On the Trial of How the Judge Think

By P. Chandrasekhar, Advocate, Ernakulam

22/11/2010

On the Trail of 'How the Judges Think'

(By P.Chandrasekhar, Advocate, Ernakulam)

As to ‘how the Judges think’* is better explained by Judges of vast and varied judicial experience. It is not easy for lawyers who have no practical experience of judicial thought process, to find blind spots in the opinion of Justice R. Basant in Jose v. State of Kerala (2010 (2) KLT 163) or in the article of Justice (Retd.) U.L. Bhat (2010 (3) KLT Journal 1), though their expositions are at sharp variance as to ‘how the Judges think’. Lawyers, however, cannot be totally unconcerned as to ‘how the Judges think’ in as much as judicial process is not the concern of the courts alone but is also of the lawyers, litigants and public at large.

The major well known statement as to ‘how the Judges think’ appears to be that of the Earl of Halsbury when he said in Quinn v. Leatham ((1900-03) All E.R. 1) that ‘every lawyer must acknowledge that the law is not always logical at all’. Julius Stone has quoted Justice Porter that ‘the decision is a matter of outlook and impression rather than one for logical argument’¹. Benjamin N Cardozo in an address given at Yale University in 1921 asked himself a question as to ‘what I do when I decide a case’ and sought to answer it, but not to his entire satisfaction, that ‘he must balance all his ingredients, his philosophy, his logic, his analogies, his history, his customs, his sense of right and all the rest and adding little here and taking out a little there must determine, as wisely as he can, which weight shall tip the scales’² . Cardozo did not fail to recognize the human limitations in a Judge and acknowledged that ‘deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habit and convictions, which make the man, whether he be litigant or Judge’. He sought to remedy the limitation, a little bit, by advocating ‘training of the Judge, if coupled with what is styled ‘the judicial temperament’. Two years later Cardozo gave another lecture on the subject at Yale University in which he explained more explicitly the thoughts ‘imperfectly developed’ in the first lecture³. He explained that act of judging is shaped by experience of life, understanding of the prevailing canons of justice and morality, study of the social sciences and in the end, by intuitions, guesses and even ignorance or prejudice. He said that justice itself ‘may mean different things to different minds and at different times’.

Jerome Frank, a U.S. Appellate Judge, held an opinion that ‘the Trial Court’s finding of the facts involves a multitude of evasive factors⁴. He said that a Trial Judge in a non jury trial or the jury in a jury trial must learn about the facts from the witnesses, and witnesses being humanly fallible, frequently make mistakes in observation of what they saw and heard or in their recollections of what they observed or in their court-room reports of those recollection. He also said that Trial Judges or juries, also human, may have prejudices - often unconscious, unknown even to themselves - for or against some of the witnesses, or the parties to the suit, or the lawyers. According to Jerome Frank prejudices when they are racial, religious, political or economic, may sometimes be surmised by other, there are some hidden, unconscious biases of Trial Judges or jurors, such as for example, plus or minus reactions to women, or unmarried of Trial Judges or jurors, such as for example, plus or minus reactions to women, or unmarried women, or red-haired women, or brunettes, or men with deep voices or high-pitched voices or fidgety men or men who wear thick eye glasses or those who have pronounced gestures or tics - biases of which no one can be aware. Such prejudices, he says, is peculiar to individual Judge or juror and, therefore, cannot be formulated as uniformities or squeezed into regularized ‘behaviour patterns’ and as such neither Judges nor jurors are standardized. According to Jerome Frank the major cause of legal uncertainty is fact-uncertainty, the knowability, before the decision of what the Trial Court will ‘find’ as the facts, and the unknowability after the decision of the way in which it ‘found’ those facts. If a Trial Court mistakenly takes as true the oral testimony of an honest but inaccurate witness or a lying witness, seldom can an upper court detect his mistake; it therefore usually adopts the facts as found by Trial Court. It does so because the Trial Court say and heard the witnesses testify, while the upper court has before it only a lifeless printed report of the testimony, a report that does not contain the witnesses’ demeanour.

For the realists, the Judge “decides by feeling, and not by judgment; by ‘hunching’ and not by ratiocination” and later uses deliberative faculties “not only to justify that intuition to himself, but to make it pass muster.” ⁵ In the view of Judge Hutcheson ‘the Judge really decides by feeling and not by judgment; by hunch and not by ratiocination, such ratiocination appearing only in the opinion. The vital motivating impulse for the decision is an intuitive sense of what is right or wrong in a particular case and the astute Judge enlists his every faculty and belabours his haggard mind not only to justify that intuition to himself, but to make it pass muster with his critics. Accordingly, he passes in review all the rules, principles, legal categories and concepts which he may find useful directly or by an analogy so as to select from those which in his opinion will justify his desired result”. In the words of Jerome Frank ‘a Judge’s decision is determined by a hunch arrived at long after the event on the basis of his reaction to fallible testimony’. Judge Hutcheson’s view was in contrast to the view held by formalists, that is apply the governing law to the facts of a case in a logical, mechanical, and deliberative way. For the formalists, the judicial system is a “giant syllogism machine and the Judge acts like a “highly skilled mechanic.”

According to Daniel Goleman, who used to teach Behavioural Science in Harvard University “prejudices are a kind of emotional learning that occurs early in life, making these reactions especially hard to eradicate entirely, even in people who as adults feel it is wrong to hold them” ⁶. He quotes Dr. Varnik Volkan, a psychiatrist at the University of Virginia to say that the psychological price of loyalty to one’s own group can be antipathy toward another, especially when there is a long history of enmity between the groups. Dylan Evans of Kings College, London argues that every culture has its emotional climate and that ‘emotion is reason’s ally and not its enemy. He quotes Psychologist James Averill who argued that it is precisely the function of many emotions that they help people to cope with the particular demands of their culture. These culturally specific emotions, according to him is different from basic emotions which are not like words and are closer to breathing and are part of human nature⁷. He says that the best recipe for success is a mixture of reason and emotion and not reason alone. He also says that emotionally intelligent people know when it is right to controltheir emotions and when it is right to be controlled by them. Emotional intelligence also involves the ability to read other people’s emotions correctly. When people are in a neutral mood or have lots of time to think, bad arguments are not very persuasive. But when they are in good mood and have little time to think, people are more influenced by invalid arguments (and less by valid ones). Combination of being in a good mood and being in a rush forces one to take short cuts, basing one’s judgment less on logical analysis and more on contextual clues such as the reputation of the speaker. According to Dylan Evans ideally we are neither completely rational nor completely emotional but manage to strike the elegant balance between the two that we refer to as emotional intelligence.

Research material on the subject under discussion is mind boggling. Latest among them is Richard A. Posner’s “How Judges Think”. The book, according to Posner is a cogent, unified, realistic and appropriately eclectic account of how Judges actually arrive at their decisions in non routine cases. According to him ‘there are many positive (that is, descriptive as distinct from normative) theories of judicial behaviour’. He calls it nine theories of judicial behavior. The theories are the attitudinal, the strategic, the sociological, the psychological, the economic, the organizational, the pragmatic, the phenomenological and the legal theory. In the attitudinal theory Judges decisions are explained by the political preferences they bring to the case. Strategic theory explains judicial behavior influenced by their worry about reactions to their decisions of other Judges (whether their colleagues or the Judges of higher or lower court), legislators and the public. In other words, it says that whatever a Judge wants to accomplish will depend to a considerable degree on other people in the chain of command, broadly understood. Sociological theory of judicial behavior focuses on group-dynamics. It is pointed out that a panel in a sex discrimination case in which all Judges are male is likely to decide the case differently than a panel that contains a female Judge. The economic theory of judicial behavior treats the Judge as a rational, self interested utility maximiser. He has a “utility function”.

