Order 21 Rule 73 : Other Person - Avenues Open For Further Thought
By G. Sreekumar (Chelur), Advocate, HC
30/03/2009
Order 21 Rule 73 : “OTHER PERSON” — AVENUES OPEN FOR FURTHER THOUGHT
(By Sreekumar G. (Chelur), Advocate, High Court of Kerala)
It is true that the Code of Civil Procedure gives you fascinating avenues and this is experienced, the more you attempt to understand the provisions deeper and in a more convincing manner. It is also true that when a provision is read and understood, and thereafter you by yourself determine that this could be the true purport of the provision, then in a different given set of facts, on an analysis of the same provision we find that the door is open for yet another interpretation which, perhaps nobody ever had in their contemplation. This is yet another fascinating feature of the Code. It is also particular to see that in almost every situation there is an answer how the procedure should be applied and how the substantive law is regulated, and probably this one feature gives the Code the completeness. A true civil lawyer or for that matter any lawyer will like the Code only after reading and understanding its provisions with reference to a set of facts and only after he starts liking it, that, he further continues to like it with no end.
This article is the by-product of a mind, certainly in doubt, on an issue which may have some relevance at some point of time. There are provisions in the Code which on deeper analysis, the spectrum is broad but restrictions are sought to be imposed which otherwise even the Code did not contemplate. This is meant to say that restrictions are sought to be imposed, which restrictions even the Code did not want to have. One such provision is Order 21 Rule 73 of the Code. The said provision is titled as “Restriction on bidding or purchase by officers”. The statutory provision does not restrict the embargo on the officers alone since the provision says “no officer or other person having any duty to perform in connection with any sale shall, either directly or indirectly, bid for, acquire or attempt to acquire any interest in the property sold”. Therefore the use of the word “other person” and the qualifying factor of such person, as determined as “having any duty to perform in connection with any sale”, on an assimilation of these provisions and the purpose for which they are created, one gets a feeling that the statutory provision titled as restriction on bidding or purchase by officers would be creating an embargo on a specified set of persons, which embargo was not the true intention of the statute. Situations may emerge where we find persons who will be such “other person having any duty to perform in connection with any sale”. Under S.51 an execution could be ordered against the judgment debtor, including the surety. Such execution could be in the form of an attachment and sale, or by sale without attachment of any property. Hence a surety in relation to that property, if a sale takes place which is coercive action, has an obligation if he is otherwise capable of doing, to perform a duty in terms of a sale. Therefore as far as a court sale of a property attached is concerned, when such sale is proposed on a date, if the surety attempts to participate and bid in the sale, is it not a case which is restricted under Rule 73 of Order 21. Can it not be said that the “other person”, in the instant case a “surety” has a duty to perform in connection with any such sale. Is it not a case where such a person is prohibited from bidding either directly or indirectly. In fact such a person does bear an embargo even to acquire or attempt to acquire any interest in the property sold. This could be one of the situations probably visualized when this particular provision is drafted.
Likewise S.50 contemplates proceedings in execution against the legal representatives. Sub-s. (2) of S.50, of the Code of Civil Procedure extents the execution to the property of the deceased which comes to his hand. Rule 73 of Order 21 further travels to bring within its fold such actions which are “bidding”, “acquiring or attempt to acquire any interest in the property sold either directly or indirectly”. Therefore if a stranger is set up in a court auction at the behest of either the original debtor, or of the surety or of the legal representatives, and in an enquiry it is revealed that this was an indirect attempt to acquire interest, for whatever be the reason, can it not be said that Rule 73 of Order 21 cross checks such a process.
It is worthwhile to note that as is commonly accepted that the embargo created under the above provision is confined to the officers of the court, more restrictions, in a more comprehensive manner are there in the Transfer of Property Act, 1882. Under S.136 of the said Act, it is explicitly made clear though it relates to an actionable claim that there shall not be any buying or trafficking, in the matters specified therein. In the Code of Civil Procedure, 1882, the same year when the Transfer of Property Act also came into force, the “other person” was not there. It was brought in by way of an amendment. I feel on a more broader way of looking at things, the attempt was to weed away an attempted fraud in a court sale by setting up ostensible ownership. I may be wrong when I attempt to project such a view. But on a general analysis I feel that the said provision has not been given the due weightage which it otherwise is entitled to. No much pondering of the issue has taken place so far. Avenues are still open, which I feel a deliberation on the issue will take us to more meaningful answers.
