Globalisation and the Judicial Sovereignty of India

 (By P.K. Suresh Kumar, Senior Advocate, High Court of Kerala)

There is a growing view that the power of the nation state is being eroded by globalisation.   But, I never knew that it would go to the extent of an award being passed by an Arbitral Tribunal in Singapore criticizing the Supreme Court of India for its delay in handling cases and directing the Government of India to compensate an investor from Australia for such delay. The award would send shock waves to any right thinking person and would compel him to wonder at the way in which the babus sitting in Delhi signing international treaties and also the manner in which our Government conducts international arbitrations. 

The case aforementioned arose in the following circumstances: In September, 1989 an Australian Company called White Industries entered into a contract with Coal India Ltd., for the ‘supply of equipment to and development of a coal mine at Piparwar’ in the State of Uttar Pradesh. Over a period, certain disputes arose between the parties and as provided by their contract, the disputes were referred to arbitration. In May, 2002, an Arbitral Tribunal in London, by its majority opinion passed an award in favour of White Industries for a sum of $ 4.08 Million. Coal India challenged the award in Calcutta High Court and White Industries made an application to the Delhi High Court for the enforcement of the award. The proceedings in both the courts went on for some time. In the meanwhile the Supreme Court rejected White’s application for transferring the Calcutta case to Delhi. White Industries had also filed an application in the Calcutta High Court to reject the application filed by Coal India as not maintainable.   That application was later rejected and finally the matter was taken to the Supreme Court. The Supreme Court, after hearing the matter at length, found that an important question as to whether a proceeding against an international award passed outside India could be entertained here arose in the matter. The case was, thereupon, referred to a larger bench as the Court doubted the correctness of its earlier decision in ‘Satyam Venture’, wherein it was held that the award passed outside India was amenable to the jurisdiction of Indian courts. The question is still under consideration of a larger bench.  

While so, White Industries invoked the provisions contained in a bilateral treaty between the Governments of India and Australia signed in the year 1999 and launched a claim for compensation from the Government of India. It was alleged that the claimant could not enforce the award it obtained against Coal India because of the delays on the part of the Indian Judiciary and, therefore, the Government of India is liable to compensate the Company. In an arbitral proceeding held at Singapore, the arbitral tribunal passed an award accepting the claim of White Industries and directed the Government of India to pay around Fifty Crores of Rupees to it.  

It is not the monetary part of the award that is important but the basis of the award. It is the incompetence of the Indian Judiciary that is taken as the basis for awarding compensation. The following words of the Arbitral Tribunal would send shudders down the spine of any Indian who believes that his nation is still a sovereign State: 

“The most recent delay in this case stems from the apparent inability of the Supreme Court to impanel a three judge bench in a timely manner and from the stay ordered of the enforcement proceedings by the Delhi High Court.”

“The Tribunal has no difficulty in concluding the Indian judicial system’s inability to deal with White’s jurisdictional claim in over nine years, and the Supreme Court’s inability to hear White’s jurisdictional appeal for over five years amounts to undue delay and constitutes a breach of India’s voluntarily assumed obligation of providing White with ‘effective means’ of asserting claims and enforcing rights.”

“Having reached the conclusion that an Indian court, acting reasonably and complying with India’s international obligations, would conclude that Coal India had not established that the Award ought to be set aside or not enforced, the Tribunal determines that White is entitled to full compensation for the loss it has suffered as a consequence of India’s breach of the BIT. This compensation includes:  a) the amount of A$ 4,085,180 payable under the award; b) interest on this amount at the rate of 8% from 24 March 1998 until the date of payment; c) the amount of US $ 84,000 payable under the Award (for the fees and expenses of the Arbitrators); and d) the amount of A$ 5,00,000 payable under the Award (for White’s costs in the ICC arbitration).”

Thus, an Arbitral Tribunal criticised the Indian Supreme Court and the Indian Judiciary in general and made the Government of India liable to compensate a company for the lapses on the part of the judiciary. This is nothing but an attack on the judicial sovereignty of the nation. The judicial function is one of the major sovereign functions of a State. No person or authority can be allowed to sit in appeal against the functions of the Judiciary except in accordance with the provisions of the Constitution of India. No outside agency can be allowed to evaluate the orders of the Indian Courts and to pronounce its opinion over the same. No international treaty could contain any provision or clause which enables any such agency to do so. 