Organizational theory arises from the conviction that a Judge and the Government that employs the Judge have divergent interests and that the principal will try to create an organizational structure that will minimize this divergence and the agent will resist. Pragmatic theory of judicial behavior refers to basing judgments (legal or otherwise) on consequences. It is more concerned with the effect of the decision is likely to have. It is opposite of legalism. Phenomenological theory of judicial behavior is explained as ‘a bridge from the pragmatic theory to the legalist theory’. It points to the self description or self consciousness as to what a Judge does and what it feels like to make a judicial decision. It is pointed out that Cardozo who published his impression in The Nature of Judicial Process belongs to this category. Legalism, as a theory of judicial behavior is concerned with decision strictly as per the rules constituting the ‘law’ rather than by factors that are personal to Judges. The ideal legalist decision is the product of a syllogism in which a rule of law supplies the major premise, the facts of the case supply the minor one, and the decision is the conclusion. Posner has catalogued five phenomena that could be regarded as instances of bias in the finding of facts in a trial setting.

(1) Conscious falsification, (2) Priors shaped by experience, temperament, ideology or other personal nonlegalistic factors, (3) Cognitive illusions, (4) Prior shaped by irrelevant reactions and (5) Twisting the facts to minimize the likelihood of being reversed. According to Posner conscious falsification is a rare occurrence. Judges try to be good Judges and they will not deliberately falsify the facts because that would be a serious violation of anyone’s idea of what a good Judge does. He, however, said that appellate level Judges have a tendency to report the facts in their opinion in such a way as to make them fit the legal conclusion smoothly or shape the precedent that the decision will create. A Judge may decide to omit from his opinion a fact that he considers irrelevant even though a lay person might think it important to complete picture of the factual situation out of which the case arose, because the Judge does not want the court in a subsequent case to distinguish his case on the basis of that fact. The second category of bias arises because no one can ignore all his priors in making a decision. If an arresting officer says one thing and a person he arrested says the opposite, the Judge’s decision as to which one to believe is likely to be influenced by the Judge’s background. Was he a prosecutor before he became a Judge? A defense lawyer? What experiences has he or members of his family or friends had with police or prosecutors or for that matter with criminals? If other indicators of the witnesses’ credibility are hopelessly inconclusive, it is rational and probably inevitable that the Judge should rely on them as a tie breaker. Cognitive illusions are assumed to arise by interaction with assumptions about the world, leading to “unconscious inferences”. Posner points out that ‘since Judges do not like to be reversed, both for career reasons (in the case of Judges who aspire to promotion to the court of appeals) and for power reasons (reversal nullifies their decision), also for reasons amour proper, trial Judges are some times tempted to bend the facts so that they fit snugly into an uncontroversial legal category’. He also points out that Judges are unlikely to do this consciously, but it is undoubtedly an unconscious tendency.

Posner is not without critics. Jeffrey S.Sutton, another Judge of the U.S. Court of Appeal, considers that Posner overstated his case in maintaining that it is naive to believe that there are right answers to legal questions.⁸ According to Sutton ‘not only does this risk misleading young Judges, law clerks, and advocates, but it also is false in the main.” Sutton also says that ‘The bench is too diverse, yet its decisions too uniform, to think that Judges are ink blotting their way through the docket.’ Why work at answering a difficult legal problem correctly if it is a fool’s errand, doomed to turn on conscious and unconscious policy preferences no matter how much effort the Judge brings to the task? He asks. According to him all cases have a right answer. Most of the routine easy cases have definitely had a legally correct answer, and there is no way to answer the question posed, whether legal or factual, except in one direction. The difficulties explained by Posner therefore do not in any way affect most of the routine easy cases brought before the Courts every day. It is only in hard cases where there two equally right answers and both are legal, the difficulty arises. Even in such cases, as Dworkin said there is a legally correct. It is in such cases the prerogative choice of the Judge really arises. And that is what is often referred to as judicial discretion. No litigant and for that matter no Judge or a lawyer would like even to think that there are no legally correct answer to even the hardest of hard cases brought before the Courts. Where the rules are precise and facts are clear courts face no difficulty. The problem arises only when there is no statutory provision or precedent or common principle to fall back on in a case. In such cases Courts generate a proper decision by either policy or principle⁹. Ahron Barak, who was President of the Supreme Court of Israel, defined a ‘hard case’ as a case in which a Judge has the power to choose between two alternatives, both of which are lawful. The power to choose is a judicial discretion. This discretion is not a psychological concept. It reflects a normative situation¹⁰ . According to Aharon Barak in ‘easy cases’ in which there is only one answer to legal problem and the Judge has no chose but to choose it. Such cases do not generally reach the highest court at all. According to Barak ¹¹ ‘hard cases’ are not like that. It calls for a normative judicial policy, that is, a systematic principled approach to exercise judicial discretion. He proceeds to say that judicial policy may differ from Judge to Judge and the ‘differences stem from variances in education, personalities, responses to the world around us, and outlooks on the society in which we live. This is only natural. Each Judge is a distinct world unto himself, and we would not wish it otherwise. Ideological pluralism, not ideological uniformity, is the hall mark of Judges in democratic legal systems. Diverse Judges reflect - but do not represent - - the different opinions that exist in their societies.’

The ‘hunch’ or ‘gut feeling’ pointed out by Judge Hutcheson does not pose any problem in the present day world. It is now well recognized that starting point of every judicial decision is ‘hunch’ or ‘intuition’. Modern jurists say that that is the way to be, if a proper decision is ultimately to be arrived at. According to them ‘Judges generally make intuitive decisions but sometimes override their intuition with deliberation’. They call it "intuitive-override”. The model is “realist” in the sense that it recognizes the important role of the judicial hunch and “formalist” in the sense that it recognizes the importance of deliberation in constraining the inevitable, but often undesirable, influence of intuition¹².

