National Conference of all India Federation of Women Lawyers

By N.N. Girija, Secretary, KFWL

14/12/2009

National Conference of all India Federation of Women Lawyers at Kochi

on 28th and 29th December, 2009 - Hosted by the Kerala Federation of Women Lawyers

(By Advocate N.N. Girija, Secretary, Society of Kerala Federation of Women Lawyers)

The All India Federation of Women Lawyers having its roots in Indian Federation of Women Lawyers (IFWL) is a non political organization. It was formed in the year 1962 in Mumbai with the object of promoting the rights and welfare of women and children, particularly through legislation, and to advise and help them in the exercise of their rights.

The Federation has international links by virtue of its affiliation with the International Federation of Women Lawyers (FIDA) established in the year 1944. FIDA was granted consultative status in the UN in 1956, and included in the special list of Non-Governmental Organisations (NGO's) entitled for representation in the UN.

Late Mrs. Violet Alva, former Vice Chairperson of the Rajya Sabha, lawyer and freedom fighter who was instrumental in forming the Federation, was President of the International Federation of the Women Lawyers (FIDA) from 1962-1964. During her tenure, the international convention of FIDA was held at New Delhi in 1964 with the theme ‘Human Rights in the United Nations Development Decade.’

The Kerala Branch, of IFWL, formed in 1963 has been active in fostering discussions and debates on issues relating to women and children within the legal fraternity as well as among the public. The views of the Federation have been sought by the Law Commissions to shape various legislations including the establishment of Family Courts, laws relating to divorce, maintenance, succession, guardianship etc.

The Federation had been pursuing, ‘the necessity of establishing Family Courts in the country’ since its Fourth National Convention in 1971 with the Government which fructified in the year 1984 with the enactment of the Family Courts Act.

The 33rd International Convention of FIDA was held at Milan, Italy from 13th to 16th November, 2008 with the theme ‘Children are the future - which rights-what laws.’ About twenty four delegates from India, including fifteen from Kerala, attended the Conference in which various measures to be adopted for preventing child abuse, protecting child rights etc., were discussed in detail. The conference stressed on the primary responsibility of the State to frame laws in this regard and ensure its proper implementation. Resolutions passed in the Conference entrusted FIDA with the responsibility to persuade Governments to enact laws on the rights of children and prevention of criminalization and utilisation of children in any form. It was also resolved that the persons engaged in transboundary trafficking in women and children should be tried by the International Criminal Court. FIDA urged for more speedy and stringent action against the violation of child rights.

The Federation has been, rendering assistance to the underprivileged and distressed women to secure their rights in property, custody of children etc. through courts of law and mediation. The members of the Federation have conducted legal literacy classes in rural areas like Kumbalangi, Mulavukadu and tribal areas to enlighten the women about various legislations to safeguard the interest of women and children and also to make them aware about remedies available against exploitation and infringement of their rights. It also assisted the Hon’ble High Court in imparting training for members of the lower judiciary on sensitization of the judiciary towards women’s issues.

The Kerala Federation, registered under the Travancore Cochin Literary Scientific and Charitable Societies Act has always associated with the Kerala Legal Services Authority and other organizations like The People’s Council for Social Justice, ‘Niyama Sameeksha’ etc. in their activities for spreading legal literacy.

The important seminars organized by the Federation stands testimony to its commitment to the cause of women. A seminar was organized in the year 1982 on the Indian Succession Act, with reference to its applicability to those governed by the Travancore and Cochin Christian Succession Acts highlighting the discrimination against women in that community.

In November 1985 a seminar was conducted on the topic “Personal Laws Relating to Muslim Women”, considering the events pursuant to Shabanoo’s case. The participants represented the entire cross section of the society. A resolution was passed against the exclusion of muslim women from the purview of S.125 Crl.P.C. since it was detrimental to their interest.

In March 1989 the Law Commission sought the opinion of the Kerala Branch on the question of inclusion of irretrievable break down of the marriage as one of the grounds for divorce under the Hindu Marriage Act as well as the need to enhance the quantum of interim maintenance under S.125 of Crl.P.C. Both the amendments were the outcome of the recommendations by the Kerala Branch of the Federation.