The Indian Judiciary functions independently of the Executive Government of the State. Such independence is a basic feature of the Constitution of India. The concept of independence of judiciary, according to the Supreme Court of India, is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of Indian democratic polity. The Executive Government cannot, therefore, enter into any treaty, whether domestic or international, which would affect such independence of the judiciary. It is a shame on whoever has paved the way for a bilateral treaty being instrumental in awarding compensation on account of a sovereign function. The babus who sign the treaties shall remind themselves to go through the various clauses in treaties and agreements before putting their signatures and before fastening the whole nation with various liabilities. 

Now, another aspect to be examined is that whether the 1999 agreement between Australia and India would in anyway entitle an investor to make a claim of the present nature. On reading the whole agreement I feel that the counsel who appeared for India could have very well argued that what was protected by the agreement was only the investor’s right to be treated fairly and justly as per the laws and the system prevailing in the country and therefore the delay on the part of the judiciary would not give rise to a cause of action in favour of the claimant. But, no such argument was seen addressed. Anyway, it is not the merit of the award that is the subject matter of this article. 

The question is as to whether the Executive Government could have entered into an agreement which would empower an investor from a foreign nation to sue for compensation on account of the delay in our judicial system?  If the agreement has such an effect, does it not amount to surrender of our sovereignty?  According to me the entire matter deserves a nationwide debate and those who are responsible for irresponsibly signing such agreements have to be made answerable.  

If those who entered into the treaty had applied their mind they could have very well avoided the arbitration clause which enabled an ‘Investor’ also to raise a dispute. The dispute resolution clause in the agreement between two Governments should have conferred rights in that regard only on the contracting Governments and not anyone else. Similarly, the agreement should have specifically clarified that the protection given to an investor is in accordance with the system prevailing in the country. It is due to total lack of application of mind on the part of the bureaucracy to such aspects, situations like the ones mentioned here arise. 

Paradigm of A Pursuit

(By P. Rajan, Advocate, Thalassery)

Sri. T.P. Kelu Nambiar, Senior Advocate is no more. The loss is irredeemable. Long live the legacy of the lawyer, writer par excellence.

Sri. Nambiar’s professional skill and committment, needs no elaborate preface. His clientele included persons from various walks of life, bodies and corporations of the Government, Banks, Universities and many more. When late E.K. Nayanar was indicted as an accused relating to his public speech allegedly with casteist connotations, despite his political inclinations, Mr. Nayanar sought the assistance of Mr. Kelu Nambiar to get the complaint quashed. A multi-faceted personality, Mr. Nambiar he was always anxious about the problems plagued by the legal profession. His articulations were always reflective of his anguish relating to this.  He always maintained that legal profession is no forum for fortune-seekers and petulent performance he hated and ineffable feeling he derived in fearless and honest performance.

A prolific writer he was; premier law journal of Kerala, Kerala Law Times always published his articles with due prominence and his contribution to the said journal as a member of the Editorial Board also was pivotal. Mr. Nambiar’s articles compiled and published as ‘Nambiar Miscellany’ contains his monumental composition, prowess, thoughts in delectable style. ‘Roses in December’, ‘We the people’, ‘We the Nation’ and ‘Before Memmory Fades’ are books written by Stalwarts in the legal profession, widely circulated. These books contain autobiographical narrations but 'Nambiar Miscellany' (Three volumes) relate to matters concerning the Bench and Bar, mainly. When he decided to stop writing, the statement saddened his readers and admirers alike(2011 (2) KLT Journal Page 1). But that ‘no’ was of a gentleman’s not a diplomat’s.

Though a lawyer with grit and glory he never minced words when the Judges overstepped. When a Judge of the Kerala High Court Judged the Advocate also, made unsavoury remark in the judgment, without any hesitation came Mr. Nambiar’s reaction and said, Judge the case; not the lawyer. Such examples are plethora and he always held his head high not because of the seniority only but because of his total commitment to the profession. He seldom chose any lullaby but pedantry was his hallmark.

