Carbon Copy

(Advocate S.A. Karim, Vanchiyoor, Thiruvananthapuram) 

Party to a judicial proceeding needs carbon copy of an order either to take up the matter to a higher court or to execute the same in appropriate forum or for any other purpose. Its facility is that it is immediately received after the prouncement of the order. But in the Kerala Criminal Rules of Practice, 1982, there is no rule for carbon copy or photostat copy. Rule 224 speaks about urgent application. It reads-

“Application for urgent copies shall be by a separate urgent application setting forth the grounds of urgency”.

This urgent application is on queue as there are similar ones. Comparatively lesser queue than the ordinary applications. If all the ordinary applications turn urgent, there will be no difference between urgent and ordinary applications. As carbon copy is immediately received after the prouncement of the order, there will not be any queue or delay. It will serve the purpose. So urgent application cannot be a substitute to carbon copy or photostat copy. When one asks carbon copy from a criminal court office considerating the urgency of the matter, they deny and say, there is no rule for carbon copy.

Rule 239(3) of the Civil Rules of Practice, deals with carbon copy or photostat copy. Similarly Rule 128 of the Rules of High Court of Kerala, 1971, provides carbon copy or photostat copy. The carbon copy rule in both the Rules is identical. This being the position, there is no justification for not having carbon copy rule in the Criminal Rules of Practice.

A Tribute to Kelu Nambiar 

(By Justice V.R. Krishna Iyer)

At the High Court level the real advocate who illumines the Bar is a radiant jurist who is far more than one who can sight decisions of court but whose luminous opinions make jurisprudence the true science of law. The rule of law is social engineering and it is the skill of engineering that makes the rule of life the foundation of a stable society and social comity. In short, the Bar becomes great only if marvels of jurisprudents contribute writings to legal journals and through their forensic arguments educate the Bench. The best judgments come from the Bench only if there is an excellent Bar. Holmes in this context is appropriate:

‘Shall I ask what a court would be, unaided? The law is made by the Bar, even more than by the Bench.’

I have been in the Kerala High Court Bar for nearly a decade and thanks to my fine performance, Chief Justice M.S. Menon pressured me into the High Court. I first declared but he insisted, overcame my resistance and made me a judge. Thus I have seen the Bar of Kerala High Court both as a life member and also as a judge and in my observation I have noticed one great jurist whom I have admired one as learned and very powerful in his advocacy and remarkable in his excellent diction is Kelu Nambiar. He has sometimes been the critic of my judgments and other times very appreciating his presence at the Bar. His presence at the Bar, his writings in the KLT are invaluable as sources of erudition. But quite recently I gather he has threatened not to write any more to law journals whatever his motive may be. No more Kelu Nambiar in the KLT will make that journal poorer but lawyers generally weaker in the fundamentals of law. This will be a calamity because we are passing through times when the Bench and the Bar suffer a syndrome of decadence.

I know Mr. Kelu Nambiar for long as a great friend, as a fine jurisprudent for whom not lucrative practice but profound knowledge of law matters more. I therefore appeal to dear Kelu Nambiar to desist from his hasty decision to give up his valuable contributions. A man’s gift when it is great is a trust for the benefit of the Bar and jurisprudence generally. Therefore in fulfillment of its great gift as a jurist he is bound to the public and to the large circle of friends like me to write creatively and critically with one object in view—to make law an instrument of constitutional development, of a better world order so that we may find is India a cosmos without chaos a functional glory which will make the judicature a wonder of justice. Please remember Cardozo:

Membership in the Bar is a privilege burdened with conditions.