For Whom the Judge is Born
By T.P. Kelu Nambiar, Sr. Advocate, High Court, Ernakulam
30/03/2009
FOR WHOM THE JUDGE IS BORN
(By T.P. Kelu Nambiar, Senior Advocate, High Court of Kerala)
Franz Kafka, had, eighty-three years ago, wailed over the timidity of lawyers to criticize the judicial system insisting on improvements. David Pannick, in his ‘Judges’ (1987), boldly gave ‘an advocate’s reflections on the judicial system’, noticing : “That is a subject about which most laymen and many lawyers, have very pronounced views in private but which the mysticism surrounding the law often inhibits them from expressing in public”. This reluctance, Pannick regretted. I share the Advocate author’s concern, and dare to speak may mind, as Pannick dared.
Let me make a lucid statement: Nobody is born a Judge. A Judge is not an ‘avatar’. An ordinary living person is selected/chosen and appointed a Judge as per legal provisions. A Judge is thus born.
Part V Chapter IV Arts.124 to 147 of the Constitution of India deal with the constitution and organization of the Supreme Court. Part VI Chapter V Arts.214 to 231 deal with the constitution and organization of the High Courts. Part VI Chapter VI Arts.233 to 237, deal with Subordinate Courts. Therefore it falls into place that Constitutional provisions are there in respect of the entire judiciary, from the lowest class of Magistrates to the highest office of Chief Justice of India. A qualified person is appointed to the particular post by prescribed method of selection/recruitment.
The Constitutional oath provided for Judges of the Supreme Court and the High Courts, in the Third Schedule, obliges them to uphold the Constitution and the laws, performing their duties duly and faithfully, without fear or favour, affection or ill-will.
All these would show that Judges are appointed, and thus born, for ‘we, the people of India’. Then, why deify Judges in a democracy/under the Indian Constitution. Justice V.R.Krishna Iyer had to decry public esteem to courts through ignorance. Justice Krishna Iyer was echoing the view expressed by Judge Jerome Frank (in Courts on Trial) that ‘it is a mistake to try to establish and maintain, through ignorance, public esteem for our courts’. That amounts to enforced respect. A Judge is not a name frozen in frames.
Therefore, it is wrong to assume that a person becomes a Judge for his own benefit, to enjoy the so-called majesty of the office, its powers and privileges, his family feeling that ‘its Judge’ has brought power, name and fame to him and his ‘near and dear’.
A Judge is not a mere terminator of litigations; he is a generator of justice. He is a whistler. The court is not a battle-field. The court should be a safety zone, free of noise pollution. In a fully loaded bar, therewould be ‘unseeded’ and ‘wild card entry’ lawyers, who should be treated fairly. They should not be made to feel dejected over their ‘chanceless advocacy’. Judges should not laugh away lawyers’ arguments, nor should they try to put their views down the throat of lawyers. As observed by the Supreme Court, in Arun Devendra Oza’s case, “there should be a proper amity between the Bench and the Bar rather than any element of arrogance or superiority on one side”. ‘I am the monarch of all I survey’ attitude should not be there on one side. They should know the difference between talking and communicating. Judges should get rid of ‘I cannot do anything about it’ attitude. They should hear and decide in silent detachment, observing judicial calmness. Judges should read the pointed word, instead of depending on software. They should realise that the Court is not a B-School; nor is it an Enid Blyton territory. Judges should stay connected. And justicing is not an evening in Paris. The court is not a family firm of either the lawyers or the Judges. I say all these ‘off my own bat’, and I should think, I am entitled to say so, as it is now about fifty-five years I have dropped anchor in the legal profession, and am only too well familiar with the institution and its working. It might be interesting to realise that the last Chief Justice (of the Kerala High Court), before whom I have appeared, namely Chief Justice Dattu, was born only after the first Chief Justice before whom I had appeared, namely, Chief Justice P.V.Rajamannar, was appointed Chief Justice (of the Madras High Court). It is seen that Sri Dattu was born on 3.12.1950; and Justice Rajamannar was appointed Chief Justice on 18.1.1948. And, it is more interesting to realise that I had appeared before Judges, who were my law teachers; before Judges, who were my class-mates; before Judges, who were my students; and before Judges, who were my son’s class-mates. I should think, with all my experience, I have discovered the legal profession and the judiciary. Judges, at meetings and seminars, point out how lawyers should behave and function. That is as it should be. Well, lawyers are also entitled to express their opinion as to how Judges should behave and function.
