The Collegium  Instrument -- Is  it  A Casualty Aggravating into an Injustice

Calamity or it can be A  Commission Rich  in  

Integrity Inviolably  Independent  Impartiality

(By Justice V.R. Krishna Iyer)

In every country and in India too,  peace and stability, honour and good behavior are regulated by laws made by the people’s representatives.  The institution which make laws were elected by the people and call the legislature.  The implementation of the laws and the maintenance of order were carried out by the Executive.   A set of people who commanded the majority of electors were called the Executive.   As such there can be disputes and fights among the people and between the executive and the legislature and there should be some authority which can settle the dispute.  The authority which must command obedience of its decisions by the executive, legislature and the people of the nation is called the judiciary.  The judiciary consist of judges and they pronounce judgments binding on the people, corporations, institutions and economic systems.  

In short, judges as a class are the highest authority within the State and their appointment is the supreme power and naturally such appointments have to be made with the greatest care based upon high morality, ethics and after public investigation.  Their political views, socialist milieu and economic well-being and integrity have to be considered and merit in the largest sense should be the criterion for selection.   The accident of seniority should not be the Foundation for selection and the principles of good behavior should be a constitutional charter to be enforced by impeachment by Parliament.  Regrettably the choice of judges and their functional principles are a chaos in our country.  In India as in the U.K judges comes from Bar.  The President appoints them as the royalty in Great Britain.  But who really chooses the judges, whose word is law, whose pronouncement is binding on the parties to the adjudication and the people of the country as a whole. No principles, no accountability, no behavioural charter exists with the result even corrupt judges with no higher authority to investigate into their conduct exists today.  This is a great tragedy and the collegium is a peculiar body constituted solely by the High Court and by the Supreme Court on what principles nobody knows.  Today it looks as if judges are creatures of favouritism and family likes and dislikes with no public scrutiny but the product of a upper class of Lordships who themselves were chosen by an unregulated process which is more a riddle wrapped in a mystery inside an enigma.  Such a strange operation must go and something more rational consistent with social justice founded on moral principles and democratic, socialist, secular canons must be set up as early as possible.

The word ‘collegium’ does not find a place in many dictionaries but the Website lexically gives the following meaning:  ‘A group whose members pursue shared goals while working within a framework of mutual trust and respect’. I dare say the one judge whose majority created the collegiums hardly understood the semantic essence of that word. Often times caste and communal considerations, creed and class interests, favouritism and partial interests guide the collegiums thus perpetuating casteism, communalism and class comity which is the very vice we should avoid in judges. In this latter sense collegium is a menace where casteism, regionalism, communalism and religionism play an operative influence on the final choice by three judges. In this sense collegium is a wrong instrument in selection of a sound judiciary. It is a remedy which aggravates the malady. Judges should be beyond influence with commitment to social justice, humanism and political neutrality and high morality.  The collegium is chosen by persons who by accident happened to be two senior mosts of the particular High Court and the Supreme Court.  But in practice there are no constitutional criteria for giving such crucial importance to the seniority of three.  It is time that this collegium syndrome laid down in the ruling in Supreme Court Advocate On Record Association vs. Union of India dt. October 6, 1993 where nine judges with a sharp division of opinion with a single judge deciding the majority whose information is fobbed of as the nation’s decision in the choice of the judges of higher courts of India. Neither UK, nor the USA nor the USSR has discovered this conceptual mystery of collegium.  Rightly the Law Minister Kapil Sibal has come to the correct conclusion that this riddle some way should go and a Commission with finer criteria and specific guidelines should be substituted and the independence and impartiality, morality and integrity should be constituted in the operational process.  But alas, the current Chief Justice Altamas Kabir and the one to succeed him Justice P. Sathasivam have in a casual gesture agreed with the collegium whatever it may mean.  I can only say I disagree as an Indian, as the follower of the Buddha and Gandhi and Guru Nanak and Vivekananda.  Dear Kapil Sibal, bring out your bill.  Let us have Parliament speak on it.  Let the nation publicly express the views so motivated in the nation’s Houses of people’s elected representatives.  We must enact a constitutional amendment called judicial charter.  Let the Constitution lay down the law for the creation and good conduct of judges.  In a separate forward way in an open accountable publicity process laid down by the representatives of the people become a sublime institution, the moral phenomenon an instrumentality of wonder and splendour for selection of members of the judiciary.  This and nothing short of this shall be the creative authority with power to appoint the supreme judicative Everest.

