A Comment on Proposed Indian Digital Copyright

Amendment from A Users Right Perspective

      (By *Saleena K.B., School of Legal Studies, CUSAT, Cochin)

Just like the attempt to reconcile the conflict of authors and pirates since the day of Gutenberg’s printing press the copyright law was again bound to make legal solutions to this new technology also. However unlike the earlier technological threats, which were mainly territorial and sovereigns were successful in developing norms to solve the crisis, digital technology as we know need a global consensus and enforcement. The so-called third layer of protection of digital works, i.e., the legal protection against the circumvention of technological protection measures,¹ was introduced at the international level through the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), both adopted on December 20, 1996 and entered into force on May 6, 2002 and May 20, 2002, respectively².  In response, law makers at national level also have enacted legal provisions aimed at banning the act of circumvention of TPM on the one hand and the production and dissemination of circumvention tools on the other hand. Prominent examples of such legislation, among others, are the, the Digital Millennium Copyright Act (DMCA S.1201), the European Copyright Directive (EUCD, Art. 6 and Art. 8), and the respective implementations of the EUCD into the laws of EU Member States. 

Even if India is not a signatory to WCT, in this global digital village it’s quite practical and sensible to have a digital amendment. Thus Indian Government has come out with a Bill to this effect, which is hotly debated and will amend the present Copyright Act of 1957. On a close perusal of the proposed section it’s really amazing that it took a neutral and intuitive approach to both pro-technologists and anti-technologists. It can be appreciated as a sound balancing of competing interests also. Sections 65A³ and 65B⁴ are the proposed sections that deal with DRM and anti-circumvention. Just like any digital millennium amendment the proposed section also begins by offering a blanket protection to TPMs imposing an undifferentiated criminal sanction for circumventing an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act. Irrespective of the nature of rights or the temperament of the TPMs a strict but not an absolute liability is cast upon circumvention. No attempt has been made to distinguish circumvention of access control devices or circumvention of copy control mechanisms or preparatory activities and actual circumvention.

Unlike the U.S or U.K model the Indian legislation propose to add the element of mensrea into this technical crime. The prerequisite of intention to commit infringement exonerates bona fide users and authentic activities outside the purview of the section. Even if it is unfeasible and intricate to identify the mensrea behind this technical crime, incorporation of mental element as a constituent of copyright infringement demonstrates the legislative intent to exonerate bona fide fair uses of copyrighted works. This intention is further clarified by the sub-section appended to the provision when the law exempts a series of activities from the scope of infringement. An absolute immunity is granted to any person to circumvent a TPM provided that it is for a use not prohibited by the copyright law. So infringement is confined to only those activities which are expressly prohibited under the Act. This privilege is much broader when compared to any other digital amendments because circumvention is permitted for all those activities even impliedly permitted by law. But it is doubted that whether this over broadened provision would extend to activities much beyond the public’s free user rights.

 However the law tries to put a control on this all-embracing provision by mandatorily obliging the person who facilitates circumventing to maintain a complete record of such other person including his name, address and all relevant particulars necessary to identify him and the purpose for which he has been facilitated. But how to maintain that records or how to ensure the verity and exactness of the information is beyond the scope of the provision. No mechanism is envisaged under the Act to accomplish the above task of acquiring precise and factual information and to identify fake and bogus information. Similar problem arises on the issue of verifying whether the circumvention complies with the purpose for which it was allowed. The law is completely silent on the issue of monitoring the modus operandi of the circumvention and also on strict maintenance of the standard of circumvention.

In addition to the automatic extension of copyright limitations in the analogue world into the digital scenario through the above provision we can see the attempt of law to design limitations suiting to the challenges of the new technology. Thus it is permissible to circumvent a TPM for doing anything necessary to conduct encryption research, or to conduct any lawful investigation; or  for doing anything necessary for the purpose of testing the security of a computer system or a computer network with the authorization of its owner or operator; or for doing anything necessary to circumvent technological measures intended for identification or surveillance of a user; and finally for taking measures necessary in the interest of national security. All this permissible uses except that for encryption appears in the legislation as unqualified and without proper guidelines. Circumvention for encryption has been qualified by the condition that it should be only by using a lawfully obtained encrypted copy. However the law is not clear on the questions like; what is an encryption, to what extent encryption is permissible,what are the safeguards to be maintained while circumventing for encrypting, what are the matters of national security,  what is the true ambit and scope of a lawful investigation and finally what all will come under the scope of testing the security of a computer programme.

