Understanding Kelu Nambiar
By Kaleeswaram Raj, Advocate
01/10/2012
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.).
Obituary - Kelu Nambiar
By President, Kerala High Court Advocate Clerk Association
01/10/2012
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Judges and Lawyers Wear Black Robes -- Why?
By K.J. Thomas, Advocate, Irinjalakuda
17/09/2012
Judges and Lawyers Wear Black Robes -- Why?
(By K.J. Thomas, Advocate, Irinjalakuda)
Judges and lawyers wear black robes. What is the symbolism behind it? Whether it is fashion motivated? In most of the countries of the world, judges and lawyers wear black, or at the very least, garments with some black trim or lining. This tradition is said to have begun in 17th Century England. In 1694, all of the nation’s judges attended the funeral of Queen Mary dressed in black robes as a sign of mourning. The official period of mourning lasted many years, and overlapped with much of Britain’s-colonial adventures in other countries. It was believed that robes and wigs gave a degree of anonymity to judges and lawyers. The black robe tradition spread around the world and thus still persists today. But, it is said that India gave up the wigs quiet early after Independence and also abandoned the more extravagant robes.
In India, the Advocate’s Act 1961 makes it mandatory for advocates appearing in the Supreme Court, High Court, Subordinate Courts and Tribunals to wear a dress that is sober and dignified. The dress code is not merely a status symbol, but brings out discipline among lawyers and gives them the confidence to fight for justice. The dress code also differentiates lawyers from other professionals.
Christians -- Priest -- Nun -- Law of Succession
By N. Subramaniam, Advocate, Ernakulam
17/09/2012
Christians -- Priest -- Nun -- Law of Succession
(Compiled from various decisions)
(By N. Subramaniam, Advocate, High Court of Kerala)
1. In the decision reported in 1977 KLT 303 (D.B.), Mother Superior, Adoration Convent, Kanjiramattom v. D.E.O., Kottayam and Others, Hon’ble Justice G. Viswanatha Iyer had gone very deep in the matter and has described the formalities that are to be gone through by a person who takes to religious profession among the Catholics. Para 4 of the said judgment which deals with this topic is extracted below.
“As a preliminary to the question arising for consideration it is necessary to describe the formalities that are gone through by a person who takes to the religious profession among the Catholics. Catholic Encyclopedia, Vol.12, page 287, describes what is meant by a religious life. It is described as a particular expression of the love of God through a following of Christ. It is approved by the Church as a public state of life by the profession of poverty, chastity and obedience through public vows and by some form of separation from the world, practised for the sake and service of the world. Religious profession is an act by which a person embraces the religious state by taking the three public vows of poverty, chastity and obedience. This is really an agreement made with the religious order which, when accepted by the competent Superior, creates a whole series of reciprocal rights and obligations between the religious order and the religious. Before a person is admitted into this order he or she is put on probation. “Postulantship" is intended to give the superiors an opportunity to observe the candidate and the candidate an opportunity of becoming acquainted with the general obligations of the religious life. After the period of this probation the candidate is admitted to the novitiate. Thereafter she is put to a Canonical examination to make certain that she is acting with full knowledge of the case and with full liberty. If she gets through the examination she is required to take a temporary vow which is generally for a period of three years. During this period the superior will judge the fitness of the person to take the perpetual vow. After the expiry of the period of three years the religious shall either make his or her perpetual profession or he or she can return to the world. Before the perpetual vow is taken the professed must renounce in favour of the person whom he or she likes, all the property which he or she actually possesses on condition however of his solemn profession subsequently taking place. After the solemn profession is taken all property which may come to the religious in any manner whatsoever accrues to the Order according to the constitution and if the Order cannot acquire or own any property it becomes the property of the Holy See. The effect of taking a perpetual vow and becoming a nun is described thus in Pollock and Maitland’s History of English Law, Vol. I, page 434:-
“A monk or nun cannot acquire or have any proprietary rights. When a man becomes ‘professed in religion’, his heir at once inherits from him any land that he has, and, if he has made a will, it takes effect at once as though he were naturally dead. If after this a kinsman of his dies leaving land which according to the ordinary rules of inheritance would descend to him, he is overlooked as though he were no longer in the land of the living; the inheritance misses him and passes to some more distant relative. The rule is not that what descends to him belongs to the house of which he is an inmate; nothing descends to him for he is already dead. In the eye of ecclesiastical law the monk who became a proprietarius, the monk, that is, who arrogated to himself any proprietary rights or the separate enjoyment of any wealth, committed about as bad an offence as he could commit.”