I am sure, this lengthy verbose paragraph critical of a ruling of a few judges of the Supreme Court will be misunderstood.  Who am I?  A small judge among a few 100 judges of India is misunderstood.  To be misunderstood is as Emerson pointed out an inevitable sign of eminence.  Let me quote him:

Is it so bad, then, to be misunderstood?  Pythagoras was misunderstood, and Socrates, and Jesus, and Luther, and Copernicus, and Galileo, and Newton, and every pure and wise spirit that ever took flesh.  To be great is to be misunderstood.

Taxation of Composite Transactions

(By  Jayasankaran Nambiar A.K., Sr. Advocate, High Court of Kerala)

The idea for writing this piece was conceived while rummaging through precedents in an attempt to give a clear opinion, to a troubled client, on the vexed issue of taxation of composite transactions. It is by now generally accepted that clarity of thought is a pre-requisite for clarity in expression. My attempt at achieving the latter led me on a search for legal principles, within a maze of judicial dicta, and this is what I came up with.

Prior to the 46th amendment to the Constitution, when Art.366 (29-A) was inserted, there was considerable litigation on the issue of whether a transaction amounted to a contract for sale of goods or one for service. It was consistently held that where the main object of the contract is the transfer of property in and delivery of the possession of, a chattel as a chattel to the buyer, the contract is one for sale of goods. Where on the other hand, the principle object of the work undertaken by the payee of the price is not the transfer of a chattel qua chattel, the contract is one of work and labour or for service. This distinguishing criteria worked well for identifying pure transactions of sales and services but could not solve the problem faced by taxing statutes while taxing transactions that involved both, the rendering of service and sale of goods, by the payee of the price. The Constitutional amendment resolved this problem, with regard to certain specified composite transactions (Art.366 (29A); sub-clauses (a)-(f)) by enabling the States to resort to an artificial division of those transactions into their individual components and thereafter to subject the sale portion to tax. In a sense, the amendment gave expression to the aspects theory of taxation, which is essentially an enquiry into legislative competence, and the power of a particular legislative body to levy a tax on a particular transaction. Legally speaking, there is nothing wrong in subjecting different aspects of a single transaction to tax by different legislatures, so long as the legislature in question has the competence, under the Constitution of India, to legislate in respect of the tax.

A clarification regarding the true scope and extent of the 46th amendment was given by the Supreme Court in the case of B.S.N.L. v. Union of India  (2006 (3) KLT SN 45 (C.No. 44) SC = (2006) 3 SCC 1) The court observed that the amendment essentially brought transactions, which lacked one or more of the essential ingredients of a sale under the Sale of Goods Act, 1930, within the ambit of the definition of sale for the purposes of levy of Sales Tax. The amendment specifically allowed for (i) works contracts, (ii) hire purchase contracts and (iii) catering contracts by legal fiction to be divisible contracts where the sale element could be isolated and subjected to sales tax. As regards other composite contracts, it was clarified that unless the composite transaction in truth represented two distinct and separate contracts and was discernible as such, the State would not have the power to separate the agreement to sell from the agreement to render service and impose tax on the sale. Thus, if the composite transaction represented two distinct and separately discernible contracts, the aspects theory could be invoked to separately tax each component. If the different components of the composite transaction could not be separately identified, the test for deciding whether a contract fell into one or the other category was to look into the substance of the transaction and ascertain the dominant intention of the parties. It was further elaborated that the issue of what is “goods” in a sale transaction remained primarily a matter of contract and intention and the courts would have to arrive at a conclusion as to what the parties intended as being the subject matter of the sale and purchase. The decision also clarified that the aspects theory cannot be invoked by the legislative body to include the value of the services in the sale of goods or the price of goods in the value of services.

Thus, based on the B.S.N.L. decision, if the composite transaction is of one of the categories mentioned in Art.366(29A), then it will be possible to resort to an artificial bifurcation of the sale component from the service component for the purposes of taxation. In the case of other composite transactions, the dominant intention test would have to be applied to ascertain, firstly, whether the transaction is in substance a sale transaction or one for service. If the transaction comprises of identifiable sales and service components, with identifiable values for each, then each component can be taxed by the appropriate legislature based on the aspects theory of taxation. In doing so, the caveat in B.S.N.L. - against inclusion of the value of the services in the sale of goods or the price of goods in the value of services - has to be observed.