Conclusion

As a whole it remains quite unclear that whether the provisions are user friendly or technology gracious. On one hand, those in favour of DRM technology argue that the text of S.65A gives an exceptional room to future misuse. Exception 2(a) to S. 65A may be misusing such that a person may take the pretext of fair dealing and record a particular music or video for personal use and thereafter, pass it on to someone else and let the copyrighted work eventually enter public domain without authorization. On the other hand the users are indistinct and hazy on the scope and span of permissible uses. Thus the provision ends in total insecurity and improbability to both users and right holders. Neither the rights of copyright holders are effectively shielded and watched over, nor are the right of users defended and fortified. India still remaining to be a consumer of information and since we are badly in need of more affordable and accessible information, a legislation favoring digital lock-up should be watched apprehensively and with prudence. The need of the hour is a soundly drafted provision balancing the competing interests, taking into account of the peculiar social, economic and technological need of the country. The experience of countries like USA, Australia or U.K. with regards to DRM and anti-circumvention legislation is useful and instructive to the Indian case.

Simple Speedy Justice

(*By Boban George, Senior Crown Prosecutor, England and Wales)

Recently a leading newspaper in Britain reported that the backlog of cases in Delhi High Court is so huge, that, at the current disposal rate it would take around three hundred years to clear that off. Most readers would have been shocked, given that they are more familiar to a justice system in which a Judge might want to make enquiries as to the delay, if a criminal case is brought to court two or three months after the offence date.

It is common knowledge that the most important reason behind this awfully slow disposal rate is the lack of or rather poor allocation of resources. I am a Prosecutor in Coventry, a town comparable in terms of population to my native place North Paravur in Ernakulam District, Kerala. Here we have, just on the criminal side, a Crown Court which has three court rooms and a Magistrates court complex which has two youth courts and six adult courts sitting every day.

Most cases in Magistrates courts will come to an end between four and six months of the offence date. Cases in the Crown court (equivalent to Sessions court in India) might take a little bit more time to come to a conclusion because of the procedural formalities of committal and often-complex nature of the cases. 

Allocation of resources for the appointment of judicial officers and staff and building new court facilities is a decision for the executive. When viewed from a political and administrative point of view, it could be correct that there are more pressing needs which should get priority before the administration of justice. Nevertheless it is not just the availability of adequate resources but the existence of certain procedural rules, which ensure the smooth flow of cases through the court system. The purpose of this article is to highlight the applicability and usefulness of Sections 9 & 10 of the Criminal Justice Act 1967 which are routinely used in criminal trials in England and Wales.

I think it is appropriate to quote the relevant and important paragraphs of the two sections.

Section 9 (3) which deals with the conditions such as signing the statement, 9 (4) &(5) which deal with the right of a party to call a witness whose statement has been served under S. 9 and sub-section 8 which deals with the manner of service of statements on the opposite party have not been given below.

9.  Proof by written statement.-- (1) In any criminal proceedings,(omitted) a written statement by any person shall, if such of the conditions mentioned in the next following sub-section as are applicable are satisfied, be admissible as evidence to the like extent as oral evidence to the like effect by that person. 

(2) The said conditions are

(a) the statement purports to be signed by the person who made it;

(b) the statement contains a declaration by that person to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that, if it were tendered in evidence, he would be liable to prosecution if he wilfully stated in it anything which he knew to be false or did not believe to be true;

(c) before the hearing at which the statement is tendered in evidence, a copy of the statement is served, by or on behalf of the party proposing to tender it, on each of the other parties to the proceedings; and

(d) none of the other parties or their solicitors, within seven days from the service of the copy of the statement, serves a notice on the party so proposing objecting to the statement being tendered in evidence under this section:

Provided that the conditions mentioned in paragraphs (c) and (d) of this subsection shall not apply if the parties agree before or during the hearing that the statement shall be so tendered.

 (6) So much of any statement as is admitted in evidence by virtue of this section shall, unless the court otherwise directs, be read aloud at the hearing and where the court so directs an account shall be given orally of so much of any statement as is not read aloud. 