Let me here notice some of the views of David Pannick for Judges to take note of:
“Advocates make submissions rather than present arguments. They introduce these arguments with an obsequious May it please your Lordship, when, “Hello, good morning Judge” would do”.
“Lord Widgery advised that Judges should not court publicity and certainly should not do their work in such a way as to catch the eye of the newsman”.
“ln Exodus we are told that the ordinary Judges decided the easy cases, but the hard cases they brought unto Moses”.
‘“The absence of public criticism (of Judges) should not be taken to imply private admiration”.
“Judicial independence was not designed as, and should not be allowed to become, a shield for judicial misbehaviour or incompetence or a barrier to examination of complaints about injudicious conduct on apolitical criteria”.
“We are entitled to require Judges to abandon their priesthood and to present their activities for assessment by laymen. Any aspects of judicial administration which create barriers between the legal system and the community it serves need justification in a democratic society. In considering these issues, it is important to remember, above all else that Judges are fallible human beings”.
“The legal process is not a pageant to be admired by tourists”.
“We need Judges who are trained for the job, whose conduct can be freely criticized and is subject to investigation by a Judicial Performance Commission”.
“Advocates have not been persuasive in the cause of their own profession, but they have a very strong case”.
The judiciary functions for the people of India. The ‘Indian Solomon’ is accountable to the people of India. Judges are made in India for the people of India. A Judge is appointed, and he functions, to preside over disputes between parties, not over the parties or their counsel, and render impartial justice, without fear or favour, affection or ill-will. In the final analysis, I should think, a Judge can be considered to be appointed by the people, when the spirit of the Constitution is subjected to close analysis.
“If the Legislature exceeds its power, this court steps in. If the executive exceeds its power, then also this court steps in. If this court exceeds its power, what can people do”. National Textile workers Union v. P.R. Ramakrishnan ((1983) 1 SCC 228 at Page 281).
Note: This observation was made more than twenty-five years ago. Today, the query can be answered by saying:
“’We, the people of India’, would step in”.
Explanatory, Note:
This write-up is prompted by a telephone call by a voice, which, without disclosing the identity of the author of the voice, introduced itself as a lawyer with ‘leap year’ practice in search of identity, which said that a Judge (whose name was not revealed) had abused him, by observing ‘you are a useless lawyer, qualified to be designated as Senior Advocate’; and before I could finish my instant reaction, ‘you can take proceedings against the Judge for contempt of court, for a Judge who insults an advocate in court commits contempt of his own court’, the line was dead, and the voice ceased.
C.P.C 1908, A Century of Distilled Wisdom
By K.V. Sohan, Advocate, Ernakulam
23/03/2009
CIVIL PROCEDURE CODE, 1908 -- A CENTURY OF DISTILLED WISDOM
(By K.V. Sohan, Advocate, High Court of Kerala)
The strength of substantive laws largely depends upon the dexterity of the procedural laws. It is the quality of the procedural law of a country, which determines the merit of dispensation of justice, which in turn secures an orderly society. A fair procedure helps the citizens in securing freedom, liberty and saves his property from the invasion of fellowmen. An efficacious, inexpensive, speedy and guaranteed, right to approach the Civil Court for redressing an injury prevents the masses from taking the law unto itself. The Civil Procedure Code, which was first unified in 1859, re-enacted in 1908, amended from time to time, no doubt served the purpose in its own compassionate, gentle, but in a forceful manner.
What the proficiency of the chef to the food, is what the proficiency of the Judges to the justice delivery. The role of the procedural law is that of the utensil and fire in preparation of justice to be served to the litigant. Just as an efficient chef uses appropriate utensil and keep proper flame, an efficient Judge uses apt procedure to its necessary limit. No doubt the power of any procedural law depends on the knowledge, efficiency and integrity of those who implement it.
Notwithstanding some contra voice, The Civil Procedure Code was the procedure applicable to writs prior to the insertion of Explanation to Section 141 of C.P.C. by 1976 amendment. But even after the amendment, when situations arose, the constitutional courts found vacuum of procedure and was constrained to hold that principles of the Civil Procedure Code are applicable while exercising constitutional jurisdiction also. (Refer decisions of the Supreme Court regarding compromise, abatement, impleading parties etc.,) .In many special statutes Civil Procedure Code is incorporated by citation totally or partially. This will show the indispensability of the Code.