It is important to note that while in B.S.N.L., the court clarified the scope of the aspects theory, the only caveat in B.S.N.L. regarding its application was that there should not be any overlap as regards the valuation of each aspect -that, for example, there should not be any inclusion of the value of the services in the sale of goods or the price of goods in the value of services. Thus, after B.S.N.L., one can say that it is only when the presence of any one aspect is so overwhelming in a composite transaction as to virtually render the other aspect insignificant, that the dominant intention test will apply to exclude the insignificant aspect in that transaction for the purposes of taxation. In all other cases, the aspects theory can be applied to segregate composite transactions into its constituent aspects for separate taxation by different legislatures.

Once a sale transaction is identified - either on application of the dominant intention test or by segregation of the sale component from the composite transaction - its liability to sales tax will depend upon whether the subject matter of the sale is “goods”. The concept of “goods” is one that has gradually developed through judicial interpretation of conventional definitions, taking into account legal and technological developments over the years. A survey of some of the important precedents will illustrate this.

In the case of Associated Cement Companies Limited v. Commissioner of Customs (2001) 4 SCC 598) the issue considered by the Court was regarding the valuation to be adopted in cases where drawings, designs, manuals etc., relating to machinery or industrial technology were imported. An incidental question that came up for consideration was whether knowledge, know-how and other intangibles when supplied on media, such as paper or diskettes, could be seen as a contract for sale of goods or one for services. The court found that although the subject matter of the contract was an intangible asset, the moment such information or know-how was put on a media - whether paper or diskettes or any other thing, what is supplied to the buyer becomes a chattel. Thus, the paper, diskette etc., came to be viewed as the goods supplied and the value of the paper/diskette etc., was seen as enhanced by the value of the information or know-how contained in them. The decision, while recognizing that the value of the intangible asset would enhance the value of the tangible asset on which it was contained, did not specifically go into the issue of whether the transaction for supply of knowledge or know-how was a contract for sale of goods or one for services. However, the observations in the judgement indicate that what weighed with the court was the fact that there was a supply of a product - either a drawing or a manual - the intellectual input in which greatly enhanced the value of the paper or diskette that was used as the media.

It must be noted that the above decision was rendered in the context of levy of customs duties and at a point in time when there was no levy of service tax on imported services. In such a situation, the only way to subject the import of services to tax was through the indirect method of viewing the product of the service as a paper (goods) whose inherent value was increased by the intellectual input it contained. It is doubtful whether a similar line of reasoning would be adopted now to bring to tax services that are imported into the country.

In the case of Tata Consultancy Services v. State of A.P. (2005 (1) KLT SN 13 (C.No. 15) SC = (2005) 1 SCC 308) the court was considering the issue of whether software recorded on a medium such as CD or floppy disk would attract the definition of goods for the purposes of levy of sales tax. It was held that the test to determine whether property is goods for the purposes of levy of sales tax is not whether the property is tangible or intangible or incorporeal. The test is whether the item concerned was capable of abstraction, consumption and use and whether it could be transmitted, transferred, delivered, stored, possessed etc. Applying this test, it was held that intellectual property, when incorporated on to a media and transferred, amounted to sale of goods.

The test was re-iterated in B.S.N.L. v. Union of India - where it was held that electromagnetic waves that functioned as the carrier medium for telephone signals could not be treated as goods since they were neither abstracted nor consumed in the sense of having been extinguished by their user. They were not delivered, stored or possessed. Nor were they marketable. It followed therefore, that there was no transfer of the right to use goods when a subscriber of a telephone service availed of a telephone connection since the subscriber was not put in possession of the electromagnetic waves any more than a toll collector puts a road or a bridge into the possession of the toll payer by lifting a toll gate. Goods had to be in existence and deliverable before the right to use them could be transferred.