(7) Any document or object referred to as an exhibit and identified in a written statement tendered in evidence under this section shall be treated as if it had been produced as an exhibit and identified in court by the maker of the statement. 

10.  Proof by formal admission. -- (1) Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant, and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted. 

(2) An admission under this section— 

(a) may be made before or at the proceedings;

(b) if made otherwise than in court, shall be in writing;

(c) if made in writing by an individual, shall purport to be signed by the person making it and, if so made by a body corporate, shall purport to be signed by a director or manager, or the secretary or clerk, or some other similar officer of the body corporate;

(d) if made on behalf of a defendant who is an individual, shall be made by his counsel or solicitor;

(3) An admission under this section for the purpose of proceedings relating to any matter shall be treated as an admission for the purpose of any subsequent criminal proceedings relating to that matter (including any appeal or retrial). 

(4) An admission under this section may with the leave of the court be withdrawn in the proceedings for the purpose of which it is made or any subsequent criminal proceedings relating to the same matter.

The Criminal Procedure Rules in England and Wales make a demand on the courts to play a proactive role in the conduct and management of cases. When trials are fixed, the defence are asked to identify the issues. Once, disputed and non disputed facts are identified, an agreement as to which witnesses the prosecution may call and which witness statements can be read under section 9 (the contents of which are not disputed ) would be reached. It depends very much on the nature and circumstances of the case, but it is my experience that, a whole trial can be conducted without the prosecution calling even one witness to give live evidence in court, for example in cases where the defence admits all the facts alleged but raises an issue of lack of mens rea. 

Section 10 of the CJA 1967 is applied when a specific fact, as opposed to the contents of a statement, is admitted either by the prosecution or by the defence. 

Suppose A is charged with posession of cocaine. A does not dispute the fact that the material seized is cocaine but raises the issue of  the actual posession of the drug. In such a situation the fact that the material seized is cocaine can be admitted under section 10 and the ensuing trial will be focused on the remaining issue of posession. The beauty of this approach is, instead of the prosecution leading all the evidence including forensic analysis and examining everybody involved in the determination of the nature of the drug, the evidence can be presented in a two line statement signed by both the parties.

I honestly believe that if similar provisions are adopted in the Criminal Procedure Code it would make a big impact on the way our criminal justice system works. I am acutely aware of the fact that this would be a major change which can take roots only if 

(a) the courts adopt a proactive role, engaging with the prosecution and defence, identifying clearly the issues in the case thus adopting a new position of active case management and 

(b) the defence lawyers show a degree of willingness to undergo a big change to the work culture and co-operate to a great extend with the prosecution and the courts.

The benefits would be manifold. 

The trials would be less time consuming, saving precious court time which would in turn help in the speedy disposal of cases and the reduction of the huge back log; the whole trial process would be simpler, more efficient and streamlined, without in any way compromising the strict rules of evidence;  fewer people, police and civilians would be interrupted from their duties and daily lives to attend courts as witnesses.

Emigration Act -- An Over View

(By Sathyashree Priya Easwaran, Advocate, High Court of Kerala)

Sarah, a nurse by profession was overwhelmed when she received an overseas appointment, recruiting her as a nurse in one of the leading hospitals in Yemen. The terms of employment were quite lucrative. Five of her friends had also been recruited. After obtaining emigration clearance, Sarah and her friends landed in Yemen, only to find that their actual employment scenario was repulsive. The local agent in Yemen, denied them proper food and accommodation, had taken away a major portion of their salary, and threatened to abuse them sexually. Sarah, who hails from a poor family, had paid an exhorbitant amount to her agent in India in order to procure such a lucrative job. Though repayment of such huge amounts hangs as a Sword of Democlesabove her head, she did not choose to suffer in silence. With the help of her friend, with whatever money that remained with her, she managed to escape from her monstrous agent and landed safely in our motherland! However her friends were not so fortunate!

There are innumerable such Sarah’s suffering silently in the monstrous and inhuman clutches of employers abroad. There have been several cases of emigrants like Sarah, facing serious difficulties including exploitation and harassment at the hands of the foreign employers. As Indian citizens what is the protection that our Government extends to such hapless victims ? What are the probable remedies available to Sarah.

