Velappan : ‘Paradeigma’ of Paralegal Assistant

T.P. Kelu Nambiar, Sr. Advocate
 

Sri N.K.Velappan Elayidom passed away on the 4th day of April 2006. I saw him sitting in the house of his daughter at Perumbavoor, on the 18th day of March 2006, with meditative calm. He looked pleased as Punch to see me. When I shook hands with him, his hand felt cold and clammy. He was found wearing a nervous smile. He had been in and out of hospital for the past few weeks. At 70, his death feels premature, because, is it not said, life starts after 60. The time span of an individual is, of course, kept hidden.

I feel too sorrowful to write an obituary or a tribute to his work and life.

The Velappan diary is not smudged with any controversial foot-note.   Let me assemble my thoughts about him;  and say,  he did a good job of all that he did.

Without Sri.Velappan,  the Kerala High Court Advocates’  Clerks Association looks a lot poorer. He was the Association’s early bird, its founder President;  and he died as its President.  Under his leadership,  the Advocate-Clerks showed spirited togetherness and strength, because he was a uniter,  not a divider.

As a busy clerk,  Sri.Velappan had a rushed life.  Several cases of his Adhivaktas’  office, (M/s. Chandrasekharan & Chandrasekhara Menon), were riding on his 70-year-old shoulders. He did not have any stolen life.  Believe it or not, I have not seen a more competent para-legal assistant than Sri.Velappan,  I do not require any computer  compilation of ranking and honours for holding the view.  What remains unsaid is that he has proved his worth as an officer in lawyer’s chambers,  who could absorb its sighs and sounds. And this is far from the last word on him.  He concluded his career going out on top.

Sri.Velappan was the energy reservoir of the Advocate-Clerks Association. As one of the patrons of the Kerala High Court Advocates’ Clerks Association,   (Advocate Sri.K.P.Dandapani being the other  Patron),   I have a lot to be thankful to the Association headed by him. I have always had affectionate respect for him. He was a man of impressive pedigree. He possessed superb histrionic talents.  He had much interest in the performing arts.  One of his daughters is an accomplished Bharatha Natyam artist. If the face is the index of mind, Sri.Velappan will qualify as a gentleman. He lived a good life with good conscience. I shall ever remember his frank statement, about my mannerism while arguing in court: “Sir,  you always argue with your carpenter’s pencil”. Very recently,   the veteran Advocate-Clerk told me that   ‘advocacy’  today sounds like the wearied notes of an old song.

Advocates and Advocate-Clerks are on the same page. For advocates,  their clerks are brothers-in-law.  But Advocate-Clerks seem to have no boots on the High Court premises, though they make long strides. A judge’s death is condoled,  before a Full Court; a lawyer’s death is referenced before the Chief Bench. I have no discomfort over them.  But,   I have no comfort over the fact that an advocate-clerk’s death is ignored,  or  un-noticed,  though he is an integral part of the administration of justice.   “Even conservatism must move forward, or  lose its relevance”,  said T.S.Eliot. These are days when even Toilet Summit is held.

I should be thankful to Advocate Sri.Siby Mathew for providing space for this write-up,   in his esteemed Journal. Sri.Siby Mathew told me that this is  the first time  such an article about an Advocate-clerk is written by a lawyer and given for publication in the Kerala Law Times. Let this line and strain increase,  is my prayer;  and hope,  too.

Strengthen Judicial Standards, Maintain Independence of 
Judiciary on Latimer Model

(By Dr.Pauly Mathew Muricken, Advocate, High Court of Kerala; Research Guide,

National University of Advanced Legal Studies, Kochi)

 The Judicial Standards and Accountability Bill, 2012, already passed by the Lok Sabha on March 30, 2012 and now awaiting the nod of the Rajya Sabha, have of late kicked off a legal and public debate with the Judiciary represented through the Chief Justice of India openly expressing certain reservations about the Bill. It is noteworthy that Judiciary has not made any serious objection as such to the attempt of the Parliament to go in for legislation bringing the higher judiciary within the regulatory framework or to formulate judicial standards and code of conduct for their effective functioning and governance. It may be recalled that the Supreme Court itself, way back in 1997, when Justice J.S.Verma was the Chief Justice, had formulated a Charter in the form of a Restatement of the values of Judicial Life which was formally approved and adopted at the Chief Justices’ Conference held in 1999. The said Charter provisions though lacking statutory recognition still binds the Judges of the higher judiciary even today sans legislation operating in the arena.