The Kerala Branch discussed the practical difficulties faced in the implementation of the provisions of the Family Courts Act, 1984 in the seminar held in November 1992. The branch took initiatives in discussing the means to make the functioning of the Family Courts more effective.

In the year 1995 a seminar was conducted by the Federation on the need to amend S.10 of the Indian Divorce Act, 1869, regarding the grounds of dissolution of marriage available to Christian women, by deleting the word ‘incestuous’ and removing the word ‘adultery’ from the grounds 6 and 7 of S.10 as they were discriminatory towards women.

A detailed study was conducted on the Civil Procedure Code Amendment Bill of 1998 in a subsequent session and our suggestions were forwarded to the Law Commission.

Discussions and meetings on various other topics were also organized by the Kerala Branch including the one on recommendations of Justice V.S.Mallimath Committee on Women’s Reservation Bill, Domestic Violence, Sexual Harassment of Women at the work place (in the light of the Supreme Court guidelines in the Vishaka’s case (1997 (2) KLT SN 72 (C.No.72) SC) and on difficulties faced by physically challenged women and children.

In February 2009 the Federation convened another seminar on “Polygamous Marriage in the 21st Century”. It was attended by social activists from various strata of the society and legal experts. On the environmental front, the Kerala Federation conducted a seminar on “The Draft Forest Policy of Kerala State and Environment Endeavours” in 2007. The recommendations that evolved were presented to the Minister for Forest and Environment and some of the ideas have been incorporated in the Forest Act, 2009.

After hosting two biennial conferences in the years 1965 and 1982, the Federation is now getting ready to host the National Conference at Kochi on 28th and 29th December, 2009 under the able guidance of Senior Advocate V.P. Seemandini, President, All India Federation of Women Lawyers (AIFWL) and Senior Advocate Sumathy Dandapani, President, Kerala Federation of Women Lawyers (KFWL). Founder members of the Kerala Branch, Justice K.K.Usha and Advocate T.D.Rajalakshmi continue to be actively involved in the affairs of the Federation and remain a source of inspiration, for us.

The coming National Conference is an important event, for the members of the Federation, giving them an opportunity to interact with delegates from all over India, to share their experiences and to discuss vital issues concerning women and children of current relevance. The issues of discussion at the conference include matrimonial property, Cyber Crimes against women and children and Bill on Protection of Women against Sexual Harassment at Work Place.

The Federation rededicate, itself to the cause of women and children at the coming Conference with the theme ‘SECURE WOMEN FOR A SECURE WORLD’ and seek the whole-hearted co-operation and support of all women lawyers and well wishers to make the National Conference a memorable event.

Regarding Retrospective Amendments of Law

By Peter A. Mathai, Chartered Accountant, Kochi

14/12/2009

Regarding Retrospective Amendments of Law

(By Peter A. Matthai, Chartered Accountant, Kochi)

Whenever a law is made it should be prospective and never retrospective. Giving retrospective effect to any amendment of law shows the inefficiency of the process of law making as well as the law maker. A law maker is respected by all because of the power he wields and the knowledge he is supposed to have gained prior to qualifying himself for the coveted post. So he should not go below a certain standard to lose that respect.

The intention of the law maker when S.54EC was introduced in the Income Tax Act was to enable the assessee who sells any immovable property (can be any capital asset) to invest the capital gains (selling price minus cost and expenses) in certain bonds for three years and take advantage of tax exemption. As per the original law there was no ceiling limit which means that an assessee can invest the whole amount of capital gains whether it is lakhs or crores of rupees and avoid paying tax. But later on this position of law was amended and a ceiling limit was introduced with retrospective effect so that an assessee who accumulates a capital gain of Rs.5 crores will have to pay tax on Rs.41/2 crores at the rate of 20% plus surcharge etc. which works out to Rs 1 crore. As per amendment the maximum investible amount is limited to Rs 50 lakhs.