A lady victim like Sarah, in the hypothetical case given above, is likely to seek for two effective remedies.

(1)  Criminal prosecution against the offender

(2)  Compensation for the wrong committed against her.

Well, Sarah can seek for her reliefs under the Emigration Act, 1983 which was enacted with the sole objective of preventing exploitation of emigrants by the recruiting agents and employers!! All Sarah can do, is to file a complaint against her recruiting agents, before the Protector of Emigrants (PoE) seeking prosecution of her recruiting agent; Simultaneously she can file a suit against the agent (Under Section 37 of the Act the Protector of Emigrants are clothed with certain power of Civil Court but are not empowered to pass judgments & decrees. Suits can only be filed in a Civil Court.), seeking for compensation. Upon receipt of a complaint, depending upon the relief sought, the PoE has the power to refer the complaint to the concerned police officers (of the State or the Union Territories) for criminal action. There are a lot of such issues, as suffered by Sarah, involved in the process of Emigration.

State  Responsibility  Towards  Individuals

The State (State - Refers to nations throughout the article as coined by Huge Gratious, father of International Law.) (nation) is bound to protect its nationals. Internationally wrongful acts can occur in respect of the treatment of individuals. The State has the right to make a claim on behalf of the individual who has suffered injury. States may often raise diplomatic protests about the treatment of individuals by foreign State. The basic rule is that the victim must be a national of the plaintiff State at the time the damage was caused(Panerezys Saldutiskiscase (1939) decided by the P.C.I.J.). Clothed with such powers the State is responsible for the safety of its nationals. The major issues involved in the Emigration have been identified as follows.

The  Major  Issues  Involved  in  Emigration

1. Sexual harassment, exploitation, sub-standard living and working conditions.

2. Delay in payment of death or disability compensation.

3. Employment contract unilaterally changed to the disadvantage of the workers by the foreign employer.

4. Worker not given a job at all by the employer.

5. Employers not paying wages on time or paying much less than promised.

6. Registered recruiting agent charging a higher service charge than prescribed etc.

Scrutiny  of  the  Legal  Provisions

Under the provisions of the Act, the Protector of Emigrants are vested with various powers and are also assigned duties(Sections 4 and 5 of the Emigration Act, 1983.). He/she may reject an application for emigration clearance if the terms and conditions of employment which the applicant proposes to take up are discriminatory or exploitative and if the applicant will have to work or live in sub-standard working conditions(Section 22(5) of the Emigration Act, 1983.). Further, the Emigration Act also clearly lays down that no citizen of India shall emigrate unless he obtains the emigration clearance from the Protector of Emigrants(Section 22(1) of the Emigration Act, 1983.). It is further provided that recruitment by employers abroad can either be through recruiting agents or under permit(Section 10).

Legal  Competency  of  the  Agents

Registration of recruiting agent has been made mandatory under the law(Section 10 of the Emigration Rules, 1983.). Registration is subject to an affidavit, an undertaking and an amount of security which shall not be less than rupees one lakh(Rules 7 & 8 of the Emigration Rules, 1983.). If these basic parameters are complied with, an agent is entitled to a licence. It is also prescribed under the law that the service charges of an agent shall not exceed Rupees 2000(Rule 25 of the Emigration Rules, 1983.). It is a positive mandate on the holder of the registration certificate that he shall ensure that the employer observes the terms and conditions of the contract(Rule 10(xii) of the Emigration Rules, 1983.), that agent shall not charge any amount from the emigrant towards repatriation expenses etc.(Rule 10(xiii) of the Emigration Rules, 1983.)

Punishment  to  Agents  for  Violation  of  Norms

Punishment by way of imprisonment up to a period of two years and fine up to two thousand rupees for offences relating to Emigration have been provided under the Act(Section 24(1) of the Emigration Act, 1983.). Cancellation of certificate is also provided for(Section 14(1) of the Emigration Rules, 1983.). However, when an agent certificate is cancelled, he shall not be eligible to make an application for another two years from the date of cancellation(Section 14(b) of the Emigration Rules, 1983.). In a leading case the cancellation of licence of an agent was upheld by the High Court of Delhi for not maintaining proper records and collecting excess service charges than provided for under the Rules (M/s.Dewan Consultants & Pvt. Ltd. v. Union of India & Ors.,W.P.(C) No.5794/2008, Delhi High Court.).