Whether or not pursuit of ‘absolute truth’ is within the reach of courts is beside the point. What is important is that in every case brought before the court, there is a legally correct answer and that is what ‘rule of law’ provides for. That gives certainty to the judicial process and uniformity in decision making. Whether ‘absolute truth’ is within the pursuit of a Judge is not a problem posed by Section 3 of the Evidence Act, which defines ‘proved’, ‘disproved’ and ‘not proved’. What the Section concerned is only with the right answer. The definition of ‘proved’ in Section 3 of Evidence Act has two limbs. A fact is proved when ‘after considering the matters before it, the Court believes it to exists’ or ‘considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists’. The first limb talks about the belief of the court that a fact exists based on the matters before it. The second limb enables the court to find out if the circumstances proved in case points to the probability of existence of a fact so much so that a prudent man ought to act upon the supposition that it exists. In other words, in the second situation in order to find that a fact exists, the court should be satisfied that the existence of the fact is so probable having regard to the circumstances proved that a prudent man would act upon the supposition that it exists. If the material before the court is sufficient for the court to believe the existence of a fact, the court would enter a finding that the fact is proved. The second situation would then will not arise. If the material placed before the court did not lead to a belief that the fact exists, the court has to consider if there are circumstances in the case which would make a prudent man to act upon the supposition that it exists and if so will enter into a finding that the fact is proved. Obviously, the two contingencies enumerated in the section are to operate in two different situations. One deals with direct satisfaction of the court on the matters before it. The second contingency arises only when circumstances are proved which would lead to the probability of existence of the fact sought to be proved. Will a prudent man act on the supposition that the fact exists is again satisfaction of the court and not the satisfaction of the prudent man. The Section does not admit of any ambiguity. A prudent man is a reasonably educated and intelligent but non-specialist person. A Judge is a specialist person and not, in relation to, judicial decision making a mere prudent or reasonable man. The prudent man principle is only a standard fixed for arriving at the probable existence of the fact sought to be proved. ‘Preponderance of probability’ and ‘proof beyond reasonable doubt’ are only judicial tools evolved by the courts to measure the judicial standard of probability mentioned in the second limb of the definition ‘proved’ for arriving at the prevalence of the supposition of the prudent man that the fact exists. To say that the second limb is superfluous and is explanatory to the first limb of the definition is to do violence to the provision and as Lord Denning said ‘to pull the language of the Parliament to pieces and make nonsense of it’. That will not be in accord with the basic principles of interpretation of statute that the court as far as possible should not attribute redundancy to the words of Parliament. The dispute as to Judge or jury is also beside the point. Jury of course is not a specialized person and in that sense is a prudent man or a ‘Man on the Calpham Omni Bus’ being a reasonably educated or well informed person. But the role of a court and a jury in the matter of fact finding is same. There is no indication in the definition of ‘proved’ in Section 3 of the Evidence Act as to any marked difference between the Court as a fact finder and a Jury as a fact finder. Legislative intention, having regard to the interpretation of an ongoing statute which Evidence Act definitely is, or the legislative history of the Evidence Act, also does not point to any statutory recognition as to the difference between a Court and a jury in the manner of fact finding.

In conclusion it has to be said that in most of the routine and easy cases which are brought to the court and in which there is always a correct and only one correct answer, pursuit of truth is not a difficult task for the court. The problem arises only in hard cases where there are more than two alternatives and both are legal, in which case also there is always a correct answer and finding of correct answer and finding of truth by the court in such cases depends largely on the exercise of judicial discretion in its correct perspective. In none of the category of cases pursuit of truth and finding of truth is an impossibility for the court.

FOOTNOTES

* Richard A Posner: How Judges Think (Richard A Posner is Circuit Judge of United States Court of Appeal for the Seventh Circuit and is also Senior Lecturer in University of Chicago Law School.).

1. Julius Stone: Legal System and Lawyers Reasoning.

2. Benjamin N Cardozo : The Nature of Judicial Process.

3. Benjamin N Cardozo: The Growth of Law.

4. Jerome Frank : The Law and Modern Mind (1930).

5. Joseph C. Hutcheson, Jr., The Judgment Intuitive: The Function of the “Hunch” in Judicial Decision, 14 CORNELL L.Q. 274, 285 (1929).

6. Daniel Goleman : Emotional Intelligence.

7. Dylan Evans: Emotions the Science of Sentiment.

8. Jeffrey S.Sutton; A Review of Richard A Posner, How Judges Think (2008): Michigan Law Review (Vol. 108:859).

9. Ronald Dworkin : Taking Rights Seriously.

10. Aharon Barak: Judicial Discretion (1989)

11. Aharon Barak: The Judge in a Democracy (2006).

12. Chris Guthrie Jeffrey J. Rachlinski & Andrew J. Wistric: Blinking on the Bench: How Judges Decide Cases: Cornell Law Review Vol. XIII 2007.

Co-operative Society -- Is it A Public Authority? Decision of Delhi High Court -- A New Dimension

By R. Muralidharan (Deputy Registrar (Planning & Legal), Co-operative Department, Puducherry

15/11/2010

Co-operative Society -- Is it A Public Authority?
Decision of Delhi High Court -- A New Dimension

(By R.Muralidharan, Deputy Registrar (Legal), Co-op.Department, Puducherry)

“In the context of the working of multi-State co-operative societies, which by their very nature facilitate participatory decision-making through a network of elected bodies at different levels, the opening up of their working to public scrutiny through the R.T.I. Act can only be in their best interests. Instead of shying away from the R.T.I. Act, large multi-State co-operative societies like KRIBHCO, NCCF and NAFED should view it as an opportunity.”

Hon’ble Justice S. Muralidhar

The question whether the co-operative society is a public authority under the Right to Information Act, 2005 continues to engage the High Courts and Information Commissions in as much as the query whether the co-operative society is amenable to writ jurisdiction under Art.226 of the Constitution of India. In neither case an acceptable decision is just eluding and the various decisions on these subjects are true in the facts and circumstances of the particular cases.

The intriguing question before the Delhi High Court in Krishak Bharati Co-operative Ltd. & Ors. v. Ramesh Chander Bawa & Ors. (2010 (2) ID 1) was whether the Krishak Bharti Co-operative Ltd. (KRIBHCO), the National Co-operative Consumers Federation (NCCF) and the National Agricultural Co-operative Federation Ltd., (NAFED), each is a society deemed to be registered under the Multi-State Co-operative Societies Act, 2002 (MSCS Act) are public authorities under S.2(h) of the Right to Information Act. Though this is not for the first time such question came up decision before any High Court, the way in which this was approached by the Delhi High Court makes the decision a treasure on this subject. The Karnataka High Court in Dattaprasad Co-operative Housing Society Ltd. v. Karnataka State Chief Information Commissioner & Anr. (AIR 2009 Kant 1 : 2009 (1) ID 323);Bidar v. Karnataka Information Commissioner & Ors. (2009 (1) ID 138) : AIR 2009 (NOC) 1049; Kant and Public Information Officer & Secretary, Abrimad Raghavendra Co-operative Housing Society v. Karnataka State Information Commission & Anr. (W.P. No.17889/2007 dated 25th February, 2009)and the Bombay High Court in Dr. Panjabrao Deshmukh Urban Co-operative Bank Ltd. v. The State Information Commission & Ors.(AIR 2009 Bom. 75) addressed this issue in a different aspect and held that co-operative societies do not answer the mandate of Section 2(h) and is not a public authority. These decisions, in my considered view, have not gone into the matter in depth. The Kerala High Court’s decisions in Thalapalam Service Co-operative Bank Ltd. v. Union of India & Ors. (2009 (2) KLT 507) and Thalapalam Service Co-operative Bank Ltd. v. Union of India (2009 (3) KLT 1001 (D.B.) are really exhaustive and throw light on different aspects of the R.T.I. Act vis-à-vis the Kerala Co-operative Societies Act. But the judgment in Krishak Bharati Co-operative Ltd. & Ors. (supra)is certainly a cut above the ordinary and a class by itself. The approach is laudable and erudite. This article brings the salient features of the judgment and highlights the new dimensions on the subject. The appropriate headings used in the Judgment are incorporated in this article for better appreciation.

The initial attempt by most organizations and entities is to avoid the obligations under the R.T.I. Act. Since the culture of transparency has not fully set in, and old habits die hard,
there is a resistance on the part of institutions and entities to avoid being declared a ‘public authority’. So it is with the three petitioners, KRIBHCO, NCCF and NAFED (Paragraph 8).

Reading Section 2(h)

None of these entities is a body that answers the description of being established or constituted under a Constitution, or by a law made by the Parliament or by the State Legislature. The question that next arises is, if any of them is a body established or constituted “by notification issued or order made by the appropriate Government” in terms of S.2 (h) (d) of the R.T.I. Act. The answer would be in negative. That leaves with the remaining limb of S.2 (h) (d) which is conjoined with the main provision by the words “and includes”. What requires to be examined is whether each of these entities is, in terms of S.2 (h) (d) (i), a body owned, controlled, or substantially financed by the appropriate Government, or in terms of S.2 (h) (d) (ii), a non-Government organization substantially financed directly or indirectly by funds provided by the appropriate Government?