As Justice V.R. Krishna Iyer described once -- Advocate Nambiar of Kerala Bar means T.P.K. Nambiar - the void is great due to the passing away of this versatile genius.

There are two ways of spreading light, to be the candle or the mirror that reflects it.                                                                  -- Edith Wanton, U.S. writer.

Good Bye Mr. Kelu Nambiar !

(By M. Karunakaran Nambiar, Advocate, Kannur)

More than half a century ago, I first met Mr. Kelu Nambiar from the corridors of the Madras High Court below the portrait of Mr. Eardley Norton. Scarcely did I then think that he would blaze across the forensic horizon like a meteor and dazzle the legal fraternity. Years later, I crossed swords with him from the Trial Court presided by Mr.Hariharan Nair who later became a High Court Judge. Nambiar’s punch is so deadly that it leaves you reeling and your case is in smithereens. He was like Erskine, the all time great of the English Bar. His advocacy was non pareil, language his forte ! His Literary Masterpieces are enshrined in the Law Journals and books for posterity to emulate. Probably, never again can we witness a counsel of his caliber-Proud, noble and courageous! He was the Lawyer of our Century.

Sanyasi -- How to Become A Sanyasi and Right of Inheritance

to the Estate of A Sanyasi -- Legal  Angle 

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

I. In the present day atmosphere, where we find sanyasis in many places, it is better that we know, whether proclaiming to be sanyasis, they are real sanyasis or not. Mere assumption of the name of a ‘Sanyasi’ or calling oneself a sanyasi does not alter the status. Since Sanyasam amounts to civil death, there must be initiation by a Guru into the order of Sanyasis by means of appropriate Mantras (AIR 1957 A.P. 824 Satyanarayana Avdhani v. Hindu Religious Endowments Board, Madras). For the procedure required to be followed by a person for attaining the state of a complete Sanyasi and what amounts to civil death, we can get guidance from the following judicial decisions:-

(a) One of the earlier decision is, (1910) 14 CWN 191 = 2 Indian Cases 3385 Ramdhanpuri v. Dalmer Pur. This decision says that Prajapathiyesthi, Viraja Homam and Atma Sradha is necessary to become a sanyasi.

(b) In Balideo Prasad v. Aryapriti Nidhisabha (AIR 1930 All. 643 (B) = 1930 (52) ILR 789 = 124 IC 761 also says that the Prajapathiyesthi and Viraja Homam is absolutely necessary.

(c) Same is the principle laid down in Kondal Rao v. Swamulavaru 1917 (33) ML J 63 = 40 I.C. 535 = AIR 1918 Mad. 402.

(d) In AIR 1980 SC 707 (Paras 14-15,17) (Krishna Singh v. Miathura Ahir) Hon’ble Justice A.P. Sen has also laid down that to become a Sanyasi he should have mandatorily performed Atma Sradha and uttered Pravesh Mantra besides Prajapathiyesthi and Viraja Homam. The said decision also points out that initiation should be by a Guru.

(e) According to Orthodox Smrti written, a Sudra cannot legitimately enter into a religious order (see Harish Chandra v. Atir Meehmud) 1913 (40) ILR 545 = 18 IC 474) Since it as thought then that only Brahmins, Kshetriyas and Vaisyas who are alone Dwijas, who are twice born could alone become a Sanyasi. But this rule had become obsolete and the existing practice all over India is quite contrary to such orthodox view. [Krishna Singh v. Mithura Ahir AIR 1972 All. 273] The notion that Sudras cannot become sanyasis is also opposed to Part III of the Constitution as observed in paragraph 17 of AIR 1980 SC 707.

(f) Again, in Ramachandra v. Batia Singh AIR 1986 All. 193, in para 14 it has been held that in order to become a Sanyasi, it is not merely necessary that a person may make a declaration to the effect that he has renounced the world or may put on saffron clothes, but he has to undergo all the ceremonies prescribed in Hindu Law.

(g) In Babu Lal v. Moti Lal AIR 1984 All.378 in para 15, it has been held that in the absence of necessary ceremonies having been performed by a person entering in the life of a sanyasi, renunciation will not be perfect, nor his civil death can be assumed so, as to divest him from all right in the property belonging to him.