In Sunrise Associates v. Government of N.C.T. of Delhi (2006 (2) KLT 700 (SC) = (2006) 5 SCC 603) a Constitutional Bench of the Supreme Court had to consider the issue of whether lottery tickets were goods for the purposes of levy of Sales Tax. The bench while considering the correctness of the ratio laid down in H. Anraj v. Government of Tamil Nadu (1986) 1 SCC 414)  held that lottery tickets were not goods for the purposes of Sales Tax laws by adopting an entirely different line of reasoning. The Court, differed with the view taken in Anraj - that the rights obtained by a holder of a lottery ticket were two fold viz., (i) a right to participate in the draw and (ii) a chance to win the prize - and found that rights obtained by holders of lottery tickets are indivisible and are in the nature of actionable claims and hence not liable to sales tax. It was clarified that actionable claims are claims either to a debt or to a beneficial interest in movable property and therefore in the nature of incorporeal rights. It was further clarified that an actionable claim is also a movable property and therefore “goods” in the wider sense of the term (@p.620) but it would not be subject to the sales tax laws because of the express exclusion of actionable claims from the definition of “goods” under the Sales Tax legislations.

In the case of Yasha Overseas v. Commissioner of Sales Tax (2008 (17 VST 182 (SC) a three member bench of the Supreme Court considered the issue of whether the earlier decision of the Court in Vikas Sales Corporation v. Commissioner of Commercial Taxes  (1996)  4  SCC 438) holding that REP Licenses were “goods”, stood impliedly overruled by the decision of the Court in Sunrise Associates and, if not, whether the ratio in Vikas Sales Corporation would apply in respect of DEPB licenses also. After analysing the judgement in Sunrise Associates, the court found that a finding had been entered in the earlier case that the word “property” occurring both in the definition of “goods” and “sale” carried different meanings. In the definition of “goods’ the word “property” was used to mean the subject matter of ownership i.e., the thing itself, whereas in the definition of “sale’ the same word was used to mean the nature of interest in goods i.e., title or ownership. It followed, therefore, that as a contract or evidence of a contract, a lottery ticket couldn’t be property - either as a thing of value in itself or title or ownership to anything. It was, therefore, that the sale of a lottery ticket did not involve transfer of “property” either in the sense of the thing itself (goods) or in the sense of title or ownership (sale). In the case of REP Licenses or DEPB licenses, their innate value and free transferability made them a marketable commodity and this was the point of distinction with an actionable claim - that the holder of an actionable claim may or may not be able to find a ready buyer at a given time or, conversely, a prospective buyer may not find any of the rights or claims available for purchase by going to the market at any time. Thus, REP/DEPB Licenses were held to be goods properly so called having innate value and a ready market whereas lottery tickets, being actionable claims without a ready market, were not goods properly so called.

The concept of “goods” for the purposes of levy of sales tax, therefore, encompasses tangible and intangible goods - those that answer to the description of “capable of abstraction, consumption and use and whether it could be transmitted, transferred, delivered, stored, possessed, have an innate value and a ready market” - and excludes only those goods, or rights and interests over movable properties, that are expressly excluded by the legislative definition.

In the post 46th amendment era, therefore, the position with regard to taxation of sales and services - shorn of verbose rhetoric, lengthy reasoning and avoidable legalese - can be summarised as follows:

• If the transaction is a sale - its taxation will depend upon whether the subject matter of the sale is movable property or immovable property. If the former, then a further enquiry will have to be made as to whether it satisfies the definition of “goods” and whether the sale in question is a local sale, a sale in the course of import or export or an inter-state sale.

• If the transaction is a service - its taxation will be under the Finance Act, 1994, as amended, dealing with Service Tax.

•  If the transaction is a composite one comprising of separately identifiable sales service components - the legislative bodies having competence to do so under the Constitution will separately tax the different components. It has to be ensured, however, that there is no inclusion of the value of the services in the sale of goods or the price of goods in the value of services.

•  If the composite transaction is one where the sales and service components are not separately identifiable or discernible, then one has to apply the dominant intention test to ascertain whether the transaction is, in substance, a contract for sale or a contract for service.

They Fenced with Words

(By M. Karunakaran Nambiar, Advocate, Kochi)

Humour, wit and repartees always fascinate. Courts of Law, Parliaments and intelligent conversations have been the scene of several verbal duels.

Humour in Courts have always been relished in bygone days. When the great Norton was arguing a case, the judge remarked “What I hear through the left ear, I leave through the right ear.” The Counsel immediately replied “That, I understand, for, there is nothing in between.” Today, the Judge would have been red faced and the Counsel would have met his Waterloo !