The higher judiciary comprising of the Supreme Court and the High Courts armed with the power of judicial review is largely perceived by the people of India as an institution that protects their fundamental rights, assiduously guards the basic structure and features of the Indian Constitution and effectively applies brakes on the uncontrolled and arbitrary exercise of power by any public functionary. Constitutional provisions and specific statutes guarantee independence of the judiciary in several ways in order that it is able to perform worthily well its function of upholding the majesty of law and to act as the custodian of the Constitution. The constitutional provisions providing for security of tenure, guaranteed remuneration, immunity from legal proceedings in relation to discharge of official duties, and the complex procedure envisaged for removal of judges amply bring forth and constitute the primary elements of the constitutional scheme on  independence of the judiciary that enable judges to dispense justice without fear or favour. When two out of three organs of the State fail to live upto their expectations, it is the judiciary which is looked upon by the people as the island of hope, source of consolation and as the last place of resort where justice will be delivered despite an expensive and sometimes long wait. 

It is true that in the past there have been few instances of deviation from approved judicial standards of behavior from a small segment of the higher judiciary which has shaken people’s confidence in judiciary to a certain extent. But that by itself has not made the role of the judiciary irrelevant or cast any doubt on its ability to perform the assigned role. Some say that the concentration of power in the hands of the judiciary itself to decide whether one of its members should be proceeded against for violation of the code of conduct and approved standards of behavior is like allowing the judiciary to seek impunity in the name of independence. Critics also point to the court practices that at times create an impression of conflict of interests. As the matter now stands, there are serious differences of opinion among different stakeholders as to how judicial incapacity and misbehavior should be tackled and by whom. It is in this factual background that the implications of the standards of behavior and accountability mechanism envisaged in the Bill provisions requires to be assessed in the light of internationally approved principles and best practices underpinning the concept of independence of the judiciary.

 The new Bill seeks to lay down standards of behavior for the judges of the Supreme Court and the High Courts and to establish a mechanism for receiving and investigating complaints of misbehavior or incapacity of judges. The Bill is also intended to replace the Judges’(Inquiry) Act, 1968.  On a close analysis and understanding of the Bill provisions, one can find that all that the Bill aims at is to give statutory character to the 1999 charter already binding on the Judges and to further provide for any deviation or violation to be treated as judicial misconduct for which the Judge concerned will become personally answerable. The only departure contained in the Bill provisions is on a controversial clause which was originally incorporated in line with the recommendations of the Parliamentary Standing Committee on Law and Justice providing to the effect that “No judge shall make unwarranted comments against the conduct of any constitutional or statutory institution or officials at the time of hearing matters in open courts or during the course of hearing matters”. In the wake of widespread criticism that this clause is tantamount to gagging judges, the Government was initially constrained to drop this controversial clause from the Bill. However, the said clause is again attempted to be reintroduced in the Bill in some form, going by the statements of the present Union Law Minister.

  There is a criticism raised by the legal academia that unlike their western counterparts, Judges in India are in the habit of speaking much from the Bench during the course of hearings, or even at the admission stage. Politicians are also equally annoyed and disturbed by this trend as it often hurts them. They feel that judges should be silenced. But viewing this practice in the larger perspective, what is it wrong for a judge to speak from the Bench? Judicial service is not an ordinary government service and the Judges are not government employees as such. Judges hold the public office and their function is one of the essential functions of the State. In discharge of their functions and duties, they represent the State and act in public trust. 