Here the law maker has noticed that a good number of assessees (Indian Citizens) are making advantage of the original law. What prompted the law maker to amend the law is quite clear. But those assessees who had already sold capital assets or those who had entered into sale agreements with the above law in mind (after consulting experts by paying fees) are not spared because the amendment was given retrospective effect.

What happens in such a situation is 1) the law maker loses his credibility and respect 2) the law maker accepts what he had written earlier was without foreseeing many things which a prudent layman must have done 3) the assessees lose considerable money and 4) the Tax consultant (Tax Planning Expert) loses all his glamour he can only blame the law makers.

What is explained above is only one-example of what is happening in law making. This is applicable to all retrospective amendments of law. What a citizen did in 1990 with complete obedience to law becomes a crime in 2008 whereby he might be punished now. This position should change and should be discouraged and only then a Government can be said to be stable. Normally a stable Government means a Government that withstands a no-confidence motion moved by opposition. But in real terms it should be a Government that sticks to its own policies in a consistent manner foreseeing the welfare of the Citizens. A stable Government should at least stick to the law passed in the Parliament (the promises given to the poor voters) till such a law is amended prospectively.

As a simple illustration I would like to conclude saying that the Rules of a game should be finalized and should be made known to both sides before the game starts and no changes should be entertained till the game is over. Not even the law maker should be permitted to amend any rules of the game with retrospective effect. In such a situation what happens is that the winning side (as per original law) becomes the loser (as per the amended law).

This type of retrospective amendments will create enmity between the law maker (Government) and the citizen (Voter) which is not a desirable sign for a ‘Government of the People’

Haelan Laboratories v. Topps Chewing Gum, 202 F2d 866

By Karni Singh Rajora & Krishnan Krishna K.

07/12/2009

Haelan Laboratories v. Topps Chewing Gum, 202 F2d 866

(By M/s. Karni Singh Rajora & Krishna K.,VIII Semester B.A.LL.B. (Hons.), NUALS, Kochi)

Quorum of the Judges Before Swan (Chief Judge), Clark and Frank (Circuit Judges).

Facts

The plaintiff is a chewing-gum seller and for the advertising of its product they made a contract with a baseball player providing that plaintiff will have an exclusive right to use the player’s photograph in connection with the sales of plaintiffs gum; the ball-player also agreed not to grant any other gum manufacturer a similar right during such term. Defendant, a rival chewing-gum manufacturer, deliberately induced the player to authorize defendant, to use the player’s photograph in connection with the sales of defendant’s gum either during the original or extended term of plaintiff’s contract and the defendant did so use the photograph.

Right to privacy viz-a-viz right to publicity

The case at hand mainly deals with a balance between right to privacy on one hand and right to publicity on the other hand, in which both the parties agreed that the New York “Law” governed their conduct and any such contract between plaintiff and a ballplayer, in so far as it merely authorized plaintiff to use the player’s photograph, created nothing but a release of liability. Thus, the defendant, knowing of the contract, deliberately induced the ball-player to break that promise and behaved tortuously¹. Some of defendant’s contracts were obtained by it through its agent, Players Enterprise, Inc; others were obtained by Russell Publishing Co., acting independently, and were then assigned by Russell to defendant. Since Players acted as defendant’s agent, defendant was liable for any breach of plaintiff's contracts induced by Players. The breach was made by the defendants either by themselves or through their agents, but where it was made by Russell, the Court did not agree with the defendant that none of plaintiff's contracts created more than a release of liability, because a man has no legal interest in the publication of his picture other than his right of privacy. The court opined that, in addition to and independent of that right of privacy, a man has a right in the publicity value of his photograph, i.e., the right to grant the exclusive privilege of publishing his picture, and that such a grant may validly be made without an accompanying transfer of a business or of anything else. This right might be called a “right of publicity”.²

Furthermore, the right of privacy was “purely personal and not assignable” because “rights for outraged feelings are no more assignable than would be a claim arising from a libellous utterance.” Thus, the party soliciting such a subsequent contract knowing of the prior rights and proceeding to use the grant given in violation thereof, its contract is tainted with illegality and is utterly invalid.³ The matter was then remanded to the Trial Court for the determination of two points:-

(1) the date and contents of each of plaintiff's contracts, and whether plaintiff exercised its option to renew;

(2) defendant’s or Players’ conduct with respect to each such contract;

(3) the date and contents of each of defendant’s contracts under which defendant claims, and whether defendant exercised its option to renew, and

(4) plaintiff's conduct with respect to each such contract.

