep disappointment for the present and stands for idealism and humanism. The function of law, in a way, is to remove the dirt from society and humanize the people. Law in every country has the role of building civil set up for peaceful living.  That is the romanticism of law.  Everyone, particularly lawyers and judges must act as messengers of a new culture. They must develop a passionate commitment to build and enhance the culture of law. On its moderate fulfillment, the disenchantment of law will be replaced by the beacon light of the Law. 

REMEMBRANCES OF A GOOD FRIEND -- SIBY MATHEW

(By Shri. N.Subramaniam, Advocate, High Court of Kerala, Ernakulam)

Shri. Siby Mathew is no more. The Lord called him to His Abode on 16.11.2013. A good friend of mine and a gentleman to the core, Sri. Siby Mathew was a thorough professional who followed the professional etiquette meticulously throughout his career as an advocate, one who offended none.

My earliest connections with him date back to the early sixties, when Sri. Siby Mathew was brought to the Munsiff Court, Wadakkanchery, as a counsel to argue a Panchayat election petition. I was appearing for the elected candidate. Sri. Siby Mathew presented his arguments in a humble but forceful manner for which I admired him. The returned candidate was declared elected by judgment pronounced after few days. Later on, I took him to my office and entertained him with a skeleton tea party. From that day my friendship with him continued without any break till his sad demise. Whenever I used to come to Ernakulam at that point of time for legal matters or otherwise, I made it a point to meet him. He too used to spare a few moments for me in spite of his busy engagements and practice. He was always a friend in need.

At this juncture, we are reminded that man is mortal but achievements as a man or a professional are immortal. Such a good friend surrendered his soul to the creator. May his soul rest in peace.

Some thoughts about Sri. Siby Mathew

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

I cannot lay claim to have known Shri Siby Mathew very closely. What I know of him and about him is more from my recent-yet-to-begin days at High Court. But I would lay claim to know some of the high qualities he professed and practised to the very last.

As a fledgling lawyer in Trial Courts, having many dreams about professional conquests, with the misplaced urge that I had to win every case, with the more misplaced confidence that I could win every case, forgetting that only one side could win, I had set my goal high. Reading everything was a thrill, understanding law was a challenge, applying it was divine, opportunities were aplenty and achievement was the cherished object. Some feelings persist, though with more detachment personally and less attachment.

It was one of those days when I had to convince the presiding officer that the principle I had canvassed had judicial sanction. I traced an isolated dictum through a digest in some volume of KLT. But to my shock, the citation was not correct. Rummaging through the entire volume and other journals of the same year, I became frantic at not finding the golden words. My case was slipping away. The next step was, naturally, KLT office. I dialled the number. A polite, aristocratic Voice answered. I shouted, “What are you doing at KLT? Your digest is giving me indigestion, my case is about to vanish”. The Voice asked: “What is the point you are looking for?” I gasped into the mouthpiece. The Voice replied gently: “I will call back”.

Hardly five minutes passed and the telephone rang with the lengthy note of an incoming long distance call. It was the Voice again. It said, “Please see page.......I am sorry; we made a mistake in the digest”. 

I rang up KLT in the evening that day. The Voice answered again. I thanked the Voice profusely and offered apologies at the irritation I had expressed in the morning. The Voice became more polite and said gently: “We all have tense moments from time to time”. Then only it dawned on me to ask the owner of the Voice his name. It was Siby Mathew, live! That showed me the quality of professionalism Shri. Mathew exhorted and practised all his life. That showed me again the sentiment a senior should bear to juniors. That also showed me the commitment a lawyer should attune himself to.

I had more opportunities to meet Sri Siby Mathew after I started attending High Court. He took pains to entrust research into some civil matters with me. I think I did not let him down. As a colleague, he was a thorough gentleman, who could never be angry at anyone. He wore the cloak of polite reservation and sincere service in court and off court. He had the wholesome quality also of not keeping something for later.

As a lawyer, his practice in all areas of law was impressive. But, I think his first love was KLT and not the Bar. He was more of a legal journalist than a lawyer. That is evidenced from the faultless presentation of his multitudinous publications.

The legal fraternity in India has lost a doyen of legal journalism. He has left a rich legacy of legal culture and etiquette behind him for the next generation to follow. 

May his soul rest in peace.

SIBY  MATHEW – IN MEMORIAM

(By Hon'ble Justice K. Sukumaran, Former Judge, High Court of Kerala)

One more life is gone. One more leaf is torn- from the unbound Law Times of unfading Memory shelves.

The connection with Law Times, for me has been far more emotional and sentimental than with yet another legal publication.

In the infancy of my profession, the local law used to be learnt from the local law reports. The official Law reports-of Travancore and Cochin, (the States which got integrated just before I graduated in Law), -and the unofficial Law Journal and Law times. Travancore Law Times had a special appeal. It had a rare flare and flavor.

It was in its columns that one could come across really learned disquisitions on legal topics. Dr. John Mathai, (First Finance Minister of Independent India) T.K.Velupillai, (later Sadasya Thilakam, and compiler of the Travancore State Manual), Justices Chatfield, Venkita Rao, and others. They wrote and spoke . Their wisdom was made available to the curious by TRAVANCORE  LAW  TIMES.

Additionally, and more importantly, a western view was also available. The latest cases decided by English Courts were neatly summarized. 