Oscillating Pillars and the Meltdown of the Constitution

(By M.K.S. Menon, Advocate, Supreme Court of India)

We are living in a country, where we consider that, what ever our ‘yuga purushas’ like ‘Dharmaputra’ or ‘Sri Rama’ did as icons of truth/virtues were acts of bravery. We ignore the mistakes committed by them and teach our children virtues by showing their stories as an example. Still it is yet to be answered as to one can justify those given episodes. In one such story Dronacharya was killed through treachery at a time when he put down his weapons once the “man of words’ and ‘symbol of dharma’, i.e., none other than ‘Dharmaputhra’, heard saying that Dronacharya’s son Ashwathama was killed. It was too late for him to realize that ‘Dharmaputra’, said only a partial truth and not the complete truth that the ‘Ashwathama’ was only an elephant and not his son.

Similarly Sri. Rama killed ‘Bali’, the mighty king of ‘Kishkinda’ by straining the arrow from behind. Of course Bhagavad Geetha is a complete book which can give all possible answers, but still the common man is confused. We were told not to question it but to simply believe what elders had said. As a result, various tenets are being misinterpreted and the messages given in the Bhagawad Geetha are being used to justify illegal and unlawful actions.

Look at the current scenario. Every one is concerned about the towering corruption in the Indian society. At the same time, no one is concerned about one’s own contribution in precipitating the said issue. People are paying small helpings to the village officer or a police constable so as to get an innocuous, but out of the way help in his favour. Each and every person today is corrupt in one manner or the other but at the same time complaints about the large scale corruption. Is there any difference between small corruption and big or large corruption ?  Corruption is corruption irrespective of its magnitude. However when persons sitting in higher positions take bribe, there used to be big hue and cry. Why? Is it because they are sitting in higher positions or because the amount involved are huge. Any how it is a matter for one's own introspection.

The Author decided to pen down his thoughts as it occurred to him when he saw the fate of Mr. P.J. Thomas, current CVC, who was asked to step down unceremoniously, by the Hon’ble Supreme Court which according to the author is against the established principles of law. Mr. Thomas would have never foreseen the political treachery that he had to face in the future at a time he toiled the midnight oil to become a member of the coveted post as an IAS officer. He is the victim of political treachery, where one has to shoulder the filth of the politicians and ultimately be made a scapegoat for the sins committed by modern idols of democracy.

Regarding  the  Judgment  in  the  case  of  CVC

No doubt Hon’ble Chief Justice in his crusade against corruption, probably only wanted to give a signal that no one shall be spared. It is easy to make criticism by sitting in the fence but difficulty in striking the balance is a pain in the neck of the person heading the strongest limb of the Constitution. As many jurists expressed, it is not the fallacy of the tone of the judgment but the manner in which the Court came to the conclusion that it is an order of nullity probably deserves a second thought. Word non est in ordinary sense and as per the law laid down by the Hon’ble Supreme Court till date meant, as an order passed with out jurisdiction. In the eye of law, it never came in to existence, since it is passed by an authority who had no authority to pass such an order or the action of the authority in passing the order never resulted in the birth of an order in the eye of law. An irregular order cannot be an order of non est or nullity. Non-consideration of important material never render it as nullity because the authority in the present case who passed the order never lacked jurisdiction to pass an order of appointment. Order can be an “irregular order of appointment”, but how can it be an order that is void ab-initio ? No one had a case that the appointing authority namely the President of India acted without jurisdiction or the High Power Committee who recommended the name of Mr. Thomas had no authority to recommend any name (rightly or wrongly) as CVC.

Suffice it to point out that Supreme Court considered the concept of non est decision in the case of Deepak Agro Foods v. State of Rajasthan reported in 2008 10 Scale 263 and the observation of their lordships in paragraph 14 & 15 reads as follows:

“14. Having come to the above conclusion, the next question which requires consideration is whether in the light of the observations of the Division Bench in the afore-extracted paragraph on the irregularities as also the conduct of the assessing officer, the assessment orders could be said to be null and void, as pleaded on behalf of the appellants?