Character Merchandising

In this decision the “right of publicity” as a means of appropriation of one’s personality was acknowledged to confer on a person the same benefits as any other property right, namely, the “exclusive, assignable and descendible” right. The right of publicity tort involves the appropriation of a celebrity’s name or identity for commercial purposes. It seeks to project the property interest that a celebrity has in his or her name; the injury is not to personal privacy, it is the economic loss a celebrity suffers when someone else interferes with the property interest that he or she has in his or her name.⁴ What is protected under the right of publicity is “the persona.” In short, in the U.S. appropriation of personality of a celebrity is recognized as a tort in that it amounts to appropriation of his right of publicity, damages for which are intended to compensate for the loss of goodwill by the use of celebrity’s personality. The tort of passing off is based on the property value of goodwill in a business. This is precisely what is affected by the appropriation of a celebrity’s personality. Further, the principle of unjust enrichment demand that a person must not “unjustly” benefit at the expense of another; in the case of a celebrity, such expenses may be very tangible.⁵

Trademarks and right to publicity

Generally, celebrity actors and athletes lead the field of personalities who enjoy a substantive economic value and goodwill in the market much like a trademark. It appears that the celebrity personality is an intangible and valuable asset, and a trademark framework may prima facie suit a majority of right of publicity cases.⁶ The right of publicity, as determined by the United States Court of Appeals for the Second Circuit in the above decision, gives a celebrity the right to damages and other relief for the unauthorized commercial appropriation of that celebrity’s identity, and such a right is independent of a common law or statutory right of privacy. Hence, the right articulated by Judge Frank in the Haelan Laboratories case has taken root and has grown with the increase of endorsements and other exploitation of personal images of celebrities.

There are possible analogies between the right of publicity and the law of trademarks which may be useful in attempting to define limits to publicity rights. In many respects, the right of publicity functions like a trademark to identify the origin of the celebrity’s services.⁷ One pair of commentators has proposed that the doctrine of trademark abandonment, for example, provides a conceptually sound analogy for limiting the right of publicity.⁸ If the estate of a deceased celebrity, they argue, fails to exploit the celebrity’s name and image for a period of time after death, the estate will be deemed by analogy to trademark law to have abandoned its rights. A third party may, at that point, begin to exploit the deceased celebrity’s name or image. The longer the period between the death of the celebrity and exploitation of the celebrity’s persona, the stronger the presumption that the estate has abandoned any claim to the right of publicity.⁹

Another analogy to trademark law is developed below: an analogy to the doctrine of generic use. Under that doctrine, a trademark proprietor loses its rights when the mark becomes identified in the public mind with a generic product ¹⁰. Much in the same way that a trademark passes into the public domain because it assumes a generic meaning, a celebrity’s right of publicity should expire and pass into the public domain when the celebrity’s persona assumes symbolic meaning. Whatever its other merits or demerits, such a rule would operate as a limit on the otherwise rather nebulous boundaries of the right of publicity

Current Position

In Haelan Laboratories, which was decided over a decade before Uhlaender v. Henrickson ¹¹, the court glossed over this with a perfunctory comment that “(whether it be labelled (sic) a ‘property’ right is immaterial,” as the courts are effectively enforcing a claim which has pecuniary worth. Generally, with degrees of variations across different state jurisdictions, the United States courts continued to endorse this approach over the next forty years as they recognized the right of celebrities to recover for the unauthorized commercial use of their personae irrespective of the label attached to the right; the doctrinal justification, however, has become almost irrelevant in the courts’ alacrity to protect celebrities from such unauthorized uses.