Implication of “includes”

The word “includes” is generally understood in statutory interpretation as enlarging the meaning the words or phrases in the body of the statute. The learned Judge noticed that S.2 (h) (d) (i) and (ii) have not been happily worded. The provision has added to the confusion rather than clarifying the position. Perhaps an appropriate manner of reading the said provision would be to ask:

(i) Is the entity in question a body owned by the appropriate Government? or controlled by the appropriate Government? or substantially financed by the appropriate Government? or

(ii) Is the entity a non-Government organization substantially financed directly or indirectly by funds provided by the appropriate Government?

“Controlled”

The expressions “controlled” or “substantially financed” have not been defined. In order to understand whether a body is “controlled” by the appropriate Government one would have to examine its organizational structure, its bye-laws and memorandum and articles of association, if any, and the statutory provisions which envisage control over such bodies by the appropriate Government. For the limited purpose of understanding the word “controlled”, an examination is also to be undertaken of the pattern of shareholding or any other form of control of such bodies by the appropriate Government. It is in this last context that the provisions of the MSCS Act are relevant.

In the context of the R.T.I. Act it may well be that a body which is neither a “State” for the purposes of Art.12 nor a body discharging public functions for the purpose of Art.226 of the Constitution might still be a ‘public authority’ within the meaning of S.2 (h) (d) (i) of the R.T.I. Act. To state it differently, while a ‘body’ which is either a ‘State’ for the purposes of Art.12 or a ‘body’ discharging public functions for the purpose of Art.226 is likely to answer the description of ‘public authority’ in terms of S.2 (h) (d) (i) of the R.T.I. Act, the mere fact that such body is neither, will not take it out of the definition of ‘public authority’ under S.2 (h) (d) (i) of the R.T.I. Act. To explain further, it will be noticed that in all the decisions concerning the interpretation of the word ‘state’ under Art.12 the test evolved is that of “deep and pervasive” control whereas in the context of the R.T.I Act there are no such qualifying adjectives “deep” and “pervasive” vis-à-vis the word “controlled.” Since S.2 (h) (d) (i) R.T.I. Act uses the word “controlled” without any qualification as to the degree of control, it is not to enough show that there is “no deep or pervasive control” over these entities by the appropriate Government. The question is not whether there is “deep” control, whether there is “dominance” by the appropriate Government or whether the Government’s nominee directors are in ‘majority’. If they are, no doubt, it would indicate that the entity is a ‘public authority’ but if they are not, that does not mean that the entity is on that ground not a public authority for the purposes of the R.T.I. Act. What may be a ‘public authority’ for the purposes of the R.T.I. Act need not be ‘State’ under Art.12 or amenable to Art.226 of the Constitution. It is the context of transparency and accountability, of accessibility of its working to the public that controls the interpretation of the expression ‘public authority’, not the amenability to judicial review of its decisions. If one asks the wrong question in the context of the R.T.I. Act one is unlikely to get the right answer. In the present cases, the petitioners would have to show that there was or is no control or there is unlikely to be any control whatsoever over their affairs by the appropriate Government if they want to escape the definition of ‘public authority’ under the R.T.I. Act.

The key words as far as the R.T.I. Act is concerned are the opening words of S.2 which read: “unless the context otherwise requires”. Therefore, the interpretation of the words “public authority” has to be in the context that has been laid out in the Statement of Objects and Reasons, the preamble, the long title and other provisions of the R.T.I. Act itself. The question is not whether there is “deep” and “pervasive” control of the bodies in question by the appropriate Government, but whether there is the absence of any “control” over such bodies by the appropriate Government.

“Substantially financed”

The word ‘substantial’ does not necessarily connote majority financing. Merely because percentage-wise the financing does not constitute a majority of the total finances of that entity will not mean the financing is not substantial. The word ‘substantial’ is not synonymous with ‘dominant’ or ‘majority’. It is closer to ‘material’ or ‘important’ or ‘of considerable value’. ‘Substantially’ is closer to ‘essentially’. Both the words can signify varying degree depending on the context.

To drive home this point, profitable references were from the decisions of Delhi High Court in Indian Olympic Association v. Meeresh Malik (W.P. No.876/2007 dated 7th January 2010), Diamond Jubilee Higher Secondary School v. Union of India (2007) 3 MLJ 77 :2009 (1) ID 102 (Madras High Court), DAV College Trust and Management Society v. Director of Public Instruction (AIR 2008 P&H 117) : 2008 (2) ID 382),Dhara Singh Girls High School v. State of Uttar Pradesh (AIR 2008 All 92 : (2008 (2) ID 179) , Committee of Management, Shanti Niketan Inter College v. State of Uttar Pradesh(AIR 2009 All 7 : 2009 (1) ID 223),Tamil Nadu Road Development Co. Ltd. v. Tamil Nadu Information Commission (2008-3-LW-904 : (2008) 6 MLJ 737 :2009 (1) ID 85)(Madras High Court) and R. Anbazhagan v. State Information Commission (2008) 5 MLJ 200 : 2009 (1) ID 7 (Madras High Court).

The contrary view found in Dattaprasad Co-operative Housing Society Ltd. v. Karnataka Chief Information Commissioner & Ors. (cited above)was distinguished on the ground that the said judgment did not examine the concerned statute under which the society was registered to determine if there was any control over the society by the Government.

Therefore for the purposes of S.2 (h) (d) (i) for determining whether there is ‘control’ over the entity or there is ‘substantial financing’ of such entity by the appropriate Government the approach should not be to ask if there is ‘predominant’ or ‘majority’ control or financing by the appropriate Government. The financing may not be a majority one and yet be ‘substantial’. The shareholding or the membership of the nominee directors on the board may not be in themajority and yet there may be 'control’. The provisions of the statute under which the entity is registered have also to be examined for this purpose. One other aspect that needs to be mentioned is that the 'control’ or 'substantial financing’ need not necessarily be in presenti. An entity had in the past been controlled or substantially financed by the appropriate Government, and has ceased to be so at present, need not cease to be a 'public authority’ as long as the potential for being so controlled or substantially financed in future exists. Also, once an entity has been established or substantially financed by the appropriate Government at any point in time it acquires the tag of a 'public authority’ for the purposes of the R.T.I. Act.

The MSCS Act vis-a-vis VIS KRIBHCO, NCCF & NAFED

The Court was listing out through various provisions of the MSCS Act. The Central Government or the State Government exercise control over the multi-State co-operative societies. It is significant that Government of India’s paid-up share capital in KRIBHCO in monetary terms was Rs.268 crores as on 31st March, 2007. It was reduced to Rs.188.90 crores subsequently. Investing in share capital is a known means of financing an entity. A sum of Rs.189 crores, cannot be said to be insubstantial financing. A shareholding of 48.36% cannot mean that Government has no ‘control’ over KRIBHCO. ‘Substantial’ financing does not have to mean ‘majority’ or ‘dominant’ financing. A ‘controlling’ interest through shareholding does not necessarily mean ‘majority’ shareholding. As regards ‘controlled’, it is significant that the Registrar of the MSCS is an officer appointed by the Central Government. Direct or indirect control over the affairs of an MSCS like KRIBHCO is possible even through the nominee directors of the Central Government. The nominee directors may not constitute a majority of the board of directors. However, they could well influence, directly or indirectly control its decisions. In the meeting of the board of directors, even if some members are in a minority, they may still be able to persuade the others to agree to their point of view. On a case by case, it is very difficult to say that three among 21 members of a board do not or cannot exercise control over its decisions. There is a mistake in assuming that word ‘control’ has to mean majority control. There can be a control by a minority as well. The controlling interest need not be numerically in the majority.