The Civil Procedure Code which had woven a web throughout the territory of India on the pillars of the civil courts of lesser and unlimited jurisdictions known by names, The small Cause Courts, Munsiff Courts, City Civil Courts, Subordinate Judge’s Court, District Courts etc., is one of the most important unifying force. The provision to transfer a suit, or of a decree obtained from any Civil Court in any State to any other Court in the country for implementation gives confidence to persons throughout the country to enter into transaction with another residing in any other part. Application of the Code is irrespective of any religion, caste or creed with equal force. Barring some necessary provisions, compassionate to women, farmers and the indigent, it treats every litigant equally. Equality of treatment among equals is sublime in every provision of the Code. One who fails to study and understand the social need and aim of a comprehensive and fair procedural law may complain that the Civil Procedure Code is an archaic and unnecessarily complicated procedure. On the contrary an enlightened Judge stated that, “The more you study the Civil Procedure Code the more you realize what an admirable peace of legislation it is”. (Attention is drawn to 2001 (3) KLT Journal Page 1).
The furor about the inefficaciousness of Civil Courts and the clamor to do away with the Civil Procedure Code is illinformed or shortsighted. The hope of common man in getting justice to the satisfaction of his ego, to protect his rights, power and property is through the Civil Court, which is within his reach. Weakening the Civil Courts system by blaming the Civil Procedure Code is an intentional act. Justice S.B.Sinha, Judge, Supreme Court in an address at the National Judicial Academy expressed anguish about the tribunalisation and the executive hijacking of the large chunk of judicial work. (The Hindu Daily Dt: 9th February 2009)
The jurisdiction of the Civil Courts in the matter of adjudication of the contract, security debts, consumer disputes, leasehold and tenancies, tortuous liabilities etc., are taken away in respect of matters in which the State, State owned Corporations, Banking Companies or Co-operative Banks etc., are against ordinary citizens. (Arbitration Act, Debt Recovery Tribunal Act, Securitisation Act, Revenue Recovery Act, Claims Tribunal Acts etc.,) The inequal treatment in the matter of Court Fee for powerful institutions like Bank is evident from fixing Rs.12,000/- for recovery of 10 lakhs, whereas an ordinary man before the Civil Court has to pay 10% of the claim. The fixation of exorbitant Court Fees in Civil Court is one way of preventing ordinary citizens approaching the Civil Court thereby grabbing the adjudication work to non-judicial forums undermining the constitutional basic structure of separation of power. Arbitration without following any procedure, Securitisation actions mercilessly initiated by Finance Managers without giving sufficient time to the debtor to save him from his indebtedness are depriving them of their valuable properties.
Important is the role of the Code in combating and preventing corruption. Its provisions for open trial, meticulous pleadings, service of summons, giving sufficient opportunity by setting aside exparte, discovery and inspection, production of document, settling issues, calling witnesses, adjournment, hearing, necessity of reasoned judgment, appeals, revisions, review etc., assure an independent trial and an impartial adjudication of the Lis.
In the wake of growing social inequalities and the consequent incapacity of citizens to protest and establish his rights, an alternative is to revamp the civil judicial system of the country to make all the judicial remedies available within the reach of common man at the District levels in ordinary Courts. The Tribunals be abolished, instead establish specialized Courts in all the Districts to adjudicate all types of disputes. From the District level Courts, an appeal to the Bench of the High Court and from the Appellate Judgment of the High Court a limited appeal to the Supreme Court giving finality. Vigorous training to the Judicial Officers, Advocates and Staff of the Courts reminding them of their duty of providing equal treatment to the litigant in a democratic system is absolutely necessary. The Civil Procedure Code, which served the justice delivery system of the nation well in the past century, requires only to be updated to meet the situation that arose due to the technological development and large-scale commercial transactions.
CPC. is not 100 Years But 149 Years Old
By N. Subramaniam, Advocate, Ernakulam
16/03/2009
CIVIL PROCEDURE CODE IS NOT 100 YEARS OLD BUT 149 YEARS OLD
(By N. Subramaniam, Advocate, High Court of Kerala)
1. The Code of Civil Procedure has its existence from 1859. Before the Code of Civil Procedure 1859, there was no codified procedural law applicable to the whole of British India. There were separate Regulations and Acts applicable to Courts in the Presidency and mofussil Towns. The first Code (Act VIII of 1859) did not apply to courts established by Royal Charter and it was made applicable to High Courts on their establishment in 1862. Code of 1859 applied only to mofussil Courts.