In another case the Sixth Circuit made a notable contribution to development of the right of publicity in Carson v. Here’s Johnny Portable Toilets, Inc.^₁₂ This case is legally interesting in two respects: first, because it addresses the role of parody in publicity cases; second, because it demonstrates that “indicia of identity” (to quote the Restatement) do get protection of the right. The case arose out of two puns used by a Michigan manufacturer of portable toilets. The manufacturer adopted the trade name “Here’s Johnny,” and used the slogan “The World’s Foremost Comedian.” Neither the visage nor the name of the television comedian, Johnny Carson, was used. Nevertheless, Carson argued, his television show had so popularized the phrase “Here’s Johnny,” that it had become an indicator of identity. Though, the claim for action was rejected by the Second Circuit court, the Sixth Circuit was not willing to deny the plaintiff's entire case. The court, divided 2-1, opined that Michigan common law would recognize a right of publicity.¹³ On the issue of “indicia of identity” the court held that even a popular singer’s voice and style can be protected under the right of publicity.

Nevertheless, in contemporary society, fame is nurtured through the joint efforts of the celebrity trinity - the producers, the audience, and the celebrity individual, - and the Lockean labour doctrinal justification does not address the substantial labour put in by those other than the individual celebrity labour that can often exceed the labour put in by the celebrity. Ironically, in the last few decades, as the celebrity production industry grew in power, organization, and reach, resulting in the diminution of the labour of the celebrity individual, the courts saw an even greater need to recognize the publicity right as the sole property of the celebrity individual. ¹⁴

Indian Position

As far as the celebrities rights to publicity in India is concerned, the decision in the case of Star India Pvt. Ltd. v. Leo Burnett India ¹⁵, provides that to make a copy means to make a copy as a whole. It starts with the premises that S.13 of the Indian Copyright Act, 1957, excludes originality in case of cinematograph film. The facts in that case related to the making of a 30 seconds long advertisement of the ‘Tide Detergent’, which was based on a serial telecasted by Star Television namely ‘Kyuki Saas Bhi Kabhi Bahu Thi”. The advertisement was made in such a manner that any person viewing the advertisement will be remembered of the serial. In an action bought by Star India the court relying on the premises under S.13 refused to grant relief and held it as a violation of copyright. Here the court held that to make a copy means to make a whole copy.

Foot Note :

1. Hornstein v.Podwitz, 254 N.Y. 443, 173 N.E. 674, 84 A.L.R. 1.

2. Wood v.Lucy, Lady Duff Gordon, 222 N.Y. 88, 118 N.E. 214; Madison Square Garden Corp. v. Universal Pictures Co., 255 App.Div. 459, 465, 7 N.Y.S.2d 845;

3. Reiner v. North American Newspaper Alliance, 259 N.Y. 250, 181 N.E. 561, 83 A.L. R.23.

4 Carrie Rainen, "The Right of Publicity in the United States and the United Kingdom" (2005) 12 New Eng. J. Int’l & Comp. 197 at p.206.

5. N.S. Gopalakrishnan & T.G. Agitha, Principles of Intellectual Property, 1st edn., Eastern Book Company (2009).

6 David Tan, "Beyond Trade Mark Law: What the Right of Publicity can Learn from Cultural Studies", 25 Cardozo Arts & Ent. LJ. 913.

7. Winterland Concessions Co. v.Sileo, 528 FSupp 1201,1214, 213 USPQ 831 (ND III 1981).

8. Armand Cifelli and Walter McMurray, "The Right of Publicity: A Trade Mark Model for its Temporal Scope", 66 Journal of the Patent Office Society 455, 458 (1984).

9. Id at 470-71.

10. J.Thomas McCarthy, Trade Marks and Unfair Competition, 526(2d ed 1984).

11. Supp. 1277, 1282 (D. Minn. 1970).

12. Carson v. Here’s Johnny Portable Toilets, Inc, 698 FD 831 (CA 6, 1983).

13. William L. Prosser, Handbook of the Law of Torts, § 117 (4th Ed 1971).

14. Supra n. 4.

15. 2003 (27) PTC 81.