   Judicial observations have become an integral part of judicial process and practice. It has positive as well as negative ramifications. The positive side of this trend is that Counsel gets an opportunity to know what transpires in the mind of the judge so that the counsel can make appropriate clarification as the occasion demands or to limit the reliefs claimed in the case. Thus, it stands to the advantage of the counsel and the litigants who are active participants in the system of administration of justice. That apart, Judges are not monks to remain only as silent spectators or to display only their inner wisdom, but they have a pro-active role to play in the process of administration of justice. The negative aspect of such a tendency as pointed out by critics is that Judges at times sprinkle their comments with harsh expressions which at times bring displeasure of the legal fraternity and the public. But this is not a justification for making them mum or for treating all observations made by them against public functionaries during the course of hearing as unwarranted and inappropriate. Such judicial observations made in the past have contained the aspirations of WE THE PEOPLE OF INDIA for whom Courts exist and to whom the source of judicial power can be attributed. Such observations at times have persuasive effect and far reaching consequences on the Government and public functionaries making them subject to the rule of law and keeping them within their limits. It has always paved the way for development of law and reformation of the society by its value addition, though at times it earned the wrath and displeasure of the Government who want the judiciary to act as per their dictates.  Whatever that be, law making agency cannot make a distinction between the comments made against constitutional or statutory body or comments made against ordinary litigants. Based on the principle of access to justice and equality of treatment among litigants, such classification is only or tends to be arbitrary and unreasonable lacking intelligible differentia having regard to the object sought to be achieved. 

   The bill, as it now stands, the main apprehension voiced by the judiciary is on the contentious provision which enables any individual to make a complaint against a Judge of the Supreme Court or of the High Court. No doubt there is a Scrutiny Committee to examine each complaint for its genuineness, but quite unfortunately, a wrong signal has been sent by the reduction of punishment for frivolous and vexatious complaints from rigorous imprisonment of upto 5 years and fine of Rs. 5 lacs as conceived in the original version of the Bill to simple imprisonment of 1 year and fine of Rs. 50,000/- as now envisaged and included in the Bill passed by the Lok Sabha. This would enable vexatious complainants and unscrupulous litigants to take undue advantage of the situation and to make false complaints against judges making it difficult for the judges to discharge their functions independently and without fear or favour. There can be occasions when such persons may also use this process to scandalize or intimidate the judges. This ultimately would affect the concept of independence of judiciary, which is recognized as the basic structure of the Constitution. (For independence of judiciary as the basic structure of the Constitution, see the pronouncements of the Supreme Court in S.P.Gupta v.Union of India (AIR 1982 SC149) and Shri Kumar Padma Prasad v.Union of India (JT 1992(2)SC247). This may ultimately paralyze the judicial system by placing unwarranted inroads into its functioning. 

  The Bill envisages a three-tired mechanism for enquiring into the complaints against judges of the higher judiciary. At the topmost tier, there is the Oversight Committee and at the middle level there is the Scrutiny Committee and at the lower level is the Investigation Committee. The Oversight Committee receives the complaint or materials on a reference made by the Parliament which is then referred to the Scrutiny Committee. Once the Scrutiny Committee finds a complaint acceptable on merits, it will then be referred to an Investigation Committee which is appointed by the Oversight Committee for the purpose of regular inquiry. The Oversight Committee, based on the findings of the Investigation Committee, will thereafter decide either to drop the case, or to issue a warning to the Judge or to advise him to voluntarily resign, or to recommend to the President his removal from office in accordance with the provisions of the Constitution.   

   As per the Bill provisions, the panel to scrutinize the complaints will be constituted in the Supreme Court and in every High Court, comprising a former Chief Justice and two sitting Judges. It is quite undesirable that sitting judges of the same High Court scrutinize complaints against their own colleagues. The Oversight Committee will consist of a retired Chief Justice of India as its Chairperson, a Judge of the Supreme Court, a Chief Justice of the High Court, the Attorney General of India, and an eminent person appointed by the President of India as its members. However, the Bill provisions are silent regarding the composition of the Investigation Committee and the qualifications of its members or with reference to the service conditions of the members of the Oversight Committee. This is a serious lacuna in the Bill which needs to be addressed and resolved.