Regarding NCCF, the Court was unable to accept the submission that because the Government does not hold a majority of the shares or that its nominees do not constitute a majority of the board of directors, there is no control over the NCCF by the appropriate Government. Even as regards financing, the financing through the holding of shares cannot be said to be insubstantial. The total paid up capital is Rs.13.79 crores in which the contribution of Government of India is Rs.10.74 crores. NCCF provides technical guidance to its constituent members to sub-serve the interests of consumer co-operation movement in India. On a conspectus of the above factors, the Court was unable to find any error in the conclusion of the CIC that NCCF is a public authority within the meaning of S.2 (h) of the R.T.I. Act.

As far as NAFED is concerned, it is a nodal agency of the Government of India for the purchase of agricultural and non-agricultural commodities (not covered under Price Support System) under Market Intervention Scheme and the losses incurred in the implementation of the schemes by NAFED are shared by the Government of India and the State Government concerned in the ratio of 50:50. The Market Intervention Schemes affect a large number of farmers all over the country. It has bearing on the vast market of agricultural commodities. It affects the way the agricultural commodities market behaves. NAFED plays a central role in this context. The cumulative effect of these factors goes to show that there is control over the activities of NAFED by the Central Government. Further, even if at a given point in time thereis no tangible, visible control, the structure of an MSCS like NAFED is such that it is always amenable to Government control. This is what is relevant for the purpose of the definition of ‘public authority’ under S.2 (h) of the R.T.I. Act.

Epilogue

The Court upheld the decision of the CIC is holding that these three societies fall within the four corners of ‘public authority’ and dismissed the Writ Petitions with cost. What is said by way of epilogue brings out the real concern of the Court for the masses. Kindly read on these passages.

Waiting for little bits of information to percolate to them on urea prices, fertilizer stocks and their movements, the market position and availability of agricultural commodities are millions of farmers all over the country, some of whom may be members of the myriad co-operative societies that in an indirect manner participate in the functioning of multi-state co-operative societies like KRIBHCO, NCCF and NAFED. The information held by these entities is relevant not just to the farmers but millions of workers on land and traders in the agricultural commodities sector. The information held by these entities is also vital to the lives and livelihoods of millions of ‘little’ persons that look to the sky every morning to hope that they will be able to survive the day. Then there are those who are interested in how the various schemes that are to be implemented through the multi-State co-operative societies are in fact being implemented. Are the monies well spent? Are the schemes benefiting those whom it should? And so on. This information too is held by these three and other multi State co-operative societies.

“At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper - no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.” – Justice V.R. Krishna Iyer inMohinder Singh Gill v. The Chief Election Commissioner (1978) 1 SCC 405)quoting from Winston Churchil.

Just as the right to vote of the ‘little’ citizen is of profound significance in a democracy, so is the right to information. It is another small but potent key in the hands of India’s ‘little’ people that can ‘unlock’ and lay bare the internal workings of public authorities whose decisions affect their daily lives in myriad unknown ways. What was said of the working of a Government in a democracy in S.P.Gupta v. Union of India ((1981) Supp. SCC 87)should hold good for the working of a multi-State co-operative society too. The Court there said: “In a Government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries.”

My Word

Co-operative societies, where democracy is the watch word, should be proactive and should willingly provide information under the Act, rather than try to wriggle out on technicalities. The societies are looked upon as limbs of the Government and so much of funds are pumped in for the development of co-operatives every year. They should show the world that they are accountable, responsive and responsible. There could be no better answer to the little man, the tax payer. They owe a response, nay a duty, to him.

Some Belated Thoughts on Kerala Joint Hindu Family (System) Abolition Act !

By K.G. Balasubramanian, Advocate, High Court of Kerala

15/11/2010

Some Belated Thoughts on Kerala Joint

Hindu Family (System) Abolition Act !

(By K.G. Balasubramanian, Advocate, High Court of Kerala)

It is unfair, quite unfair, I feel, as a lawyer, as a minuscule member of “We, The People”. I had felt that gender equality was serious business in Hindu law, that social equality was more serious business in Indian polity. I feel let down, because the 2005 amendment to Hindu Succession Act (HSA) raises more questions. For example, if you can create mixed coparcenaries from hitherto exclusively male coparcenaries, should you not also have coparcenaries as regards property hitherto inherited from a common ancestress?

I had propounded, some time back, that coparcenary stood revived in God’s own country because of the amendment to S. 6 H.S.A.

Section 4 H.S.A.: Overriding effect of Act:

(1) Save as otherwise expressly provided in this Act-

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus so far as it is inconsistent with any of the provisions contained in this Act.

New Section 6: Devolution of interest in coparcenary property:

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition. (Sub-sections 3, 4, omitted for the present)

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation: For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.

Kerala Joint Hindu Family System (Abolition) Act, 1976 (Abolition Act):

Section 3: Birth in family not to give rise to rights in property:

On and after the commencement of this Act, no right to claim any interest in any property of an ancestor during his or her life-time which is founded on the mere fact that the claimant was born in the family of the ancestor shall be recognised in any court.

Section 4: Joint tenancy to be replaced by tenancy in common:

(1) All members of an undivided Hindu family governed by the Mitakshara law holding any coparcenary property on the day this Act comes into force shall with effect from that day, be deemed to hold it as tenants-in-common as if a partition had taken place among all the members of that undivided Hindu family as respects such property and as if each one of them is holding his or her share separately as full owner thereof:

(Proviso omitted, for the present)

(2) All members of a joint Hindu family, other than an undivided Hindu family referred to in sub-section (1), holding any joint family property on the day this Act comes into force, shall, with effect from that day be deemed to hold it as tenants-in-common, as if a partition of such property per capita had taken place among all the members of the family living on the day aforesaid, whether such members were entitled to claim such partition or not under the law applicable to them, and as if each one of the members is holding his or her share separately as full owner thereof.

Mind you, the new Section 6 H.S.A. may not take in a partition by operation of law, like the one imposed by Section 4 Abolition Act.

The larger question is, whether new Section 6 upsets the scheme of the Abolition Act, a scheme we have hitherto almost unanimously accepted. The point I moot is that the Abolition Act does not really efface coparcenary or marumakkathayam system, but only temporarily arrests enforcement of those rights.

The Law Commission, being aware of the situation in Kerala and some other States, opined that:“The subject matter of the laws of succession fall in Entry 5 of the Concurrent List of the Seventh Schedule to the Constitution. Therefore, Parliament as well as the State Legislatures are competent to enact laws in this area. In case another State brings some third model of legislation in this field, there is a likelihood of having still more diversity in the law. This would result in the directive principles of State policy not being adhered to which require the State to endeavour to secure a uniform civil code throughout the territory of India. If we cannot have that for the present we should at least haveuniformity amongst Hindus. Accordingly, there is need to have a central law enacted by Parliament under Article 246 of the Constitution. In such a situation the law made by these five States would stand repealed to the extent of repugnancy, unless expressly repealed”.