Unregistered Agents

Though it is compulsory under law to register as an agent, there are a number of unregistered agents duping the emigrants. However in a leading case, a criminal action initiated against an unregistered agent for a bogus paper publication inviting recruitment of doctors, nurses and technicians was quashed by the High Court of Andhra Pradesh for want of previous sanction of Central Government(B.T.Deva Varma v. State of A.P. & Ors.(2002 (2) ALT Cri. 500).).

Method  of  Recruitment  by  Employers  Through  Permit

Foreign employers can also recruit directly in accordance with a valid permit obtained from the Central Government. A permit once granted can also be cancelled or suspended (Section 20 of the Emigration Act, 1983.). However for effective implementation of these provisions against foreign employers bilateral treaties or agreements ought to be signed for the safety of labour¹. However it is not mandatory under law, for Indian Missions and posts abroad, to take up such matter with the foreign employer. It is often treated as an administrative policy.

The  Present  Scenario

While the number of convictions under the Emigration Act are very less, the reports in the media indicate that such crimes are on the increase. Despite the protection provided by law, in practice, we see a large number of emigrants being harassed and exploited. Why is this so?

Whenever a crime is committed, there is an offendor (offenders) and a victim (or victims). While the entire criminal jurisprudence focuses on punishing the offenders, the victims of the crimes are seldom compensated. The victims often have to suffer the injuries silently and bear their own cross. To salvage the situation certain corrective measures would definitely help.

Urgent  Corrective  Measures

• Our (State) ought to enter into treaty agreements with the host (States) who are in need of skilled workmen from our country. Labour partnership agreements ought to be signed where employment opportunities are probable to emerge in future to improve bilateral co-operation.

• Focus has to be laid on accountability. There has to be legal mandate for the preparation of reports by the Protector General of Emigrants regarding complaints received by the Protector of Emigrants, the pending investigations, number of convictions under the Act, proposed measures for minimizing the crimes. Such reports have to be tabled before the Parliament annually.

•  Section 37 of the Act to be amended to enable the Protector of Emigrants to pass judgments and decrees awarding compensation to victims in suitable cases.

•    Also victims of such crimes have to be duly compensated. Victimology jurisprudence is the need of the hour. A fund has to be created for the protection of the emigrants. Provision for compensation to victims must be considered from a portion of the licence fee collected from the agents.

•  Illegal agents must be severely dealt with. Suo motu power of detection of illegal agents has to be provided with the Protector of Emigrants. Section 27 of the Act has to be amended empowering the Police Officials to initiate criminal proceedings against unregistered agents without waiting for the prior sanction of the Central Government. The amount of fine and the period of imprisonment has to be heavy as to have a deterrent effect.

•  Increasing licence fee for the agents is to be considered to avoid unscrupulous agents from registering.

•  The State through its mechanism, must discourage emigration to States which do not provide for basic safety to our nationals. A mandatory duty should be cast upon the State to educate its nationals about the existence of such regulations and norms. Multimedia awareness campaign could be the best option undertaken by the Government.

• Whenever there is an abuse, the victims must be encouraged to seek legal help from Indian missions abroad and with their help to set the law in motion, wherever they are! Errant foreign employers ought to be blacklisted and the emigrants to be provided with those particulars!

1.  A New Emigration Bill is pending and is expected to be introduced in Parliament during the Budget Session. Seeking to prevent exploitation of Indian workers abroad, the Government is planning to make it mandatory for foreign employers from certain countries to register in India under a new Emigration Law.

Designation Sans Dignity

(By T.P.Kelu Nambiar, Sr.Advocate, High Court of Kerala)

Some years ago, I had occasion to deal with the aspect of right of ‘Preaudience’ of Senior Advocates. The topic has gained more importance since then. So let me revisit the topic, and put old wine in new bottle; with added effervescence. Herein, I have endeavoured to highlight further aspects of the matter; and, at the same time, this write-up conceals more than it reveals, because, being a Senior Advocate myself, I should not indulge in prolixity.