Once when Nugen Grant was vehemently arguing a point, he found that Judge scarcely understood the point. He told his junior who was assisting him in a low voice “The Judge is a Fool.” The Judge Couts Trotter asked Mr.Grant “What is it Mr.Grant.” He replied “Not intended for your Lordship’s ears.” Pat came the reply “ I am sorry I heard it.” Imagine such a situation today. On one such occasion, a Lady Judge before whom, a number of cases were posted, enquired whether there were cases that could quickly be disposed. One Lawyer stood up and said “ I have a short one.” The Judge remarked “Long or short, I can cope with both.”

Once a Senior Counsel was trying his best to impress an English Judge on several points. The Judge rudely rejected the points with the remark “Nonsense.” Totally exasperated, the counsel remarked "This morning , nothing but Nonsense seems to come out of your Lordship’s mouth." The Judge became tight lipped ! Today the Counsel would have had to join the IPL !

During the course of an argument, the counsel cited a decision and wanted the Judge to read a few pages. The Judge said “Read it as part of your arguments.” After some time, the Judge asked which was the page he was reading. The Counsel replied “There are no pages in my arguments.”

Persuasive arguments couched in polite language have a beauty of it’s own. Mr.Ethiraj was adept in persuasive advocacy. Once when the case was ready for arguments, the Judge told Mr.Ethiraj that he may start his arguments. Mr.Ethiraj submitted that because of the sunlight, he was not able to see their Lordships faces. The Judges remarked “That does not matter. We can hear you.” Ethiraj pleasantly submitted “I am better known for studying the faces of Judges before whom I argue than studying Law Books at home.”

Once an irate Judge told the Counsel “I am unable to understand you.” Pat came the reply “I can only give an argument not understanding.” Once a Judge who lost his patience said  "If this is the proposition of Law, I would go home and burn my books.” The Lawyer replied. "No My Lord,go home and read them.”

When the great Alladi was arguing a case before the Supreme Court, he cited a passage from the book “Twilight on the Supreme Court” by Professor Edwin Corwin and handed over the book to the Judges. The Judges were not impressed by the size of the book and handed it back to the Counsel with a brusque remark “We do not want Twilight or Dawn here.” Alladi reacted and said “Your Lordships appear to be misled by the small size of the book.Perhaps you are not aware that Professor Corwin, the author knows much more Constitutional Law than all your Lordships and I put together.” That is fearlessness ! Nobody can tame the human tongue. It is like fire. A scintillating star that flashed across the Indian Legal Fraternity is Eardley Norton. He was a master of Eloquence and repartee. Once when Norton was arguing a case, he noticed that the Judge was enjoying a quite nap nodding all the time ! Norton felt irritated and pushed down all the books that he had brought. They fell down with a thump and the Judge Sir John Wallis woke up with a jerk and asked Norton what the matter was. Norton calmly replied “Nothing of importance My Lord, it is only the impertinence of the Daffedar to think that he can go to sleep in Open Court just as if he is also a Judge.”

An important case that needed an early disposal was posted before a Special Bench before Justice Muthuswamy Iyer and another. All preparations were made and Norton was to appear for the appellant. The day the case was to be taken up for arguments,Norton stood up and said “The Appellant is dead and the case cannot go on today.” Justice Iyer was disappointed and His. Lordship remarked “It is allright to say that. The case is posted specifically in the Special List” Norton very coolly replied “I am very sorry, my client never told me that he was going to die. I received the Telegram only this morning. Had he consulted me, I would have told him to die three weeks later and not inconvenience your Lordships.” There was a roar of Laughter!

A Judge of the Kerala High Court was in the habit of passing the case file with his left hand to his Court Officer when he decided to reject the petition and used his right hand when he had made up his mind to admit it. On one such occasion, when he folded the papers, took them in his Left Hand, the Counsel said “No My Lord, it may be the right hand.” The Judge smiled and admitted the case.

Chief Justice V.P.Gopalan Nambiar used to smile before he dismissed a petition. On one occasion, when he was about to smile, the Counsel who was arguing the case said “No My Lord, not yet time to smile”.

There is an old story that when Augustine Ceasar visited Greece, he espied a young man who resembled him. He called him “Young man, had mother been to Rome ?” He unconsciously answered “No, my father had been !” The Emperor smiled.