It was laid down in 1984 KLT 685 that “the provisions of Kerala Act 30 of 1975 are clear. The Act is enacted to put an end to the joint Hindu family in Kerala and the consequence is that from that date onwards there will be no joint Hindu family in the State. ——————. If by force of the statutory enactment there will be no joint Hindu family in the State from 1.12.1976,it follows that there can be no entity assessable as Hindu undivided family ——————."

In 1988(1) KLT 814 it was declared that “Thus by operation of law the property held by an individual member on and after 1.12.1976 has lost its character of ancestral property and that character cannot be revived as no undivided family could come into existence or revive within the State where the System has been statutorily put an end to”.

In 1993 (1) KLT 174, it is observed that “Section 3 abolishes the right by birth in the joint family, while Section (4) replaces tenancy in common in respect of joint tenancy rights of the members of the undivided Hindu family with effect from the day of commencement of the Act” and that “———— the statutory laws mentioned in the Schedule to the Joint Family Abolition Act, 1975 stood repealed. So far as the pristine law which was not covered by those Acts is concerned, it stood repealed by S.7 (1) to the extent provision is made in the Joint Family Abolition Act, 1975. Of course, once all this is gone, almost nothing is left under the pristine marumakkathayam law ————”.

In 1998(1) KLT 634, it was held that “The preamble of the Act itself would show that the main object sought to be achieved by the statute isabolishing of the joint family system among Hindus in the State of Kerala. S. 3 provides that on and after the commencement of the Actno one is to get any right in property by the mere fact of his birth in the family of the ancestor”.

According to me, with due respect, the Abolition Act deserves a different look. True, going by its title, the Abolition Act was enacted to put an end to joint Hindu family system. That intention, which I feel is not reflected in the statute, was readily accepted.

While interpreting statutes, one cannot overlook the law reiterated by the Apex Court in AIR 2004 SC 3625 that “In case of conflict between the plain language of the provision and the meaning of the Heading or Title, the Heading or Title would not control the meaning which is clearly and plainly discernible from the language of the provision thereunder”.

It is relevant to note that some of the repealed enactments restrained partition during lifetime of ancestor/ancestress. (Section 34 Travancore Nair Act, Section 35 Madras Aliyasanthana Act, Section 34 Travancore Krishnavaka Marumakkathayees Act, Section 43 Cochin Marumakkathayam Act, Section 29 Travancore Ezhava Act). At the same time, Travancore Nair Act, Kshathriya Act, Cochin Nair Act & Krishnavaka Marumakkathayees Act obliged a female member to claim and take her minor children’s shares also during partition. These enactments were axed by the Abolition Act. Interestingly, the Abolition Act does not - no, it does not - say that joint family system is abolished, in ever so many words. The title of the Act and heading to Section 3 are deceptive, because neither the title to an enactment nor a heading to a section therein can furnish what the body of the enactment does not provide for. And it was almost unanimously accepted that joint family system has been put to rest.

I would dissect Section 3 Abolition Act as under:

Birth in family not to give rise to rights in property:

i) On and after the commencement of this Act,

ii) no right to claim any interest in any property of an ancestor,

iii) during his or her lifetime,

iv) which is founded on the mere fact that the claimant was born in the family of the ancestor,

v) shall be recognised in any court.

It is only on situations (i) to (iv) coalescing, on facts, that the bar under (v) comes into play. Plainly understood, the bar is only on courts to recognise a right to claim partition during the lifetime of an ancestor. Of course, after the lifetime of an ancestor, the matter will be governed by H.S.A. Here, one has to note also that the bar is only on descendants, not ascendants. In other words, the bar applies only to a suit by a son, grandson and great grandson in the case of Mitakshara partition and to a suit by a daughter, granddaughter, great granddaughter and so on in the case of marumakkathayam partition. It cannot apply to a suit by the grandfather against those three persons or to a suit by a grandmother against her daughter, granddaughter, great granddaughter and so on. I wonder whether any such litigious soul survives now!

Section 3 does not contain what the heading thereto predicates. Though the heading speaks of the situation “Birth in family not to give rise to rights in property”, the section does not speak of that at all. On the contrary, the section only reproduces, in part, certain sections in some of the repealed enactments. Section 4 speaks only of division in status. The 2 sections do not prohibit, in any manner, to my notice, accrual of right by birth or practice of Mitakshara or Marumakkathayam principles. Section 3 only reiterates an age old restriction on recognition by court of a right to claim any interest in property of an ancestor during his or her lifetime.

This leads to an incongruous situation. A family can be joint anywhere else in the country. The moment it settles down in God’s own country, they are divided. How does the law operate in the matter of their ancestral properties situated in Kerala and say, Tamil Nadu? Divided in Kerala, united in Tamil Nadu? That is against the concept of federalism.

Take another situation. The property obtained by a member in a Section 4 situation cannot be said to be his/her self acquisition. The phraseology “as if each one of the members is holding his or her share separately as full owner thereof” cannot be understood to mean that such property cannot be ancestral property at all times. True, it confers full ownership on the share identified by it. Incidents of ancestral property are not taken away. Mitakshara recognises the principle of sole surviving coparcener and a coparcenary springing into existence on the birth of a male member to that sole surviving coparcener. (AIR 1953 SC 495) holds the field, whereby “—— the son can assert this equal right with the father only when the grandfather’s property has devolved upon his father and has become ancestral property in his hands. The property of the grandfather can normally vest in the father as ancestral property and when the father inherits such property on the death of the grandfather or receives it, by partition, made by the grandfather himself during his life-time. On both these occasions the grandfather’s property comes to the father by virtue of the latter’s legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands. ——————— To find out whether a property is or is not ancestral in the hands of a particular person, not merely the relationship between the original and the present holder but the mode of transmission also must be looked to; and the property can ordinarily be reckoned as ancestral only if the present holder has got it by virtue of his being a son or descendant of the original owner”. Likewise, Marumakkathayam law - 1967 KLT 430. In so far as Sections 3 and 4 do not abolish right by birth, it cannot be said that a coparcenary or thavazhi cannot come into being after 1.12.1976. All the more so now, in the situation generated by new Section 6 H.S.A., which applies to the whole of India.

Well, I say that Abolition Act does not prohibit the practice and observance of various schools of Hindu law. Article 19 guarantees freedom of religion and its practice. Nothing prevents a family from being joint in estate and worship, a concept basic in Hindu law. What can be said of Section 3 Abolition Act, at best or worst, is that a court will not recognize a claim only for partition of right, at the instance of a descendant coparcener, on the basis of mere fact of birth in a joint family holding ancestral property as on 1.12.1976. Doubtless, a coparcenary springs into existence only because of birth. Is there any other form for formation of a coparcenary? Use of the word mere appears, to me, to be more for form than for sense. I am at a loss to understand the public interest warranting enactment of the Abolition Act, as distinguished from public interest compelling other States to follow a diametrically opposite track, now followed by the Parliament.

The scope of repeal u/S.7 is “any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act”. The Act does not, but for misconstrued Section 3, provide for cessation of right by birth. Granted, Section 4 devastates joint family system; but for that operation to be prospective, Section 3 ought to have been more lucid and specific, somewhat like “No claim, suit, action or defence shall lie in any court to enforce a right to or in any ancestral property on and after the commence- ment of this Act”. As of now, the section does not abolish, except by imagined reasons, assum- ptions and misinterpretation, the concept of right by birth. Is it not quite right to contend that repeal under Section 7 does not have the effect of effacing Mitakshara, Marumakkathayam etc?