15. All irregular or erroneous or even illegal orders cannot be held to be null and void as there is a fine distinction between the orders which are null and void and orders which are irregular, wrong or illegal. Where an authority making order lacks inherent jurisdiction, such order would be without jurisdiction, null, non est and void ab initio as defect of jurisdiction of an authority goes to the root of the matter and strikes at its very authority to pass any order and such a defect cannot be cured even by consent of the parties. (See: Kiran Singh & Ors. v. Chaman Paswan & Ors.-1). However, exercise of jurisdiction in a wrongful manner cannot result in a nullity - it is an illegality, capable of being cured in a duly constituted legal proceedings."

Another bench of Hon’ble Supreme Court in the case of Sarup Singh & Anr. v. UOI & Anr. Reported in JT 2010 (13) SC 69 at para 19 observed as follows:

"19. But, if a decree is found to be nullity, the same could be challenged and interfered with at any subsequent stage, say, at the execution stage or even in a collateral proceeding. This is in view of the fact that if a particular Court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such Court would be without jurisdiction and the same is non-est and void ab initio."

Another bench of two-Judges of the Supreme Court considered the distinction between null and void decree and illegal decree in Rafique Bibi v. Sayed Waliuddin, ((2004) 1 SCC 287). Quoting with approval the law laid down in Vasudev Dhanjibhai Modi’s case which reads as follows:

“What is ‘void’ has to be clearly understood. A decree can be said to be without jurisdiction, and hence a nullity, if the court passing the decree has usurped a jurisdiction which it did not have; a mere wrong exercise of jurisdiction does not result in a nullity. The lack of jurisdiction in the court passing the decree must be patent on its face in order to enable the executing court to take cognizance of such a nullity based on want of jurisdiction, else the normal rule that an executing court cannot go behind the decree must prevail.

A distinction exists between a decree passed by a court having no jurisdiction and consequently being a nullity and not executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed in-executable by the executing court: the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior court failing which, he must obey the command of the decree. A decree passed by a court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings.”                (emphasis supplied)

A three judge bench of the Hon’ble Supreme Court in the case of Balvant N. Viswamitra & Ors. v. Yadav Sadashiv Mule (Dead) Through Lrs. &  Ors. on reported in (AIR 2004 SC 4377) was pleased to observe as follows:

“15. From the above decisions, it is amply clear that all irregular or wrong decrees or orders are not necessarily null and void. An erroneous or illegal decision, which is not void, cannot be objected in execution or collateral proceedings.”

There are so many orders being passed by the various courts in India including Hon’ble Supreme Court with out considering very important materials which very often goes to the root of the matter, quite often because were not brought to their notice. In Supreme Court even if review petition is filed, it is not normally posted in the court for hearing oral submissions. The case slips to the gallows leaving behind the unheard sobs of very many innocent citizens. Of course there are limitations since the human tendency is to question anything and every thing and it can lead to unending petitions after petitions. Therefore Hon’ble Supreme Court had to find a method to put an end to unending and repeated petitions. Therefore it results in an irresistible conclusion that the court is entitled to pass right as well as wrong orders. Then, can we say that all those orders are orders of nullity. In that sense the present order passed by the Supreme court also is an order of nullity because the Court passed the order by overstepping the statutory mandate under S.6 of the Central Vigilance Commission Act, 2003 which reads as follows:

6.  Removal  of  Central  Vigilance  Commissioner  and  Vigilance  Commissioner :--

(1) Subject to the provisions of sub-section (3), the Central Vigilance Commissioner or any Vigilance Commissioner shall be removed from his office only by order of the President on the ground of proved misbehavior or incapacity after the Supreme Court, on a reference made to it by the President, has on inquiry, reported that the Central Vigilance Commissioner or any Vigilance Commissioner, as the case may be, ought on such ground be removed.

(2) The President may suspend from office, and if deem necessary prohibit also from attending the office during inquiry, the Central Vigilance Commissioner or any Vigilance Commissioner in respect of whom a reference has been made to the Supreme Court under sub-s.(1) until the President has passed orders on receipt of the report of the Supreme Court on such reference.