This fiction however has its own limits. If a monk or nun does wrong or suffers wrong he or she is dealt with as though he were only an ordained clerk and tried by the ordinary courts. In respect of civil wrongs the rule is that the monk or nun could neither sue nor be sued without his or her sovereign. A monk or nun could make no contract. But he or she is capable of acting as the agent of his or her sovereign and even in litigation he or she could appear as the superior’s attorney. In the History of French Private Law included in the Continental Legal History Series, Vol. III, para. 585, it is stated thus :-
“Entering Religious Orders resulted in the eyes of the Church in death to the world. From this it should have been concluded that from the time of his entrance into a monastery the monk could not acquire anything, and that the possessions which he had at that time should pass to his heirs.”
Thereafter the personality of the monk was absorbed by that of the monastery. He acted as a means of receiving for the benefit of the monastery. Once he had entered a monastery, the monk, stripping off his own personality, could only receive for the benefit of his community. But the monastery did not take those possessions which he had at the time of his entering it; he was regarded as being dead at that time and from this fiction there arose two consequences; first his inheritance vested for the benefit of his relatives; second, he was thence forward incapable of inheriting upon intestacy or by virtue of a will, either in his own interest or in the interest of the monastery. In this sense the civil death with which he was affected was the equivalent of real death. Similarly, in History of Italian Law included in the Continental Legal History Series, Vol. VIII, at page 512, para 299, it is stated thus :-
“A sort of civil death overtook one who took solemn religious vows, though limited in its effect to property and inheritance.”
Again, in Catholic Encylopedia, page 329 the legal effects on taking to a religious profession as set forth in the Canon Law are stated with reference to those who take temporary vows and who take the perpetual vow. It is stated at page 330 that any ‘religious’ in simple minor vows, must before joining the profession make a will disposing of all his or her property and cannot retain any property which later comes to them. It automatically becomes the property of the Order to which he or she belongs. This principle was followed in Kondol Row v. Swamulavaru (AIR 1918 Mad. 402) to describe the status of a Sanyasi under Hindu Law also. In the case of a Sanyasi entrance to a religious Order generally operates as a civil death. The man who becomes an ascetic severs his connection with the members of his natural family and being adopted by his preceptor becomes, so to say, a spiritual son of the latter. In Sital Das v. Sant Ram (AIR 1954 SC 606) Justice Mukherjea stated the law thus at page 613, para 20 :-
"It is well known that entrance into a religious order generally operates as a civil death. The man who becomes an ascetic severs his connection with the members of his natural family and being adopted by his preceptor becomes, so to say, a spiritual son of the latter. The other disciples of his Guru are regarded as his brothers, while the co-disciples of his Guru are looked upon as uncles and in this way a spiritual family is established on the analogy of a natural family."
This being the general consequence of becoming a monk or nun and joining the Holy Order it has to be taken that with the taking of the perpetual vow the person concerned ceases to have any connection with the members of the natural family. So far as the natural family is concerned the woman is taken as dead.
2. When a woman joins Holy Order of congregation after renouncing her natural family and as soon as she takes the perpetual vow she ceases to be a member of her natural family and became member of Holy Order. She embraces a life of poverty, chastity and obedience. The convent became her family and the Mother Superior became the head of the family as well as her legal representative. All her income by way of her salary and other benefits will devolve on the convent of which Mother Superior is the Administrator. In case of death of the nun, the Mother Superior will be her legal heir and the natural heirs mentioned in S.41 to S.48 of Succession Act will not be her legal heirs. Entering religious orders resulted in the eyes of Church in death to the world. Hon’ble Justice Thottathil B. Radhakrishnan appeared in the said case. (See 1994 (1) KLT 868 - 1994(1) KLJ 825 (D.B.) para 7 and 9, Oriental Insurance Co. v. Mother Superior, S.H. Convent)
3. On taking a perpetual vow a nun will cease to have share or any connection with the members of her natural family. In other words, in the absence of evidence to show that a nun took the perpetual vow before the death of her parents, she too would be entitled to a share in the parental property. (See Jose v. Antony - 2001 (2) KLT SN 31 (C.No.34) = 2001(1) KLJ 555 (para. 9).
4. In the decision reported in 2004 (2) KLT 783 = 2004 (2) KLJ 323 (D.B.) Varghese v. P.K.Krishnan Nair (in paras 3 and 4) it has been held that on the death of a priest who became a member of the Monastry in a motor accident, compensation cannot be decided on the basis of Indian Succession Act but can be awarded only to the monastry.