We have to bear in mind that the repealed enactments did not, by themselves, create the concept of right by birth. The concept of right by birth goes back centuries beyond legislation thereon. That concept was the very basis and essence, if not the artery, of various schools of Hindu law. These enactments provided for marriage, maintenance, management and partition of joint family property, succession etc. They did not herald the principle of right by birth, they only affirmed it, as an indefeasible attribute of community living, modulated by regional changes. Section 3, though intended to do away with that principle, stopped short and instead of abolishing right by birth, rested happy with enjoining courts from recognizing that right during the life time of the ancestor. In other words, Section 3 contains nothing new, it conveys nothing new and it annuls not the old school. It is only old wine in new bottle. That section is inconsequential. It neither creates a new right nor denies an old right. Section 4 is, for all intent, effect and effort, good only for one day, 1.12.1976. Not for a day thereafter. It is limited only to disintegration of joint families holding joint family property as on 1.12.1976. It cannot apply to joint families and joint family property coming into being after that date.

The Abolition Act falls, in my opinion, in the rare category of spent statutes, efficacious only in annulling the then scenario. It does not prohibit, either explicitly or by necessary implication, right by birth and/or formation of joint families.

I am reminded of Lord Denning’s famous dislike for “intention seekers”. Without seeking intention, it can be seen that new Section 6 H.S.A. regenerates what Abolition Act is said to have degenerated, if really Section 3 had the effect of destroying coparcenaries and tharwads.

Should we not ask the poltergeist of abolition to disappear? To get ablution, like Pilate!

Lording the God

By T.P. Kelu Nambiar, Sr. Advocate, High Court, Ernakulam

25/10/2010

Lording the God !

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

According to Dr.Arthur I Brown, man is ‘wonderfully made’ by God, and the human body is ‘God’s Masterpiece’; God creates a perfect man by forethought, but, sometimes, by oversight, an imperfect man is created. God is Great. There is no lord over God. Man cannot party with God. No court has jurisdiction over God. The ‘Constitution and the laws’ are not applicable to God. God needs nobody’s protection.

Some lawyer-friends asked me: ‘Does any court possess the power or jurisdiction to suggest that Lord Ayyappa be pulled out of His abode (the sanctum sanctorum) to give ‘darshan’ to the devotees at an open place as a method of crowd control in the temple premises; or, that branches be opened of Sree Guruvayurappan Temple for the convenience of devotees; or, that the sanctum sanctorum be rebuilt as a spacious room for a clear distant view of the idol by the devotees; or, that the ‘Eighteen Steps’ at Sree Sabarimala be widened to avoid crowding’. The question itself smelt sacrilegious, and I said: ‘Please spare the God, in whose name judges have sworn. I shall answer after study’. I thought I should not rebuff the suggestion by dancing words.

I gathered the gems from the Sastras, the Puranas, the Vedas and the great sayings of Saints, especially Thiruvalluvar, Thirunavukkarasar and Thiruneelakandar, from Avvaiyar’s lyrics, and from ‘The Hindu’ ‘Religion’ Columns, of which I have a collection, by reading, and by consulting persons learned in the subjects. I also consulted Law Books, like the Hindu Law of Religious and Charitable Trusts by Justice B.K.Mukherjea, the Law of Hindu Religious and Charitable Endowments by V.K.Varadachari, Tudor on Charities, Snell’s Principles of Equity, and reported decisions, like C.K.Rajan, Manohar Ganesh, Seetharama Chetty etc.; I further went through the relevant statutory provisions in the Hindu Religious and Charitable Endowments Act, the Guruvayur Devaswom Act etc. The principle gathered is that courts have got inherent power to initiate action, probe into the matter and set right the abuses by a remedial action in the case of charitable and religious trusts or deities as guardian of such juridical entities. This is the only power. The power is only to protect property, not to interfere with the ways of God. No court has power to prescribe the routine of God. No court has power to tell how God should behave; how God should conduct Himself; how God should give ‘darshan’ to His devotees. The Mithakshara and Yagnavalkya spoke of management control of temple trusts and endowments, not God control. The jurisdiction is over religious and charitable institutions, not over the Supreme God. A judge renders decision in a dispute between contesting parties. God is not a contesting party to any dispute before any court. He holds His own court. There is no court above His court.

The idol of God is not a mobile unit. No collateral damage should be done to God’s idols. Do not fix a revolving door to the sanctum sanctorum. A Hindu Temple is not a Vietnam Shrine. The sanctum sanctorum is not a museum, to be ordered to be renovated/rebuilt by the visveswaraya engineering skill for ‘darshan’ luxury. Conduct rules cannot be prescribed for God. The Guardians and Wards Act is not applicable to God. God creates man, not his job.

I am a believer in God. I fear God, and, next to God, I chiefly fear Him, who fears Him not. I believe Joseph Cook, when he said: “There is a God in science, a God in history, and a God in conscience; and these are one”. I would like to add: “There is a God in justice”. Judiciary has no religion, caste or creed.

For the present purpose, I have not thought it necessary to consider the aspect of the world being populated with many Gods, or the views of John Calvin and Karl Barth.

Disagreeing agreeably with the suggestion, I communicated the above aspects to my learned friends, as promised. I requested them to ponder over a situation where a person attempts to cut a tree with a nail cutter. I am awaiting their reaction, And yours, too.

Tail-piece : “The nature of God is a circle, of which the centre is everywhere and the circumference nowhere”.

Anonymous.

Shri V.G. Govindan Nair -- In Memoriam

By Jayakrishnan D., Advocate, Thiruvananthapuram

25/10/2010

Shri V.G. Govindan Nair -- In Memoriam

(By Jayakrishnan D., Advocate, Vanchiyoor, Thiruvananthapuram)

There is a certain uniqueness to the first and last. And I had the uniqueness and fortune to be the junior most junior to Sri.V.G.Govindan Nair. And that is something I will treasure all my life. He was the one who initiated me into advocacy, encouraged me, forgave my mistakes and guided me in the profession. And even now he inspires me.

When he died on June 15, 2010, many newspapers and other media showered glowing tributes on his professional achievements. My endeavour however is to reminisce the short but blessed time I spent in my erstwhile senior’s presence during the time he was in his office at Vanchiyoor before he left for Kochi on his appointment as the Director General of Prosecutions, Kerala.

His Chambers, His Life and His Legacy

I always remember V.G. Sir (as he was fondly called by almost everyone) with a smiling face. Yes indeed he was always smiling. It is a very very rare quality. He was always pleasant and welcomed all and everyone into his presence. And I do not think that anyone ever felt awkward when they were with him. He made everyone comfortable. And he enlightened everyone. He had a unique charm and charisma. Wherever he went he was the centre of attraction. People gathered around him to listen to him. And he, with his clear logic sharpened by long experience and intensive study, piercing insight and a smooth voice made the listening worthwhile.

One of the first things I learnt in his chambers was that time spent with V.G. Sir was never wasted. Because he lived and breathed the law. Initially I used to wonder, does not Sir have a normal life beyond the law? Gradually my doubt cleared. And the truth sank in. Yes, V.G. Sir did not have any other life, but the life of the law. I remember long days, when he used to sit in his office and discuss legal questions late into the night. It was always interesting. But the truth be told; I in my twenties could not keep up with the enthusiasm that V.G. Sir showed towards law in his seventies. But that is the precise reason that he remains and will continue to remain an inspiration to me.