(3) Notwithstanding anything contained in sub-section (1), the President may by order remove from office the Central Vigilance Commissioner or any Vigilance Commissioner if the Central Vigilance Commissioner or such Vigilance Commissioner, as the case may be,-

(a) is adjudged an insolvent; or

(b) has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude; or

(c) engages during his term of office in any paid employment outside the duties of his office; or

(d) is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body; or

(e) Has acquired such financial or other interest as is likely to affect prejudicially his functions as a Central Vigilance Commissioner or a Vigilance Commissioner.

(4) If the Central Vigilance Commissioner or any Vigilance Commissioner is or becomes in any way, concerned or interested in any contract or agreement made by or on behalf of the Government of India or participates in any way in the profit thereof or in any benefit or emolument arising there from otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of sub-section (1), be deemed to be guilty of misbehavior.

Section quoted above makes it clear that incapacity arises only if he is ‘convicted’ for any offence and not when a person is named in an F.I.R. The judgment in this case proceeds on the footing that a mere naming of the person in the F.I.R. is sufficient to throw out a CVC from his post. If that be so, then a CVC’s fate shall be hanging at the tip of a pen held by a writer sitting in a local police station. Flick of a pen held by a mad constable shall have more power/authority than the warrant issued by the President of India. Fallacy of this conclusion is writ large on the face of the judgment.

Secondly the procedure prescribed for removal of the CVC is by a reference by the President under Art.143 of the Constitution, for opinion by the Supreme Court and the same thereafter being considered by the Constitution Bench. Therefore minimum 5 judges of the Hon’ble Supreme Court will have to consider the case and recommend that the warrant issued by the President deserved to be recalled.

Article 145(3) of the Constitution of India reads as:-

(3) the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five.

Therefore the present judgment passed by the Supreme Court in the case of the CVC is not only per incurrium but also is a nullity, which has to be treated as never came in to existence. Hence the declaration given by the Supreme Court did not affect the status of Mr. Thomas as ‘CVC. The new phraseologies like “Institutional Integrity’ and ‘impeccable integrity’ after brushing aside the statutory requirement of ‘conviction’ as ground of incapacity, is adopted in the judgment in an era where the platform on which pillars of our Constitution stands, started oscillating and the Constitution itself started giving signals of possible meltdown. It leads to an irresistible conclusion that the long and cumbersome process of reference under Art.143 by the President of India and there after the hearing of the matter by a Five Judges bench is avoided and concept of nullity found new dimension in the judgment rendered by a bench consisting of Three Judges. Law gets its force when it is consistent. Rule of law is adopted with the noble intention for enabling the layman to follow a streamlined path and not to make the citizen to be kept in dark without knowing what could be the law that has to be followed. Judgments in the Supreme Court are being reconsidered and reversed every day. That is done through an established procedure. That does not mean one set of Hon’ble judges can evolve a new dimension which is contrary to what is the law till date as laid down by the Hon’ble Supreme Court earlier.

Frustration of a litigant who suffered due to an illegal order in the hands of the Apex Court may look like an innocent drop of water. However, the same drop of water as far it remains with in the palm itself is shall appear harmless but, it is better to realize that, that very drop of water can create a hurricane or a Tsunami when get merged with similar drops and fomented by subservient factors. Indian Culture exists for millions of years only because of its basic principles of tolerance. Sri Vivekananda warned us regarding the consequences of misuse/abuse of ‘tolerance’ and he named it is ‘fatalism’. Principles of ‘Unity in diversity’ and the concept of Vasudaivaka kutumbah’ teaches us tolerance but for every rule there is an exception and that exception in the given case shall ultimately lead us to a national catastrophe on account of civil war. It is time for us to make an introspection as to why subservient activities like ‘Naxalism’ etc are gaining momentum in different parts of the country. These are the outcome of coming together of those drops of frustrations, which we are ignoring. People sitting at seats of power do not quite often realize, what is the consequence of their each action. Divide/gap between the ‘have’ and ‘have not’ is growing day by day. By and large a feeling is emerging that Hon’ble Supreme Court is for the ‘have’s’, only. By closing the eyes, one can create darkness but that darkness belongs to that individual alone. One day nature will have to do justice in its own way.