The composition of National Judicial Oversight Committee does not by itself adequately provide for the independence of the Oversight Committee. This is primarily for two reasons. Firstly, the non-judicial member and the chairperson will be appointed by the President on the recommendation of the Central Government. This is not an objective and transparent process of selection of the members of the Oversight Committee. Secondly, the inclusion of Attorney General is quite inappropriate on grounds of conflict of interests. The Attorney General, being the first Law Officer of the Central Government, may have to appear before a Judge against whom a complaint has been made before the Oversight Committee of which he happens to be a member. 

  This situation warrants a different mode of approach and selection of members of the Oversight Committee. The sitting judge of the Supreme Court to be nominated as a member of the Oversight Committee may be selected by a collegium comprising of all puisne judges of the Supreme Court. The Chief Justice of the High Court to serve as a member may be selected by the collegium of all Chief Justices of the High Courts. The Chairperson and two non-judicial members of the Oversight Committee may be selected by a committee chaired by the Vice-President of India, with the Prime Minister, the Chief Justice of India and the Leader of Opposition of the Lok Sabha being the other members of the selection committee. Such a system of selection if envisaged would appear to be more impartial and transparent. The recommendations of the Oversight Committee should be binding on the Central Government. The 195th Report of the Law Commission of India on the Judges’(Inquiry) Bill, 2005 endorses this proposition.

    The legislative attempt made by the Judicial Standards and Accountability Bill, 2012 to define standards of behavior for judges violates the principle of independence of the judiciary on two grounds. Firstly, Parliament being the authority to recommend the removal of a member of the higher judiciary cannot also define standards of behavior for a judge. Secondly, Article 124(5) of the Constitution only empowers the Parliament to make a law to regulate the procedure for the presentation of an address to the President seeking the removal of a judge and the investigation and proof of misbehavior or incapacity of a judge. There is no provision in the Constitution under which Parliament can make a law to lay down standards of behavior for judges. The Constituent Assembly Debates clearly reveals that the consensus view among the members of the Constituent Assembly was for letting the judiciary evolve for itself a code of conduct rather than empowering Parliament to define it by statute. This being the position, the correct approach would be to make the National Judicial Oversight Committee a constitutional body by carrying out necessary constitutional amendment and the Oversight Committee be empowered to evolve codes of behavior for judges from time to time without dictates or interference from any other body or authority. This would also prove to be in conformity with the principle of independence of the judiciary.

   No doubt, a system for investigating allegations of incapacity or misbehavior of judges is absolutely necessary for an accountable judiciary.  As recently observed by the Apex Court in R.C.Chandel v. High Court of M.P. (2012 (3) KLT SN 142 (C.No. 145) (SC) =  (2012) 8 SCC 58, para 29 “…. a Judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the core with high moral values. The standard of conduct expected of a judge is much higher than an ordinary man. For a democracy to thrive and the rule of law to survive, justice system and the judicial process have to be strong and every judge must discharge his judicial functions with integrity, impartiality and intellectual honesty”. However, there is equally the need to balance judicial accountability with the need for protecting independence of the judiciary. The international view as expressed in the Latimer House Principles of 2003 is that judicial oversight mechanisms must be supported by the principle of independence of the judiciary. This would require that responsibility for oversight must be performed by a body/institution predominantly comprising of members with the background in the judiciary.  

    The issue of judicial accountability and maintenance of judicial standards as well as the concept of independence of judiciary, both being of sentinel importance, it is imperative that the Government and the Judiciary sit together and iron out the differences for sustainable and harmonious implementation of the provisions of the new legislation. The need of the hour is to carry out improvements in the bill provisions for mutual satisfaction and contentment of the two pivotal organs of the State. Though it is in the wisdom of the Parliament to determine the structure and composition of the regulatory mechanism, the attempt should be to establish a control mechanism that would promote accountability of the individual members of the higher judiciary in the light of internationally recognized principles and best practices and without undermining the concept of independence of the judiciary. Such a regulatory body must be robust and above reproach and the process of selection to the body so objective and transparent so as to ensure the highest degree of respect and dignity for the institution. Equally important is that such a body must be granted a measure of autonomy necessary for its functioning.