(h) The mere holding by a man of certain religious opinions or professions does not amount to civil death. [Raghbirlala v. Mahammadsaid (AIR 1943 P.C. 7].

(i) Renouncing the world by entering a religious order or in other words, entering the fourth stage of life (called in Hindu Philosophy Sanyasa a vanaprastham) is treated as civil death. See Paramand v. Nihalchand AIR 1938 PC 195 Teeluck v. Shama 1864(1) W.R. 209. (also AIR 1954 SC 604 Para 20.

(j) Persons  who have renounced wordly affairs and entered religious order come under three heads

1. Vanaprastha or hermit

2. Sanyasi or

3. Brahmachari - Perpetual Religious student.

In order to bring a person under any of the three heads it is necessary to show absolute abandonment of all property and a complete and final withdrawal from earthly affairs. (Mayne Hindu Law and Usage 7th Edition page 72). Renunciation to amount to civil death AIR 1934 Bom. 384.

2. Regarding Inheritance.-- Where a person enters into a religious order renouncing all wordly affairs, his action is tantamount to civil death and it excludes him altogether from inheritance and a share in partition. Avdesh Kumar v. Shiv Sankar AIR 1985 All.104, Teeluck v. Shama 1864 (1) W.R. 209. A property which belongs to a person at the time of renunciation passes immediately to his heirs. But the property acquired by him subsequent to the renunciation passes to his spiritual heirs.

The man who become an ascetic severs his connection with the members of natural family and being adopted by this preceptor Guru, he becomes, so to say, a spiritual son of his Guru. The other disciples of this Guru are his brothers. Sital Das v. Sani Ram (AIR 1954 SC 606 at 613).

Understanding Kelu Nambiar

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

“However much a jnani might talk, he is still the silent one.  However much he might work, he is still the quiet one.  His voice is the incorporeal voice.  His walk is not on the earth, it is like measuring the sky with the sky”.

 – Bhagavan Sri.Ramana Maharshi.

Reputation is different from publicity. Kelu Nambiar never wanted controversies to announce himself.  On the other hand, he stood on the solid foundation of his own reputation which was hard earned.  He never went after publicity, for he did not want it.

It is necessary to remember Nambiar. It is proper to praise him. But it is, nevertheless, significant to understand him and this small write up is intended to share my humble views about the Senior Lawyer. Mind, seniority conferred, and not begotten on application.  Seniority deserved, and not distributed.

I have read almost everything in print which Nambiar has written.  He did not write an autobiography.  Therefore, to understand him, one has to read his unwritten autobiography.  In it, one cannot find an overplay of politics which one would find in the memoirs of Santhi Bhushan(‘Courting Destiny - A Memoir’, Shanti Bhushan, Penguin/Viking, 2008.). Nor one would find the geographical and administrative interventions as in F.S.Nariman’s unfaded memoir (Fali S.Nariman – Before Memory Fades, An Autobiography, Hay House India, 2010.).

Nambiar exceeded the limits of the ‘Bare Acts’.  Constitution is not a collection of Articles.  It is a theme, scheme  and philosophy.  Each Article has a social, political and moral content.  Professor David Guenther said that “it is impossible to become a lawyer and not acquire a passion for justice”(Quoted by Nancy Levit and Douglas O Linder, ‘The Happy Lawyer ’- Oxford, 2010, P.69.).  Nambiar acquired it abundantly, and this is the lesson one should learn from the oft cited “Chief Secretary episode”.  It was not a mere act of boldness.  It was, on the other hand, a declaration of  his ‘passion for justice’.

Brevity, clarity, knowledge and courage are the four pillars of argumentative practice.  Nambiar was concise, lucid, cogent and magnetic in his submissions.  He was responsible and authoritative.  He hated exaggeration which is antithetical to good advocacy.  He never made any prefatory comment on the virtues of the case.  He simply followed Oliver Cromwell who said …..” I beseech you, in the bowels of Christ, think it possible you may be mistaken”(Quoted by Fali S.Nariman – Before Memory Fades - An Autobiography, Hay House India, 2010, Page 98.) he was assertive, but never angry.  His submissions were seldom lengthy.  He was never a “much speaking lawyer” in court though he was so in confidential talks.  He was ready to lose with dignity.  He no doubt, remains as the  doyen of the Kerala Bar.