2. The Letters Patent of 1862, establishing High Court extended to them, the Procedure of the Code of 1859. The Charters of 1865, which empowered High Courts to make rules and orders, regulating proceedings in Civil cases, required them to be guided, as far as possible, by the provision of the Code of 1859 and subsequent amending acts. After 1859, there was Civil Procedure Code in 1861.
3. Next Code was Act X of 1877 and this Code repealed the Code of 1859. This was amended by Acts 18 of 1878 and 12 of 1879 and then superseded by the Code of 1882 (Act 14 of 1882). This was amended by Acts 15 of 1882, 14 of 1885, 4 of 1886, 10 of 1886, 7 of 1887, 6 of 1888, 10 of 1888, 13 of 1889, 8 of 1890, 6 of 1892, 5 of 1894, 7 of 1895, 13 of 1895 and later superseded by Code of 1908.
4. The Civil Procedure Code of 1908 not only defines and amends, but also consolidates the law of Civil Procedure. The very Preamble states so.
5. Consolidation means the fusing of many Acts into one. (see 33.C.W.N 1077 = 1930 Cal. 225]. Reference to previous state of law is permitted only when there is ambiguity. (see ILR 29 Cal. 788 P.c) (ILR 20 Mad. 97)
6. This Code of 1908 is not exhaustive. But it should be treated as exhaustive on points specifically dealt with therein. (see ILR 29 Cal. 707 P.C))
7. When there is no specific provision in the Code, Courts should be guided by justice, equity and good conscience.
8. Even if Civil Procedure Code is not made specifically applicable, courts can invoke and use C.P.C. [Workmens Compensations Act; Industrial Disputes Act, Motor Vehicles Act, Co-operative Societies Act; Income Tax Act are examples where C.P.C. can be invoked]. Foreigners are not exempted from the operation of the Code (1903 ILR 26 Mad. 544; P.C. 1927 All. 413). (However, Insolvency Act 111 of 1909, Testamentary and intestate matters are covered by Indian Succession Act 1925, Matrimonial matters by Indian Divorce Act, Hindu Marriage Act, Special Marriage Act.).
9. Various Princely States had their own Code of Civil Procedure. The Code of Civil Procedure V/1908 was extended to the whole of India, (except tribal areas of State of Assam, some schedule areas in the State of Madras, State of Jammu and Kashmir and State of Manipur, by S. 2 of C.P.C Amendment Act 1951 (Act 11 of 1951) which took effect from 1.4.1951 as per notification of Government of India dated 7.3.1951).
10. Under S.122 of the Code of Civil Procedure power is given to certain High Courts to make Rules and such rules made by High Courts become part of the Code. (See. AIR 1980 SC 591 - (1980) 1 SCC 198). One-example of an amendment made by Kerala High Court is in Sub-r. 2 in R. 92 in O.XXI, by which 60 days was substituted in place of 30 days for deposit of amount under O XXI R. 89. This was by amendment published in Kerala Government Gazette No.6 dated 09.02.1988.
11. It is interesting to note that almost all the matters now covered by the various sections in the Code of 1908 were there in the Codes of 1859, 1877 and 1882.
12. A very interesting case is reported in Vol III of Madras High Court Reports (1866, 1867 and 1868) at page 4 (Judgment is dated 6.1.1866).
Sri. Raja Sitarama Krishna Rayadappa Ranga Raz Bahadur Garu, Zamindar of Bobbli v. Sri. Raja Sanyasi Razu Pedda Balliyara Simgulu Bahadur Garu, Zamindar of Salpur.
In this case a ZAMINDAR sought to recover Rs.60,000/- from another Zamindar because in a petition addressed to a District Munsiff, he called him what he was really without adding honorific “Garu”.
Justice Frere and Justice Holloway held that the omission of a mere courtsey cannot be taken to be equivalent to slandering or libelling a man and is not an actionable wrong.
Another erstwhile journal of repute is Citator, which had 6 Volumes.
The following jotting is extracted from Citator Vol. 3 (January to June 1908).