Gopakumar v. State of Kerala - 2012(4) KLT 755 - 
Requires Reconsideration - Regarding Maintainability of 
Anticipatory Bail Application filed by a Juvenile

(By D. Pappachan, Retd. District Judge, Chairman, Permanent Lok Adalat, Ernakulam)

In the decision referred to above the Hon’ble High Court of Kerala held that “any person” appearing in S.438 of the Criminal Procedure Code 1973, for Short the Code, includes a juvenile in conflict with law and therefore an application for anticipatory bail by such a person is maintainable. But, with great respect, I beg to differ from some of the views expressed by the Hon’ble High Court in that decision.

2. No doubt, as pointed out by the Hon’ble High Court in that decision, a juvenile in conflict with law is a “person” within the meaning of that word in S.438 of the Code. But the question is whether such a person is entitled to canvass for the discretionary relief covered by S. 438 of the Code.

3.  Here at the outset it is necessary to point out that the pre-requisite for the exercise of jurisdiction u/S. 438 of the Code is accusation of a non-bailable offence. But going by Section 10 to 12 of the Juvenile Justice (Care and Protection of Children) Act 2000, for short the J.J. Act, a juvenile is incapable of committing a non-bailable offence, as that expression is understood in the legal parlance, in that an offence howsoever grave it may, when committed by a juvenile, becomes bailable. It is also pertinent to note that S.12 of the J.J. Act begins with the words “When any person accused of a bailable or non-bailable offence and apparently a juvenile.” Therefore it is very clear that, when a juvenile is committing an offence, there is no distinction whether such offence is bailable or non-bailable, particularly for the purpose of bail. S.12 of the JJ. Act thus mandates that, irrespective of whether the offence committed by a juvenile is bailable or non-bailable, as of right he or she is entitled to be released on bail, in the same manner in which an adult who is accused of a bailable offence is entitled to be released on bail u/S. 436 of the code. If that be so, there is no question of a juvenile committing a “non-bailable offence” as distinguished from a bailable offence. In other words the precondition to exercise jurisdiction u/s 438 of the Code simply does not exist in the case of juvenile in conflict with law.

4. In this context one should remember that the very concept of pre-arrest bail is founded on the policy of law that innocent people should not suffer the ignominy and public disgrace at the instance of influential people, who may try to implicate their rivals in false cases. But this should never happen in the case of a juvenile, in view of the safe guards provided u/S. 10 to 12 of the JJ. Act. Here it is also important to note that every possible situation, which a juvenile in conflict with law is likely to face, is elaborately dealt with under the relevant provisions of the JJ.Act. 

5.   Yet another anomalous situation that may arise in this context is that, in an anticipatory bail application no blanket order could be passed insulating the applicant from the apprehended arrest and therefore pre-arrest bail could only be granted on conditions. But the condition imposed by the Sessions Court or High Court u/S.438 of the Code, in the case of juvenile in conflict with law, must be in conformity with the provisions of the JJ. Act. In the reported decision itself the Hon’ble High Court, finding that the conditions imposed by the Sessions Court are in violation of the relevant provisions of the JJ. Act, vacated those conditions. That is to say, independent of the provisions of the JJ. Act an anticipatory bail application filed by a Juvenile in conflict with law cannot be considered by the superior courts. The corollary is that when the interest of the juvenile is sufficiently protected otherwise under the JJ.Act, the invocation of jurisdiction u/S.438 of the Code becomes redundant.

6. Of course, as held by the Hon’ble High Court in the decision, Sessions Court and High Court can exercise all the powers of the Juvenile Justice Board. But, when the Sessions Court or High Court is exercising the jurisdiction of the Juvenile Justice Board, the person concerned is deprived of a valuable right of appeal or revision as provided u/s 52 and 53 of the J J. Act.

7. Apart from all that, when an equally efficacious or a better remedy is available under the JJ. Act, why should be superior courts exercise its extra ordinary and discretionary jurisdiction u/s 438 of the Code. And what is the consequence of dismissing an application filed by a Juvenile for pre-arrest bail as not entertainable? It is no more or no less than relegating him to the Authorities constituted under the JJ.Act for a better relief.

8. In the light of the above discussion I am of the considered view that the dictum in the reported decision that an anticipatory bail application filed by a Juvenile in conflict with law is maintainable, requires a re-look.