Let me state an important aspect at the beginning itself for fear of forgetting it at the end. A Senior Advocate should try to become famous in his life-time, because no name of a lawyer continues to grow after his death. Remember, law students are not taught about great lawyers. Even Thomas Erskine’s name was buried with his body. There seems to be a line of thinking that lawyers practise advocacy on behalf of the evil, the dangerous, and the simply unpleasant elements in the society, thus advancing bad causes, as David Pannick would say.

Henry Campbell Black defines ‘Preaudience’ as: “The right to being heard before another. A privilege belonging to the English Bar, the members of which are entitled to be heard in their order, according to rank, beginning with the Attorney and Solicitor General, and Queen’s Counsel, and ending with barristers at large”.

In Attorney-General for the Dominion of Canada v.Attorney General for the Province of Ontario, 1898 A.C. 247 (PC), Lord Watson observed: “The position occupied by a Queen’s Counsel (or King’s Counsel) ... is in the nature of an Office under the Crown....; and it is also in the nature of an honour or dignity to this extent, that it is a mark and recognition by the Sovereign of the professional eminence of the counsel upon whom it is conferred”. It is recorded that Queen Elizabeth I appointed Francis Bacon as ‘Queen’s Counsel Extraordinary’.

Senior Advocate in India is akin to Queen’s Counsel (QC)/King’s Counsel (KC) in Britain.

In India, the status of Senior Advocate is conferred by the Supreme Court or a High Court. S.16 of the Advocates Act 1961 provides for the division of the Bar into Senior Advocates and other Advocates. This was as recommended by the Law Commission. Sub-s.(1) of S.16 says that there shall be two classes of Advocates, namely Senior Advocates and other Advocates.

Under sub-s.(2) of S.16:

“An Advocate may, with his consent, be designated as Senior Advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability, standing at the Bar or special knowledge or experience in law, he is deserving of such distinction”.

Under sub-s (3) of S.16, Senior Advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interests  of the legal profession, prescribe.

Section 17(2) of the Advocates Act lays down that the roll of Advocates prepared and maintained by State Bar Council shall consist of two parts, the first part containing the name of Senior Advocates. The rules provide:

A Senior Advocate shall not file a vakalathnama; a Senior Advocate shall not appear without an Advocate-on-Record in the Supreme Court or without an Advocate in Part II of the State Roll, in any Court or Tribunal; a Senior Advocate shall not accept instructions to draft pleading or affidavits, advice on evidence or to do any drafting work of an analogous kind in any Court or Tribunal, except in settling any such matter as afore-said in consultation with the Junior Advocate/Advocate-on-Record. A Senior Advocate shall be free to make concessions or give undertakings in the course of his arguments on instructions from the Junior Advocates; a Senior Advocate shall not accept directly from a client any brief or instruction a Senior Advocate may in recognition of the services rendered by the Junior Advocate appearing in any matter, pay him a fee which he considers reasonable. [Emphasis supplied, with a suggestion that ‘may’ may be read as ‘shall’].

High Courts have framed Rules under S.16(2) of the Advocates Act, regarding designation as Senior Advocates.

Section 23 of the Advocates Act contains provisions regarding right of pre-audience. It may be useful to read S.23:

“23. Right of Pre-audience:-- (1) The Attorney-General of India shall have pre-audience over all other advocates.

(2) Subject to the provisions of sub-s.(1) the Solicitor General of India shall have pre-audience over all other advocates.

(3) Subject to the provisions of sub-ss.(1) and (2), the second Additional Solicitor-General of India shall have pre-audience over all other advocates.

(3A) Subject to the provisions of sub-ss.(1),(2) and (3), the third Additional Solicitor General of India shall have pre-audience over all other advocates.

(4) Subject to the provisions of sub-ss.(1), (2), (3) and (3A), the Advocate General of any State shall have pre-audience over all other advocates, and the sight of pre-audience among Advocates-General inter se shall be determined by their respective seniority.

(5) Subject as aforesaid,

(i) Senior Advocates shall have pre-audience over other advocates, and

(ii) The right of pre-audience of senior advocates inter se shall be determined by their respective seniority”.

The above aspects and provisions would show that Senior Advocates are a class by themselves; and have statutory and conventional duties and obligations; and rights and privileges.