A Decent Dissent on Domestic Violence

By Sreejith Cherote, Advocate, Kozhikkodde

30/11/2009

A Decent Dissent on Domestic Violence

(By Sreejith Cherote, Advocate, Kozhikode)

1. A ruling of our High Court doesn’t seem to reflect the correct proposition of law. The verdict tends to give an impression, to be in contradiction with the very objective of the Legislation. Wrong reasoning has denied the benefits of the legislation passing on to the beneficiaries, hence an intellectual provocation to right this dissent.

2. The legislation is The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred as Domestic Violence Act) and the ruling, Kanakaraj v. State of Kerala reported in 2009 (3) KLT 330. In the aforementioned ruling, the learned single Judge by his power of authority, declared that, for the violation of all orders passed under Ss.19,20,21 or 22 of the Domestic Violence Act, does not attract the penal provision under S. 31 of the Act and further clarified that only a violation of S.18 of the Domestic Violence Act, attracts the penal provision. Reliefs other than S.18, including monetary relief provided under the Domestic Violence Act is not enforceable by penal provisions. Of course a plain reading of the section justify the reasoning adopted by the Court, as it is expressly stated in S.31 of the Domestic Violence Act that the violation of a “protection order” and interim “protection order” shall be an offence and punishable with imprisonment or with fine. Literarily the punishment is only prescribed for violation of “protection orders”, hence there won’t be any penal action under the Domestic Violence Act for the violation of monetary orders and other orders not being a protection order. The vital element of deterrence is absent as measure for calling for compliance of the order of monetary orders by the Court. It is seen in many a case that there is no compliance of such order for want of effective enforcing force. Aforesaid fact can be considered a reason to declare the legislation as a failure as far as the aforementioned orders are concerned, at least at the execution level.

3. Things seem to be clear, if our endeavour is only to interpret law by applying a surface reasoning and is satisfied with the result, untouched by an impact unintended by the legislature. But when thinking of our own action, in interpreting the Domestic Violence Act as doing violence to the legislation itself, and if we are not satisfied with the impact of the outcome of such a reasoning, we dive deep into the legislation in search of a source, to undo the misery with the expectation that we can discover from abyss of law, a threshold which will lead us to a destination, parallel to the objective of the legislation. An effort in the said line yielded results, described below.

4. First to reproduce the relevant portion of the sections we are concerned with, beginning with S.2(o) of Domestic Violence Act.

S.2(o). “Protection order” means an order made in terms of S.18.

S.3. Definition of domestic violence- For the purpose of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it-

(a) ***** (Defines domestic violence)

Explanation I

(i) (defines physical abuse)

(ii) (gives an inclusive definition of sexual abuse)

(iii) (gives an inclusive definition of verbal and emotional abuse)

(iv) “economic abuse” includes -

(a) Deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to household necessities for the aggrieved person and, her children, if any stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance,

(b) *****

Explanation II- *******

S.18 Protection orders - The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from-

(a) Committing any act of domestic violence;

(b) ****

(d) ****

(e) ****

(f) ****

(g) ****

S.31. Penalty for breach of protection order by respondent.- (1) A breach of protection order or an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both.

5. While analyzing the legislation in a purposive angle of bringing justice to the beneficiaries of the legislation, we can see that in the definition of protection order under S.18 sub-cl.(a), while defining protection orders incorporates into it, an order prohibiting any act of Domestic Violence. The term Domestic Violence is also defined in the Act as per S.3, which means to include in its ambit “physical abuse”, “Sexual abuse”, “verbal and emotional abuse” and “Economic Abuse”. The right legislative response to the legal crisis as to the penal enforcement of the monitory orders passed seems to be inbuilt in the definition of “Economic abuse” explained in S.3 of the Act, which incorporates into its province all economic deprivation, an aggrieved person is entitled to, including the economic recourses entitled as per an order of the Court. Hence it does not stand to reason how a monetary order of a court directing the respondent to pay maintenance or compensation or any other monetary relief cannot be considered as protection orders and is not warranted with penal provision under S.31 of the Domestic Violence Act, inspite of the express legislative mandate.