During an election fund raising Campaign of Abraham Lincoln, an admission fee of One dollar was collected. Just before Lincoln was about to begin his speech, a Gentleman from the audience shouted “Do I have to pay a dollar to see the Ugliest face in the World ?” Everybody present was shocked. Lincoln calmly said “ I am afraid Sir, you are charged for that privilege. I have it for nothing.” He turned the table against the heckler.

Parliaments have also been the scene of verbal duels and scintillating wit. Nancy Ashtor, a member of the British Parliament told Mr.Winston Churchill “If you were my husband, I would poison your coffee”. Mr.Churchill without batting an eyelid retorted “In that case, I would drink it.”

Piloo Mody was noted for his humorous replies. On one occasion, a member noted that the back of Modi was turned towards the Chair and said that it was a sign of disrespect. Modi shot back and said “I am round, I have no back or front” Everbody laughed.

Benjamin Disraeli and Gladstone were two great Parliamentarians who took pot shots at each other. Some Journalist once asked Disraeli what was the difference between “misfortune” and “Calamity”. Disraeli replied “If Gladstone drowned in the Thames, it would be a misfortune, but if somebody rescued him, it would be a calamity”.

When the Chief Minister made an announcement that he had made arrangements to import two Zebras from Australia for the Zoo, a member who was dozing suddenly woke up and said “One for the reserved caste.” When S.K.Chettur faced the interview Board, he was asked “How many steps have you climbed to reach this Hall.” He replied “Exactly the same number of steps I have to climb down when I go back.”

During the Second World War, Winston Churchill and President Roosevelt were closeted together in a Hotel to discuss war strategies. It so happened that when Churchill stepped out of his bathroom completely naked, he was confronted by the embarrassed American President. Churchill immediately said “I have no secrets to hide from You.” They had a hearty laugh !

To be endowed with a sense of Humour is a divine grace. It is a quality that enlivens Human relationships, creates an unconscious bonhomie, a sense of togetherness, a broadminded perspective of Life and an ego-negating bond. In essence, the art of conversation, which is the basis of Human interaction, is not only to say the right thing at the right time, but also to leave unsaid the wrong during the tempting moments!

Do Judgments Need to Speak ?

(By P. Deepak, Advocate, High Court of Kerala)

‘Why do we call a bench of two judges a “division bench”?’The old counsel stifled a yawn and turned aside to confront the speaker. The whirr of the several pedestal fans placed along the side passages of the massive court hall was sleep-inducing and he had just snuggled deep into his uncomfortable chair and stretched his stiff knees with the smug certainty of an experienced hand that the immense bulk of the leaned counsel spilling over on all sides in the chair in front of him would shield him from the over-reaching judicial gaze. The query came from his keen and intrusive junior who had a knack of coming up with the most uncomfortable questions. He resented the intrusion and was on the point of chiding the boy in no uncertain means for having disturbed his peace when he realized that he did not know the answer himself.

Long forgotten mathematical operations whizzed through his mind. If a bench comprising a solitary judge is a ‘single bench’ he wondered how a bench comprising two judges could be a ‘division bench’. Why not a ‘double bench’ like a ‘double fault in tennis? Only stands to reason, he reflected. He was certain that one plus one equalled two. But that was ‘addition’ and not ‘division’. The junior was looking into his face searchingly for enlightenment and the old counsel realized that he had to come up with something really good lest the halo of a ‘know-all’ carefully spun around him would be ruptured irretrievably. He had to save his face.

‘Listen boy’, the old counsel began hesitatingly, ‘when you divide a thing wouldn’t you not get more than one of that thing?’ The junior agreed that this was definitely the case. His keen analytical mind conjured up the scene of breaking a stick down the middle which leaves one with two sticks. ‘Therefore’, the old man continued gathering courage ‘when you have two judges sitting together they constitute a “division bench”. The extreme note of finality and emphasis with which he finished the last sentence quelled whatever other queries that were beginning to burgeon within his junior. The old man closed his eyes and congratulated himself on his narrow escape.