Nobody might have ever thought about the extent of damage that was caused to the morale of those officers who entered in to the esteemed offices as the IAS officers and become the stalwarts of the executive, (one of the 3 pillars of the Constitution) when all on a sudden realized that they are the easiest prays to be sacrificed especially when the real culprits loom large with out being questioned on the so called principles of ‘Simple Integrity’ much less ‘Impeccable integrity’. Petitioner in this case did not strain his finger against Mr. Thomas as a corrupt officer but the judgment proceeded on the footing that he is a corrupt officer with out affording him an opportunity to prove his innocence in a properly conducted criminal trial. Basic jurisprudence that no one shall be punished without giving an opportunity for being heard and that a person shall be deemed to be innocent unless and until it is proved to be otherwise etc., are all turned out to be principles locked in the letters and never turned out to be real.

What about his right to life with dignity? What kind of equality of protection enshrined under Art.14 of the Constitution is extended to him. The locus of the petitioner in the given case to move a Writ Petition under Art.32 itself is doubtful because as per the convention or the practice followed by the Hon’ble Supreme Court till date is that, only in a case where there is violation of fundamental right, a litigant can invoke the jurisdiction of the Hon’ble Supreme Court under Art.32. Which fundamental right of the petitioner is violated in this case, is a matter yet to be known. Of course, for every rule there is an exception and more over such a Writ Petition is not barred by Art.32 of the Constitution. What is so special in this case is that there is a shadow of doubt prevailed regarding the appointment of the CVC and the appointment was opposed by the leader of opposition as a member of HPC. Even then, when the statute prescribes a very restricted scope for the removal of the CVC and the procedure is cumbersome, then the will of the people reflected in the enactment is bound to be respected.

Even Her Excellency President of India cannot deviate from the procedure prescribed under the Act. If any order is passed pursuant to the judgment of the Supreme Court, withdrawing the warrant of appointment, that also is null and void because President cannot act with out the recommendations of the Constitution bench of the Supreme Court of India after a reference under Art.143 of the Constitution. This kind of a ‘chakravyuha’, is created only with the intention to ensure that an appointment to such a sensitive post once made shall not be lightly interfered through an ordinary principles of judicial review.

Unfortunately the judgment ignored the basic principle, i.e. “justice is not only to be done but it shall also appeared to have been done”.

At this time words of Sri Krishna to mighty Arjuna could be handy, that while giving 'THE  DISCOURSE  OF  BHAGAWAD  GEETHA’, Sri. Krishna told Arjuna, “even if the tool (method) applied is illegal or unlawful, ultimate result to be achieved is for the good of the people, then rest of it can be ignored”. Probably judgment is justified in setting aside the order of appointment of CVC because it is done with a good intention aiming at the best larger public interest.

A Tribute to Advocate Kurup

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

    Mr.Janardhana Kurup was more than a lawyer. He lived a full life, with vast and varied experience.  He started his politics (and not the political career, as now a days described) when he was only eighteen.  It was the politics of freedom struggle.  His metamorphosis as Congress Socialist leader and thereafter as a true communist was natural and spontaneous. He always remained as a true humanist.

Mr. Kurup was a versatile genius and a laborious man who devoted himself to whatever task he undertook.  As a political leader, writer, actor and ultimately as a lawyer, Mr. Kurup could effectively integrate Karma and Dharma.

My association with Mr. Kurup at the bar was not as a junior or as a follower.  I only remained as an admirer, which I think, is a matter of great honour.