The winds of change had started blowing across the western coast of India. Pandit Nehru who discovered India, remarked that while many parts of Europe were still groping in the dark, light was visible in the southern States of India. ‘This’ was, in no small measure, due to the contribution of the Travancore Law Times. That glorious tradition was continued after the integration of the two princely States of Travancore and Cochin, in 1949. The continuation of Travancore Law Times was imaginative. 

When the official law report was rechristened as Travancore –Cochin Law Reports, TLT got transmuted as KERALA  LAW  TIMES.

Mr. M.C. Mathew steered clear, the little skiff then, with sincerity and dedication. Bashful by nature, he mingled with all, concealing a latent sense of humour. There was intimate friendship between M.C. Mathew and the legal firm Menon and Pai, with which I was associated, 1954 onwards. Both G.B.Pai and P. Govindan Nair were members of the Editorial Committee of KLT. I too had an indirect link with KLT.

G.B.Pai and P.Govindan Nair were Reporters of All India Reporter, thought of for covering the cases of High Court. Both were very busy, professionally and otherwise.

K.V.R Shenoi was the de facto Reporter. 

Two juniors joined the firm in 1954 – this writer and V. Desikan. There was a sub-delegation of the reporting work. We did the work with all the enthusiasm of a fresh broom. Shenoi shared a professional secret to reduce the intellectual burden. ‘Pick up from the bundle of typed out judgments, those reported in KLT. They are bound to be reportable.’ It invariably worked. Trouble arose only when the competitor Law Reporter-the Dominion Law Reports reported a judgment outside KLT! The publication registered phenomenal prosperity and international reputation thanks, to the association built up by involving  jurists of international repute in the operational side.

A Judgment of mine, dealt with the nocturnal movements of the heads of the matriarchal families crossing each other with a country torch in hand. I referred to the legally ingenious ways in which Brahmin fathers avoided payment of maintenance to their children. This attracted the attention of the American Law Researcher Louis Caroll Street. Her findings in the research of a long period, tallied with my observations - She wrote to me. Such International intercourse of ideas was fecilitated by KERAL A LAW  TIMES. 

The old volumes of the TLT's remain in the shelves, with papers brittle but preserving the unbreakable thoughts, reminding one of the rare pieces of the Viking Museum in  Stockholm , with a significant warning: ‘Don’t Touch it. Preserve it for the future generations.’

Siby, with his frail frame and unfading smile will not fade out from memory lane. Two edifices face each other in the eastern part of the Old Ram Mohan Palace. The High Court of Kerala and the Kerala Law Times. One produces the law , the other disseminates it!

The height Siby reached and kept was not attained by sudden flight.  He was initially a reporter (in 1974) and then in the editorial board (1978). In the year 1979 was Assistant Editor; and in 1985 when M. C. Mathew left his busy seat opting for membership in the Editorial Committee, the son Siby  occupied it. He managed it with imagination and innovation. Ailment did not dim his vision nor depress his spirits.

It is good that the tradition is carried on by  graceful faces and capable hands, a symbol of empowered women. 

MILD IN MANNERS; STRONG IN ACTIVITIES

(By Shri. Kaleeswaram Raj, Advocate, High Court of Kerala)

Shri.Siby Mathew now belongs to the extra-terrestrial jurisdiction.  His departure has created a big vacuum in the legal world especially in the significant areas of law reporting and legal journalism.  Press outside is often termed as ‘an institutionalized anarchy’.  But legal journalism belongs to quite an opposite category. It is bound to be a systemized institution. KLT illustrates this point. After its founder editor Shri.M.C.Mathew, it was Shri. Siby Mathew who carried on the legacy. Even while being conventional, he was remarkably radical.  Such a blend is rarely seen in the legal press.

An institution cannot develop on flattery and pretentions.  Dissent is the soul of judicial democracy as well.  Shri. D Y.Chandrachud, the Hon’ble Chief Justice of the Allahabad High Court, in a recent speech at Kochi indicated about the significance of dialogic truth that is peculiar to legal discourse and process of adjudication.  It applies to institutional criticism as well.  Siby Mathew, a man soft and soft spoken, was the most dynamic editor in Kerala’s Legal journalism.  Law reporting is not merely a matter of res judicata and estoppel.  It is bound to be a mirror that reflects the indications of finger points and the echo of the most outspoken criticism.  Sri. Siby Mathew was a fearless editor.   He valued the courage of the innocent than the commands of the powerful. He valued the institution rather than individuals. He always believed   that the judges too are not immune to criticism. However, he could distinguish between fair criticism and personal attacks and he never favoured the latter. Siby Mathew was concerned with the content –whether it is an article or judgment. In his private talks he was usually to say about the ritualism in reference speech and its consequent futility.  Whenever I was confronted with the pettiness of those in power, I had a soul searching experience through my writings in KLT.  For that I should thank this great editor in the form of a simple man.  

He was also a good lawyer. He focused on substance rather than on form. When the court room argument has lost its rhetoric relevance and the process is more conversational, lawyers like Siby Mathew set a good example to follow. He was not individually ambitious.  He was just doing his dharma and karma. 

KLT has a rich heritage to be taken ahead.  My friends at KLT will be motivated and rejuvenated even with a slightest remembrance about the departed soul.