‘Sir’, his junior’s hoarse whisper stirred him again. ‘Now what, the old counsel asked in a plainly annoyed tone. ‘Sir, I have been watching the proceedings all day, I am yet to see the junior judge put in a word edgeways.’ The old counsel was impressed. His junior appeared to be learning fast. The old man raised his head to scrutinise the scene being acted out on the judicial pulpit. The senior judge was frisking the papers, dictating judgment and tearing into counsel, all at the same time. Beside him sat his companion judge silent as a tomb with a beatific smile wreathed across his dazed face. Every now and then he would steal a glance at his elder brother, who, obviously oblivious of his presence, went about his business with extreme gusto.

The old man smiled. He was only too aware that his explanation of a ‘division bench’ had not gone down as convincingly with his junior as he would have liked. Now he chanced an opportunity to further dilate on his theme. The old counsel took a huge breath and concluded with a flourish- ‘Now, you know why it is called a ‘division’ bench and not a ‘double’ bench. The sum total of the effort of two cannot and should not exceed that of one.’ The junior was plainly too dazed at this ratiocination. The old counsel finished with a sigh and rose to go.

The slanting rays of the late afternoon sun streaked the empty corridors as the old counsel made his way to the stairway. He halted in midstride and listened to the sounds that came from a disused court hall. He peered inside to see men scurrying around arranging chairs and cross-checking the acoustics. He wondered whether the court hall was being readied for a new master. The bench strength had dwindled considerably by the recent spate of retirements and transfers and time was ripe for injecting some new blood. But the old counsel was sceptical about any tangible decision being taken by the present judicial conclave. His eyes wandered skyward searching for indications of any ‘white smoke’ emanating from the rooftops to signal anything to the contra. He peered closer into the hastily readied hall. It resembled more of a media-centre, a place for press-briefings, than a sombre court hall. His fingers unconsciously rummaged the cavernous pockets of his weather-beaten coat and touched the morning paper secreted inside. Pulling it out he read for the second time that day the unenviable plight of a judge of a neighbouring court ‘explaining’ and ‘clarifying’ to the media the sub­text of the judgment delivered by him the previous day and which had invited very unsavoury comments on the social network.

Perhaps, the old man reflected, the room was being readied for holding press-briefings where their lordships would, for the benefit of the media, explain and clarify their judgments before going to press. An interesting thought flitted through his mind—Very soon, he mused, the registry might insist that the memorandum of appeal shall be appended not only with a certified copy of the impugned judgment but also authenticated transcripts of the press-briefings given by the concerned judge ‘explaining’ and ‘clarifying’ his judgment. The appellate bench would then, undoubtedly, have the luxury of considering not only what the learned judge actually recorded in his judgment but also what he actually meant while recording the same. So much for language being a channel for communication!

The old counsel remembered reading somewhere that in the United States of America camera access to court room proceedings is permitted with the objective of promoting transparency, fairness and public awareness of the working of the judicial system. As far as he could say there was no express constitutional or statutory interdict against adopting such a procedure. In such a scenario, the old man reflected, the day would not be far away when learned counsel would insist on all court-halls being wired with close-circuit television to record the proceedings in the court room. Definitely not actuated with any lofty ideals of transparency or fairness; rather, to have digital recordings of the submissions and contentions urged by them during the course of hearing. It was only fair, the old man thought, that the judges, after having heard counsel and reserved judgment, while pronouncing judgment months (years?) thereafter, do not lightly gloss over inconvenient contentions or a fickle memory with that one liner- ‘No other points were urged or canvassed’. Along with the memorandum of appeal video footage of the proceedings in court can be appended to assail any such finding.

In the above scenario, reflected the old counsel, the law laid down by the Apex Court in State of Maharashtra v. Ramdas Shrinivas Nayak and Anr. ((1982) 2 SCC 463) and followed up to the present day that as regards what transpired at the time of hearing the record in the judgment of the court is conclusive of the facts so stated and cannot be contradicted on affidavit or by other evidence can then be safely consigned to flames. He moved on whistling under his breath that old Dylan strain.....’ if your time to you is worth savin’ then you better start swimmin’ or you will sink like a stone for the times they are a-changin!’

Judgments will cease to speak!

A Catena of Rulings for Reference

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

1. Equality and Arbitrariness are sworn enemies. 

2001 (1) Maharashtra Law Journal 63 (Para 6), Gulb v. Exe. Engineer (T.K. Chandrasekhar Das J.)