Mr. Robinson was a learned and eminent lawyer. He used to tell a story in which he acknowledged that the only witness who ever made him throw up his hands and leave the Court Room was an Irishman.
Mr. Robinson, at that time was counsel for one of the big railroads. A section hand had been killed by an express train and his widow had sued for damages. The railroad had a good case, but Mr. Robinson made the mistake of trying to turn the main witness inside out.
The witness in his quaint way had given a graphic description of the fatality, occasionally shedding tears and calling on the saints. Among other things, he swore positively the locomotive whistle was not sounded until after the whole train had passed over his departed friend. Then Mr. Robinson thought, he had him.
“See Mr. M.C. Ginnish said Mr. Robinson, you admit that the whistle blew."
“ Yes, sor; it blew, sor.”
“ Now, if that whistle sounded in time to give Michael warning, the fact would be in favor of the company, wouldn’t it ?”
“ Yes, sor, and Mike would be testifying here this day.” The jury giggled.
“ Never mind that. You were Mike’s friend, and you would like to help his widow, but just tell me now what earthly purpose there could be for engineer to blow that whistle after Mike had been struck ?”
“Presume that the whistle was for the next man on the track, sor. Mr, Robinson retired, and the widow got all she asked for."
(sor is seen, typed in “The Citator” instead of Sir)
Yet another decision worthy of note is reported in W.R. (Sutherland) Vol.26 Page 26 dated 20.03.1873, by 5 Judges Bench Privy Council.
Newab Mulka Jehan Sahiba and others v. Mahomed Ushkurree Khan and another.
In the absence of evidence to the contrary, the presumption of Mohammedan Law is that a girl attains puberty when she reaches the age of 9 years.
The Sunnies hold marriages by minors to be voidable only (i.e., complete, unless avoided) by dissent to be declared by the girl as soon as puberty is developed.
The Sheaits, on the other hand, hold that they are ‘fasoolee’ only, and incomplete until ratified by assent. The marriage of a minor is binding and irrevocable if contracted by the father or grandfather, but not when contracted by guardians of a lower degree, as the mother or grandmother, who can only contract a ‘fasoolee’ marriage - A ‘fasoolee’ marriage requires the assent of the minor, after attaining puberty and mature understanding, to perfect it; there being evidence either of express assent or of facts from which it may be presumed. Unless the assent of a girl after attaining puberty can be shown or presumed, the marriage is imperfect, and can create no rights or obligations.
The acknowledgement of the legitimacy of a daughter affords a strong presumption in favor of the right of her mother to inherit from her.
Legal Education in Kerala, Problems and Perspectives
By Lina Acca Mathew, Asst. Professor of Law, Government Law College, Ernakulam
16/03/2009
Legal Education in Kerala -- Problems and Perspectives
(Lina Acca Mathew, Lecturer, School of Legal Studies, CUSAT)
The legal education scenario in Kerala is in definite need of improvement. With the throwing open of the economy of our State to corporate powers from outside, the resultant new economic order and subsequent reversal of the old status quo prevalent in our State, it is the need of the hour that our legal profession wakes up to the necessity of providing global standards of legal services to the new clientele that are visiting our shores in need of top quality legal services. Reformation at the grassroots level has to begin, which is within the classroom itself. Hence the need to equip our classrooms with facilities for ensuring quality legal education.
The 184th Report of the Law Commission of India on The Legal Education & Professional Training and Proposals for Amendments to the Advocates Act, 1961 and the University Grants Commission Act, 1956, December, 2002 contains a chapter on the Standards of Legal Education, Legal Skills and Values (Mac Crate Report) and New Globalization Challenges and Accreditation1. This paper dwells upon issues within and in furtherance to the general standards laid down in this Report for the entire gamut of the Indian legal educational system. However, it is confined specifically to the Kerala context.
To begin, some of the problems faced in our legal education system in Kerala are:
1. Absence of trained personnel to teach interdisciplinary subjects of relevance in the globalized context: LL.M. qualified hands alone are inadequate in imparting comprehensive knowledge to students in the areas of corporate laws, technology-based laws, environmental law etc. The services of trained personnel in other disciplines are needed for providing effective education to law students in these areas. This deficiency is most evident in the lack of qualified personnel to teach technical aspects of emerging technology-based laws like cyber law. As a result, law students in Kerala emerge with insufficient in-depth knowledge to comprehend and handle complicated issues in the globalized economy.