The profession is in crisis. And the institution too.  Merit has become the first causality in all activities containing some element of selection and choice.  H.M. Seervai was the Advocate General of Maharashtra for 17 years from 1957 to 1974.  Even when the political parties that ran the Government changed, the Advocate General did not change.  Advocate General’s office is a constitutional office vide Article 165. The Government has to go by his advice in legal issues and not vice versa.  Going by the standards set by our decision makers, no wonder Nambiar was not chosen as Advocate General by either of the political fronts.  Seervai’s virtue lied in  being the Advocate General for a long time and Nambiar’s merit lies in  not being chosen for the post!

“Why Lawyers Are Unhappy”(Martin E.P Seligman et al Cardozo L Rev. 33, 34 (2001) referred in ‘The Happy Lawyer’, Page 75. See Foot Note No.3) is a must read for advocates and Judges.   Nambiar always remained as a Happy lawyer.  He smiled throughout his life and even  at the time when he moved towards the  ‘extra territorial jurisdiction’.

When Justice Sujatha Manohar completed her graduation she expressed her desire to become a lawyer.  Her Philosophy Professor’s reaction was – “Oh, so you want to be like Seervai"(‘Evoking H.M.Seervai ’, Universal, 2005.) .. Any ambitious law student choosing court practice would be tempted to set his standards high, and even an unsuccessful attempt “to be like Kelu Nambiar” would reward him  or her abundantly.

 I was not fortunate enough to have a formal apprenticeship or juniorship under the veteran.  However, with blessings of my Senior, late Sri.M.P.Govindan Nambiar, I could always get advice, admonition and appreciation from Kelu Nambiar.   He liked my drafts and submissions.  He disliked my unregulated Television appearances and asked me to control it.  He warned against the risk of quantity of work attenuating quality.  He appreciated my articles which were precise and at the same time,  expressed displeasure over my inclination for long quotations, which, in his view would “seriously hamper the readability of the write up”. His telephone calls always contained valuable guruvachanas.

A lawyer may face moral dilemmas even in High Court practice.  He should avoid conflict of interest not merely at clients’ level but at the subject matter level as well.  He cannot, in an ideal scheme of affairs, argue for one proposition in one case and the opposite proposition in the next case.  He will have to stand by the contents of first brief accepted.  David Pannick rightly said that answer to moral dilemmas “must be founded on a principled  conception of the function of the advocate” (‘Advocates’, - David Pannick, Oxford University Press, 1992, Page 161.).

Nambiar’s methodology rested on homework, in-depth study and the courage to speak out.  He always followed the principles of the profession.  Again, in the words of David Pannick, “Advocacy adopts and asserts the primary value of freedom of expression.  It is a practical manifestation of the principle of freedom of speech which developed western societies hold so dear (‘Advocates’, - David Pannick, Oxford University Press, 1992, Page 246.) .

I am unable to convey Nambiar’s message to the youngsters in the profession in my own fragile language, and, therefore, after seeking his indulgence, I should quote him at length:

“Let me attempt a crisp advice to the young wing of the profession.  Your agenda should not begin and end with enrolment.  You have miles to go.  You enroll young; you die old, in the long meantime you have to carry on with your profession.  Do not be a tinsel lawyer.  Nor be a mere pipe-dreamer in the profession.  Juniors should act as monitors of seniors, not as mere back-room boys of the profession’s super-stars, who occasionally ignore and periodically disown their juniors.  They should not allow themselves to be shunted to the side-lines or recesses of the court.  Do not lead a purposeless existence.  Prove that you are not redundant.  Spin a golden thread between you and your senior.  Show a credible interest in the profession; and sustain that interest day by day and year upon year.  There is no substitute for experience.  Scan your brief, create and perform” (Quo VadisLegal Profession – ‘KLT Address’, delivered on 21.12.1998, on the occasion of the Golden Jubilee Celebration of the Kerala Law Times at the Bar Council Auditorium, Ernakulam.  This was published in 1999 (1) KLT Journal, Page 4.  Republished in ‘Nambiar Second Miscellany’- Bar Council of Kerala Trust, 2004.).