2. To perpetuate an error is no heroism. To rectify it is the compulsion of judicial consciousness.   (AIR 1993 SC 1048, (Hotel Balaji v. State of A.P.) Para 10 Extract.(AIR1985 SC 1587 at 1587).

3. There is nothing called “Mild Lunatic”   (1996) 1 SCC 720= AIR 1996 SC 1002. (Karumanda Gounder v. Muthuswamy Gounder).

4. Rule of man should not be allowed to prevail over rule of law. (1998) 3 SCC5, ILR 1998 Kar. 1421 FB) (Central Board of Secondary Education v. Nikhil Gulati.)

5. Judgment of a court should not be interpreted as a statute  (AIR 2008 SC 2187 Para 19. (Dadudayal   Maha Sabha v. Mahant Ramnivas)

6. Court has to say under what section the court passes an order. Simply stating about the plaint and direction to pay additional court fees is not sufficient. CRP 1073 of 2007 dt. 26.6.2008 (M.Sasidharan Nambiar J. ) (unreported)((Minita Daphane Nitto v. Margaret Benedict Rodrigues)

7. Knowledge to counsel is knowledge to party. (2005) 7  SCC 300)  Para 11. (Damodaran Pillay v. South Indian Bank). But this principle is not applicable to a petition filed for setting aside an ex parte order. (2008) 7  SCC 663 (para 25) Rabindra Singh v. Financial Commissioner.

8. If order is pronounced in the presence of  both sides it is enough. It is knowledge to party. (1994 (1) KLT 82=1993(2) KLJ 1057, Selvi v. Nataraja Mudaliar ( 1992(2) KLT 206 = 1999(2) KLJ 216)  Moorthy v. Ramachandran.

9. There can be a lease without consideration (AIR 1947 Cal. 440, [Rabindranath v. Jog Joban), AIR 1925 Nagpur 90 at 92.(Amarchand v. Sardar Singh)

10. Principle that “King can do no wrong” is not applicable in India. (2000) 3 SCC 195) (paras 17,20).

11. The Counsel for a party echos the Cride Coeur of his client (case of client) the warp and woof of the same (2013 (1) MLJ 426 para 2). M. Murugan v. D. Shanmugham.

12. Decreeing a suit on basis of assertions in plaint even if there is no rebuttal or contra evidence is illegal. Plaintiff has to prove his assertions (2012) 5 SCC 611 - M. Ramachandrappa v. C.C. Chandra Gouda).

13. Long standing and constitutionally affirmed decision or concepts are presumed to be settled and must be accepted. Not proper to depart (1995) 6 SCC 326 (B),  1993(1) KLT 619 = 1993 (1) KLJ 603), S.M. Thirumala Dewaswam v. Land Tribunal ( 1994) 4 SCC 8 para 4, AIR 1992 SC 2003).

14. Stay of execution of decree can be obtained in anticipation of execution, even if appeal is filed but not registered.(AIR 1933 Bom.118 at 121,(Lakshmanan v. Shidhar) AIR 1952 All. 682 at 686,(Dhusia v. Mohd. Tasa Dduq Husain) 41 Cal. Weekly Notes 374.

15. Initials as against full signature is legal. (Endorsement in pronote). (AIR 1957 Mad. 8 (para 33), Meenakshy Achi v. P.S.M. Subramaniam Chettiar.

16. Undated Medical Certificate is not acceptable in evidence unless the doctor who issued the Medical Certificate is examined. (ILR 2011 Kar. 2763), (Section Officer Hescom Ltd. v. Parawwa).

17. In some courts in Kerala, some time plaints, written statements, affidavits, interlocutory applications are not seen dated. If these are not dated, they need not be received by court. (2011(3) KLT 91 (K.T. Sankaran J.), Maya R. Nair v. Chirayil A.S. Krishnan).

18. Details of Registers to be kept in Registry Office. Rule 14 of Kerala Registration Rules. Appendix I

Book No.l - Registration of non testamentary documents relating to immovable property.

Book No.2 - Record of reasons for refusal to register.

Book No.3 - Register of wills and authority to adopt.

Book No.4 - Miscellaneous.

19. Registration of a document in a particular volume has a bearing on its interpretation whether it is a will or a settlement (1959 KLJ 912  (Ammukkuty Amma v. Krishnan Nair), 1956 KLT 516 (Janaki v. Mathevi Nochi).