His life was an example. And the example he set was one of absolute professionalism. He was from head to toe an absolute professional. He was always concerned about the latest positions of the law as declared by the higher Courts. I remember that he was always keen that he stayed up to date. One clear instance I remember was in my first year in his chambers. He had raised a doubt regarding some aspect of bail and he posed the question to all the advocates in his chambers. I too among others looked up some journals, commentaries and stuff. But we did not find the answer. When it was time for lunch everyone including myself concentrated on the needs of the body. But Sir stayed in his room. And he found the answer. Only then did he leave for his lunch. I think he left for lunch by around 3 p.m. that day. And I also recollect that I felt a little ashamed that I had given up and concentrated on other matters when V.G. Sir had the tenacity to clear that legal question all on his own. But that was his mettle.

That was not the only instance of his tenacity. He always exuded a confidence that even if no other junior was around to help him, he will push the work through. Though he liked assistance from the advocates in his chambers, I do not think anyone ever had any doubt that Sir would leave the preparation of any case to his juniors alone. In every case without fail he was more prepared. He would see more questions than the other advocates in his office who had gone through the very same file. And he was prepared for those questions, with logical and legal answers.

So also V.G. Sir gave his everything to every case. Even when things did not work out at the Trial Court level and went to the Appellate Courts, he used to keep tabs on the developments. And he was always concerned that the point he saw and raised in the case, though not appreciated in the lower Courts would not miss the eye of the appellate ones. He was genuinely disappointed when Courts misread facts or the law.

As far as juniors were concerned V.G. Sir was the best senior anyone could get. He gave freedom to every advocate in his office to take up any case, prepare and even try the cases. That is so rare. And the very shocking characteristic that V.G. Sir displayed was that he was always willing to clear doubts, simple as well as complex. That also I found a rare quality as many seniors see juniors as a threat to their own practice and keep what they have learnt to themselves. But Thanks be to God, V.G. Sir was not at all like that.

In fact, one of the first things I missed when Sir left Thiruvananthapuram on his appointment as the Director General of Prosecutions was this easy way to clarify doubts. Without Sir, I had to work on my own and go through several books and decisions in journals before I got answers. Asking Sir was easy. Once Sir went away, my easy days were gone.

This unique quality that Sir had was widely known and several advocates many decades into practice would come to his chambers for advice on knotty problems. And Sir always had an answer. That will be missed. Terribly.

And he genuinely encouraged. I remember the first time I prepared to argue a Criminal Appeal before the Sessions Court. Sir said, “if all goes well you can take the credit, if not I will cover for you.” How gracious! The best possible encouragement a junior can get. The appeal was allowed. But I truly believe that it was V.G. Sir’s kind encouragement and heartfelt blessings that gave the result rather than my preparation.

Most importantly V.G. Sir was the one who taught me professional ethics. It is a lesson that one cannot learn in every chamber. But Sir with his advice and more importantly his life showed the way. He always advised his juniors as to the unique calling we had. How we should be of a high moral and ethical standard in all our dealings. I remember an instance when he refused a Vakalath from a wealthy client for the sole reason that it was brought signed. He would rather lose a client, a wealthy one at that, than crush professional ethics under foot. What an example!

And his Court-Craft was amazing. I, in my short experience at the Bar, had occasions in which I lost my temper because the Judge did not see things my way. How silly! But Sir who had seen more than 45 years of practice was so patient. He was tenacious and never sacrificed any point in Court, but he was always gracious, smiling and persuasive, but never rude. I am sure every Judge before whom V.G. Sir appeared would vouch for that fact. That is another great example that he has set not just for me but for everyone at the Bar. Be tenacious and bold, but always be a gentleman.

V.G. Sir is gone. But his legacy lives on. His ability to lead and inspire is clearly borne out by the fact that many of his juniors went on to become respected Advocates with a good practice. Very few have left the profession for other jobs. How many Seniors can claim such an intangible wealth! And all of them without exception remember V.G. Sir with great respect and fond affection. V.G. Sir inspired and lighted a passion for the law in every one of our hearts. Working with him made us believe that Advocacy is the coolest profession on earth. Even Judgeship did not appeal when one was working with V.G. Sir. Even during his last days he was thinking about the profession. He in fact wrote a letter to the Union Law Minister (published in 2010 (2) KLT Journal 45) regarding the urgent need for notification of S. 29 of the Advocates’s Act, 1961 on which the Government is dragging its feet even after a specific direction by the Honourable Supreme Court. It was a fond topic of V.G. Sir’s. He always used to take it up with every politician he met. I sincerely hope that V.G. Sir’s long cherished dream will be fulfilled one day, that too soon. It would be a fitting tribute to a gentle soul who lived and breathed the law.

His passing

It was at a very late stage that everyone except his family members came to know of his illness. And that it was terminal. The last time he visited his chambers at Vanchiyoor, he was his usual cheerful self. We all noticed that he looked very frail. Now we know that Sir knew even then that his illness was terminal. But he never discussed any such matter. He stuck to law.

The last time I saw V.G. Sir alive and well was when I visited his home in Kochi. I along with a colleague went there. He was lying in his bedroom. He was very frail and looked very tired. But seeing us he smiled. Very beautifully. And then started discussing. Law, what else.

We spent almost an hour or so there. The entire time V.G. Sir discussed the law. In fact he was actually discussing about the need for development of ‘Forgive Jurisdiction’. He had argued a matter concerning a reference under Criminal Rules of Practice, 1982 (Kerala) R.131 before a Full Bench of the Honourable High Court (decision published as State of Kerala v. Salini (2010 (2) KLT 117). He had also drafted an article to be published in the KLT (later published in 2010 (2) KLT Journal 29 titled ‘Forgive Jurisdiction’). He showed us a draft. He discussed the origins of pardoning power of the State. All in all, an illuminating and mind expanding experience. All this when in fact Sir was not very well physically. But his mind was active, sharp as ever, thinking of law and its development. What a man! What a lawyer!

After that day I saw him only once. But by that time he was already sinking. Seeing V.G. Sir who was always so full of life on his death bed was a painful experience. But what is to be will be. No man can stop that.

It is better to go to a house of mourning than to go to a house of feasting, for death is the destiny of every man; the living should take this to heart. -- Ecclesiastes 7.2 (Bible)

His kind gesture to me

Lastly but most importantly I remember V.G. Sir for his mercy towards me. As described earlier Sir valued ethics and his reputation above everything in life. And I, in my carelessness and inexperience almost made a mess out of it. Right after he left for Kochi as Director General of Prosecutions, I made a terrible mistake which could have cost V.G. Sir his reputation which is without blemish.

When I realised the gross error I had made, and that because of my mistake Sir who was not at all to blame could lose his name, I could only muster enough courage to send an SMS asking forgiveness. I never called. That weekend when he came down to his chambers at Vanchiyoor, I ran up to his room and apologised profusely. V.G. Sir just smiled and said, “Do you realise the danger of what you did?”

That’s all! He did not utter even an unkind word to me. He was his usual smiling self. And he forgave me just like that! And he never once brought that issue up. How gracious and kind! Truly divine! I who deserved no mercy was shown mercy! That is the most precious moment I cherish of my dear Senior. When he later wrote about ‘Forgive Jurisdiction’, he was not preaching without practising it in the first place.

I remember as I was waiting for his body to be brought from Kochi to the Trivandrum Bar Association after his demise, thoughts of his act of mercy kept flooding my heart and I could not stop my tears. Every tear drop that rolled off my cheek that day was a humble offering of thanks to my dear senior who had earned my love, respect and admiration. Above his professionalism, his integrity, his enthusiasm and every other quality he displayed, I value his tender act of mercy shown to one who never deserved any, above everything.

Thomas Carlyle, the Scottish writer once said,

‘A great man shows his greatness by the way he treats little men’.

How true!