5. There are two decisions which take a contrary view. In AIR 1985 Karnt. 231 (D.B.) G.K. Kempe Gowda v. LUCINDA para 9 says that there is no statutory prohibition for a nun to claim by intimate share out the estate of her father and Indian Succession Act does not contain any such restraint. Nor there is any prohibition prescribed under Ecclesiastical Law. The other decision is 1990 (1) KLT 334 Madras High Court (S.J.) [In the mater of Indian Succession Act v. Rt. Rev. Casmir Gnanadesikan, Archbishop of Madras] which says that inheritance to the estate of a Roman Catholic Christian Priest is law applicable under Part V of Indian Succession Act and inheritance allowed only to natural heirs and not to superior of the priest. This is following a decision rendered in 1974 (1) MLJ 53. [Solomon v. Muthiah]. Reference to 1977 KLT 303, AIR 1954 SC 606 and AIR 1918 Mad. 402 is also made and 1977 KLT 303 has been distinguished on the ground that the nomination of Mother Superior to be beneficiary to receive the retirement benefits (who was a teacher) was valid or not.
6. The decision of Karnataka High Court and Madras High Court may have only persuasive effect on the High Court and the law laid down by Kerala High Court is to be followed.
Tailpiece --
Baptism is not essential to become a Christian, as per Common law. AIR 1953 Orissa 10 (S.B.) (K.J.B. David v. Nilamanidevi). Even if one Christian is excommunicated, he will continue to be a Christian. AIR 1924 Mad 18 (F.B). But under Cannon Law Baptism is essential to be a Christian.
In the Interest of Surety's Liberty
By B. Vinod, Advocate, High Court of Kerala
03/09/2012
In the Interest of Surety's Liberty
(By B. Vinod, Advocate, High Court of Kerala)
“ The accused and the sureties shall not leave State of Kerala without the prior permission of the learned Magistrate”, is just another regular condition imposed/by the Honourable Mr.Justice N. K. Balakrishnan in every anticipatory bail application that is allowed.
The above condition imposed on a surety is worse than a condition to surrender his passport.
Sureties are bound by bond to produce the accused. If the accused absconds outside Kerala, the surety is by bond required, not to travel outside Kerala. Therefore the duty cast on the surety to produce the accused has become impossible to perform. The surety cannot be fastened with the liability that he may otherwise be directed to satisfy under Section 446 of Code of Criminal Procedure.
That apart. Where the bail bond is for securing appearance of accused in a criminal case can surety’s liberty be curtailed in the manner aforementioned? Of course a surety acts voluntarily. Can criminal courts send a person to jail simply because he volunteers?
Proviso to clause 2 of Section 446 of Code of Criminal Procedure permits that if the penalty ordered, after forfeiture of the bond and after giving an opportunity to show cause why such a penalty cannot be imposed, cannot be recovered in the manner provided by the Code for recovery of fine then the surety can be imprisoned in civil jail. Penalties that a surety is a required to pay on forfeiture of bail bond is not a fine imposed under the Code. The penalty can be recovered in the manner provided under Section 421 of the Code of Criminal Procedure by attachment of sale of movable or immovable property or by authorising the District Collector to realise amount as arrears of Land Revenue. Only in cases were recovery methods fail, imprisonment in civil jail can be ordered. The detention is no doubt only executory in nature as opposed to penal detention i.e., when the penalty is recovered the person has to be released.
By Section 441(4) court can determine whether the sureties are fit or sufficient but it in no manner authorises the criminal court to restrict the basic human/fundamental right [Article 19(l)(d)] of a citizen to travel across the country freely, at any rate, without bothering the local police and magistracy. Fundamental right can be reasonably restricted only by a competent legislation and not by conditions in a bond.
Bond of accused and sureties is mentioned in Section 441 of the Code of Criminal Procedure. Clause (1) stipulates that “ before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, shall continue so to attend until otherwise directed by the police officer or the court, as the case may be. Section 441 A would further mandate the surety to make a declaration as to the number of persons for whom he stood as surety for their release.
Fitness of a person who stand as surety cannot be assessed or determined by preventing his movement outside Kerala.
Section 445 Code of Criminal Procedure recognises deposit of such some of money in lieu of execution of bond at the description of the court or officer, except when the bond is for keeping good behaviour. These provisions of law necessarily implies that bond executed by surety is to pay such some of money as the court may direct subject to the maximum amount mentioned in the bond on the failure of an accused to appear to stand trial and receive sentence.
Conditions in an order releasing the accused on bail are directed against the accused. Section 437 (3) also permits the court to impose such other conditions as it considers necessary, in the interest of justice. No conditions curtailing the liberty of a surety can be considered to advance the interest of justice. The surety is not in conflict with law. He supports the administration of justice by promising to produce the accused to stand trial or receive sentence. The criminal justice administration shall crumble if all the accused demanded trial when summoned.