For Mr. Kurup, advocacy was an art.  He was never a legal technocrat. He was organic in his work and strict in his studies. He always assimilated the admonition by Judge Downey that an advocate does not terminate his membership in human race. He performed well in criminal trials.  One would recall the observation by Justice Krishna Iyer that his experience in the stage has contributed enormously to his performance in criminal trials.  He was thorough in his homework and assertive in arguments.  He only argued in court and never begged before the Judge. Mr. Kurup was soft in his manners and strong in his submissions. He was bold, clear and erudite.  As a lawyer, he always followed the path of H.M.Seervai, the legal luminary, who believed that “courage is the greatest virtue, for without courage, there is no truth”.

His political commitment was inseparable from his social and professional commitment.  As an advocate he always stood for the downtrodden.   Money was only a byproduct for Mr. Kurup.  He was also not fascinated by power. However, he always celebrated his freedom.

He was a proletarian lawyer. At a time when the State ‘ imports lawyers for fancy fees’ in litigations of financial (and not constitutional) importance, the great legacy of Mr. Kurup is not merely political or legal but rather ethical and perceptional. Mr. Kurup represents all fine characteristics of the veteran communist lawyers for whom activism was a way of life.  Mr. Kurup was a complete lawyer and a complete man. 

David Pannick has said that “acting in the interest of a client does not always promote the interest of society in general” (Advocates – Oxford, New York, 1992).  But Mr. Kurup successfully resolved this conflict. 

Good advocacy is a condition precedent for judicialism. Judicialism, in turn is a categorical imperative for a society based on liberty and equality.  Mr. Kurup as a great lawyer and humanist, always upheld the spirit of freedom, integrity and social justice and thus practiced judicialism in its true spirit. I salute the memory of Mr. Kurup.

(This is a modified form of the article written by the author which appeared in The Deccan Chronicle dated 27.3.2011 ).

“The Rest is Silence......”

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

The diffident Prince of Denmark’s parting salvo ricocheted through my being when my eyes swept across that final lament of the elder statesman euphemistically titled ‘The Last page’.

“Now cracks a noble heart. Good night, sweet prince, and flights of angels sing thee to thy rest” my heart reverberated with Horatio as I saw the writing on the wall.

A decade and half is adequate for a discerning mind to sieve the wheat from the chaff and to sift the real guys from the pretenders. My fifteen years in the profession has not been without incident and a whole array of characters has flashed across my very impressionable eyes. However, it did not take eons for me to fathom that the old breed is dying out and the last man standing is waging a lonely battle to ingrain the lofty ideals and values of a noble profession on the deaf ears of the Generation Next.

Senior Advocate T.P. Kelu Nambiar says he has said all and that the rest is silence. I am not one to begrudge the learned senior counsel’s sense of timing nor his gloomy prophesy vis a vis the future of the legal profession. The learned senior counsel has chosen to call it a day and the Kerala Law Times shall henceforth carry no more his opportune caveats. That the Sage has deigned it fit to lay down arms in such a despondent note augers not very well for the profession.

For me the grief is particular since I have devoured every word of his pithy critiques with a vengeance and tried in my own tentative and unstructured way to emulate the titans of the past, so manifestly brought to life in the chirpy anecdotes narrated by the senior counsel in his own inimitable style.    

The learned senior counsel is never one to mince words and his plain-speaking has, not surprisingly, ruffled many a feather. However, the unmistakable lack of malice has, most often than not, won over even the most riled antagonist. The ills afflicting the system, so often underlined by the learned senior counsel, are there for all to see and need no reiteration. The malaise is not confined to any one side of the proverbial coin of justice but seems to permeate through the system like a malignant outgrowth. 

The last of the corrective forces has called it a day. The mirror that exposed the warts and all looks away. The voice of appreciation and chastisement has fallen silent. Can we endure?

I believe we can. For guidance we need look no further. The enduring words left behind by the Sage will light up the way.