6. If we stretch our reasoning with a view to make the legislation meaningful, we can see that in the definition Domestic Violence, we can also include any action of the respondent in disobedience of the order of the court, including monetory orders and bring them within the purview of S.18, so as to make them punishable under S.31 of the Domestic Violence Act. Hence it is distressing that a remedy which is conferred on the aggrieved person by the legislature is not reaching them for want correct logical approach.

7. Understanding a problem is ineffectual without undoing the misery. No analysis is worthy without suggesting a solution for the crisis. Things being clear the only problem which remains, is how to get over the obstacle of the “Stare decisis”¹ and carve out an exception for the “ Rule of Precedent”, for the purpose of refraining to apply the ratio, of the aforementioned decision in future cases, until overruled by a higher bench. The aforementioned ruling of Honourable High Court is still a hurdle for the Lower Court to act in consonance with the legislation and in bringing justice to the beneficiaries. But as we know, in the realm of law, no wrong is without remedy and searching for a solution for mining out a proposition of law to evade the impact of a wrong decision, brings us to the doctrine of “per incuriam”² principally developed by the English courts in relaxation of the rule of stare decisis, where a ratio of a decision is avoided and ignored if it is rendered, in ignorance of a statute or other binding authority³. Per incuriam refers to a judgment of a Court which has been decided without reference to a statutory provision or earlier judgment which would have been relevant⁴. The significance of a judgment having been decided per incuriam is that it does not have to be followed as a precedent by the lower court giving it a good option for the lower court, not to follow the judgment for being decided per incuriam.

8. To perpetuate an error is no heroism, to rectify it, is the compulsion of the judicial conscience. Hence this dissent, even though improperly sponsored for the reason of its origin, from the opposite side of the bench, may treated as an appeal to the intellect of future to rectify the error.

FOOT NOTE:

1 Interpretation of Statutes - By Justice A.K.Yog. 1st Edition 2009.

2 . A.R.Auntlay v. R.S.Nayak (AIR 1988 SC 1531)

3 . M/s Furest Day Lawson Ltd v. Jindal Exports Ltd. (AIR 2001 SC 2293)

4 . Delhi Municipal Corporation v. Gurunam Kaur (AIR 1989 SC 38)

* Comments to the Author can be made to “Sreejithcherote@gmail.com”

I Wish to be Reborn As a Lawyer Only

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

30/11/2009

I Wish to be Reborn as a Lawyer Only *

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

From zero to eighty-two, I have attained the big age of innocence. My friend Sri.Dandapani, who has anthologized my writings and speeches, has proved that he has attained the age of discretion and discrimination.

I have written and spoken with conviction and courage. I do not draw a Da Vinci portrait. Some of my writings and speeches are judicial door-stoppers, sometimes frowned upon as stinging, though my intention is not to wound. I write with my ‘blue pencil’ only, not with dagger. I speak without fear or hatred. I speak and write in search of myself, not to shine to victory.

I always carry the burden of expectations for the good of the legal profession, as I go on writing. My writings are not letters to God.

I am greatly indebted to Adv.Sri.Siby Mathew and his father, the late Advocate Sri.M.C.Mathew, for publishing almost all my writings and speeches in the Kerala Law Times. Senior Advocate Sri.K.P. Dandapani has created this all-in-one book. Merely thanking him, is too little repayment for so great a debt I owe him. All heart to Sri.Dandapani.

I conclude by saying, as I have said in this book,

“I wish to be reborn as a lawyer only”.

Thank you.

* Reciprocation Speech delivered by T.P. Kelu Nambiar, on 2.11.2009, at the Kerala High Court Auditorium, on the occasion of the release of “NAMBIAR THIRD MISCELLANY”.