I am prompted to come out with this write-up in view of the recent suo motu designation of several advocates as Senior Advocates. Though I lay no claim to being wise as Quintiliamus, I may not be considered to be a talking toy. Designation as Senior Advocates is not for food and fun, or lawyer luxury. I am sure, they will perform their duties, adhering to the statutory mandates and conventional duties and obligations; and remembering, ‘old wood burns brightest’, and that they are supposed to possess ‘advocacy high’; and, further, their anxiety should never be only to tread on ‘Alberto Torresi’, and live in a house built by angels. 

But, they have also to see that their rights and privileges are not breached, and they should act with courage and independence, having regard for their own character though.

I have a hunch that the Senior Advocates’ right of pre-audience is not uniformly conceded by the courts. I have had occasion to see a Senior Advocate, the giant redwood of the High Court Bar, waiting for considerable time in some Courts, with diminishing energy, without being taken note of by judicial eye. An advocate is not designated as Senior Advocate only to appear in Courts wearing Senior Advocates' vestments. The criteria for designation can not be forgotten immediately after the designation. Do not confer a proud position and then show scant respect to its possessor. Do not designate and despise at once. I am constrained to tell the truth; let it not offend anybody. 

I remember a situation in which I had to assert my right of pre-audience. A learned Judge after passing over the case in which I was instructed, till the ‘call work’ was over, took up the ‘passed-over’ case of a very junior advocate. When I pleaded to take up my case, I was asked to wait, curtly though. I lost no time to assert my right of pre-audience, because I felt I was disdained. The learned Judge yielded, not without displeasure though. I could see the Judge’s huff and puff. Subsequent events, which I respectfully withhold, showed that the learned Judge was not quite aware of the ‘right of preaudience’ of Senior Advocates, owners of career-high ranking in the legal profession.

A Senior Advocate is a strong presence in Court. This has to be realised by both the Bar and the Bench. Causing embarrassment, in any manner, to a Senior Advocate is an affront to the judicial system itself. We have to learn the correct lesson from the British system, which is the basis of the institution of Senior Advocates. There the honour is conferred to be really honoured.

A Queen’s Counsel/King’s Counsel does not get down on his knees when he makes submissions to Court. He sustains his reputation for credibility, professional morality, independence, boldness and transparency. Mercifully, Senior Advocates are not in Judiciary’s gravitational field. Attention, Senior Advocates and Judges.

A Senior Advocate is an unbossed advocate, with confident courage. The ‘cab-rank rule’ is not applicable to him. But he should be possessed of dangerous honesty and requisite skill and knowledge. He does not discuss weather in a Court room. We want Judges eager to listen, not judges who come with ready-made judgments before the adversary process begins; and Senior Advocates eager to argue, without indulging in padding and wasting words, remembering not to blow balloons till they burst; and realising that their advocacy is not on the block; and making the Judge understand that they are not arguing in a lab, but before a Court. The learned Bench should never consider that the advocate is ‘behind’ the Bar. 

I exhort Senior Advocates to bequeath their name to the next generation of lawyers. When a Senior Advocate speaks on respectability, he should look like his subject. After all, Senior Advocates are not a dime a dozen.

A disciplined legal system visualises disciplined Judges and Advocates. If an Advocate behaves in an unprofessional manner, the Judge or the Bar Council can correct him. “If a Judge errs in law, an appeal to older, wiser Judges will usually provide a remedy. But if a Judge acts in an injudicial manner there is often muchless that an aggrieved person can do", said David Pannick. Gone are the days of Rabelais’s Judge Bridlegoose who decided cases by throwing dice.

Trial Work Thrills

(By K.Ramakumar, Senior Advocate, High Court of Kerala)

Speech  rendered  on  the  final  day  of  Trial  Advocacy  Competition held  in  the  NUALS,  Kochi)

I am honoured to be called upon to address this august audience comprising of promising youngsters, both men and women, who will adorn one day, I am sure high positions in the Bar and the Bench. I had the privilege of watching the performance of participants in the final of the “Trial Advocacy Competition” and I am happy to say that some of them hold out to be bright stars in the legal profession in future.

Trial work in Courts is always a thrilling experience. A trial lawyer meets the client, meets his adversary and tackles the Judge, which an appellate lawyer can never enjoy. There were great lawyers like Sir Edley Norton of the Madras High Court, who preferred to conduct trials in the High Court and in the Sessions Courts than argue Criminal Appeals before Division Benches. A trial lawyer is expected to command quick wittedness, grasp of events, management of unexpected situations and masterly cross-examination. In cross-examining a witness, the most important thing is when to stop. The cross-examining counsel is not expected to get an adverse answer even if he is not successful in getting a favourable answer from the witness. Cross-examination is an attractive art. It is not mere intimidation of witnesses as some counsel appear to think. I should think that the best method of cross-examining is to ask several questions on the point the counsel wants to make out through the witnesses. It will undoubtedly yield results. A cross-examining counsel should be watchful to note the psychological impact the questions will have in the minds of the witnesses cross-examined.

Pleadings and procedure play very important part in trial work. Pleadings are the fountain-head of a cause in the Trial Court. Without pleadings no evidence will be permitted during the course of the trial. The pleadings have to be consistent with the procedural law. Two major procedural laws in the country are the Code of Civil Procedure and Code of Criminal Procedure. Along with the pleadings the language used by the lawyers has to be dignified, precise and accurate. These days the biggest casualty in courts, both in the Trial Court and the High Court is language. When English continues to be the language of the courts, it behoves all legal practitioners at least to ensure that they are using the correct language. These days we find howlers in court. For instance in a Trial Court a new entrant stood and prayed for filing “abuses” when the expression should have been ‘time for objections’. Command of language is extremely important for legal practitioners, which unfortunately is not properly taken care of these days. On this score students of National Institutions in Law have an added advantage than their compeers in other institutions. Please therefore, make good use of the same and put to use the command of language you possess both in pleadings and in the address to the court.

In all trials, the counsel will have to bestow attention on the evidence to be recorded whether documentary or oral. In fact it is the trial lawyer who moulds the case in the early stage. In appeal, cases turn mostly on questions of law. A firm basis therefore, will have to be established by the trial lawyer on facts which should form the foundation for winning the case. For instance in a trial under Section 138 of the Negotiable Instruments Act, the complainant’s counsel has to prove that a valid cheque was issued, that it was returned dishonoured and that the mandatory requirements stipulated under S.138 of the Negotiable Instruments Act are brought on record. It has to be proved that the notice under the Section has been sent to the accused and served on him. The legal liability also has to be proved. Many a trials have ended fatally for want of care at the trial stage on these basic issues.

In defamation cases, the publication has to be proved mandatorily and that the publication has been made within the jurisdiction of the court which is approached by the complainant.

In cases of promissory notes, a trial lawyer will have to establish that a promissory note has been duly executed; the signature found therein is that of the defendant and that it is supported by consideration. These basic requirements cannot be left to be resolved at the appellate stage. A trial lawyer therefore, will have to be watchful of the law as well as facts and should be vigilant about letting in evidence in support of both.

Unfortunately however, the quality of trial lawyers is deteriorating day by day. There was a time when young entrants in the Bar used to watch masterly cross examination by stalwarts in the Bar. These days the green horns in the Bar do not get any such opportunity at all as the era of stalwarts is fast diminishing. The old concept of learning and getting trained under a Guru is fast disappearing leading to serious erosion in the quality of the Bar and the high standards it used to maintain.

The legal profession is the only one which finds a proud place in the Constitution of India (See Article 22). The right to engage a lawyer has become crystallized as much as a fundamental right. No other profession finds its name recorded in the Constitution of India. This indeed is a rare honour to the members of the legal profession. They are recognized as social engineers with commitment to integrity, honesty and maintenance of high ethical standards in the profession. Recent events in some parts of India however, are a pointer and a sad reflection on errant and deviant behaviour by some members of the Bar.

It lies on the young shoulders of new entrants to the legal profession from prestigious institutions like NUALS to restore back the legal profession to its past glory and esteem. Please remember that three great nation builders -Gandhi, Lincoln and Lenin - had adorned our profession. Let me remind you that it was the members of the legal fraternity in Pakistan that brought the journey back to democracy in that country ensuring the supremacy of the judiciary and restoration of the Judges sacked by a dictatorial regime.

Let these noble thoughts inspire and guide the young entrants to the Bar from this institution.

Thank you for your kind attention.