2. Almost total absence of the street law experience: The ultimate aim of law in a civilized society is to ensure that justice reaches all. Since this means that justice should prevail even in the streets- among the downtrodden of society- hence the terminology ‘street law’. The absence of socially relevant legal education results in suppression and ignoring the call of justice to act in various social situations. Lawyers graduate from law school with a motive of making money from the profession, and treat human rights law practice with contempt, as money cannot be made by advocating for the poor and marginalized. This has the net effect of denial of justice to the deprived sections of society, which goes against the ideals upheld and guaranteed by the Indian Constitution.
3. Lack of knowledge of legal process among our fresh law graduates: Most students come out of our ordinary law colleges in Kerala none too wiser as to how to the actual process of law. Years are spent merely acquiring book knowledge of substantive and procedural law. One month or so devoted to court practice, though incorporated into course structure so as to give a feel of everyday litigation to the student, is actually a meaningless exercise as the average student barely understands what is actually going on in court. Hence the fresh law graduate is at sea as to the various dimensions of the legal process. It is a fact that lawyers graduating from universities in our State find it hard to secure entry into out-of-State top advocacy and corporate legal firms as well as companies. This is because the legal profession in our State does not exhibit the professionalism shown by certain law institutes in the nearby States of Karnataka, Andhra Pradesh, Tamil Nadu and Maharashtra.
4. Poor quality of advocacy among majority of lawyers in the State: The art of advocacy is not taught in detail by our law teachers, and is hastily mentioned in a single course combining Legal Drafting, Conveyancing, Professional Ethics and Advocacy. Specialization in the art of drafting, conveyancing, cross examination, persuasive speaking etc are available only to a privileged few who are fortunate enough to practice under an experienced senior advocate. In countries like the UK, USA and Canada, the undergraduate curriculum itself provides a course on trial advocacy. Lack of precise knowledge of the art of advocacy results in haphazard handling of cases and deprivation of justice to the client. This has serious repercussions, as people lose faith in lawyers and in the whole justice-delivery system. Thus it hits back upon the very system of the rule of law in our country.
5. Inferior quality of teaching culture in our State: The lackadaisical culture prevalent among law teachers in teaching their students is a phenomenon prevalent in the law colleges of in our State. Most teachers give the excuse that students are not interested in learning, hence their “why bother” attitude. Often, however, it is only a minority of students who are wayward, while majority come to college with the intention to study itself. Another problem is the lack of research orientation among our teachers. This results in them not being up-to-date as to new propositions of case law as well as emerging streams of legal thought. The lack of quality teaching has resulted in inferior quality of graduating students in Kerala compared with those of other States in India.
My suggestions in this regard are that law institutes should coordinate with experts from other disciplines who have sound knowledge on the legal dimensions of their respective areas. For example, a chartered accountant will be able to teach students more effectively on current aspects of banking law, taxation laws and company law. Only a computer professional with definite knowledge on cyber law issues can make cyber law classes meaningful to the law student. A maritime expert to deal with aspects of maritime law; labour welfare officers
to the law student. A maritime expert to deal with aspects of maritime law; labour welfare officers to speak on their experiences in handling labour problems - which is of special relevance in training for Alternate Dispute Resolution2; human rights activist/lawyers to enunciate on everyday human rights and women’s rights violations are other examples to connect the letter of the law with the spirit behind the law and make legal education socially and globally relevant.
Sensitization of law students to human rights issues must take place from the first year of their undergraduate studies itself. A separate legal aid clinic is a must in each law college, with a teacher in charge of activities which have to take place on a weekly basis itself. Activities must include visiting a rural or slum area, listening to the grievances of the common man, giving advice as to the redressal of these grievances as well as taking steps to help ameliorate their problems. Enlisting the help of NGOs and other institutions/individuals involved in social work in order to identify problematic areas as well as for the resolution of problems will make such exercise more fruitful. Staging of street plays, involving with panchayat level legal aid/education camps, rendering legal education classes at local schools are other steps in this direction.
Promoting a culture whereby the student volunteers to work during his holidays for a lawyer/law firm/social work institution or NGO is a step to be taken to make our law students at par with those graduating from other States. Just as in the National Law Schools, law colleges are to create a special cell for Holiday Placements whereby a teacher coordinates with lawyers/law firms/NGOs and introduces and negotiates in placing every student volunteering to take up a holiday placement.
A serious look should be made into the legal curriculum prevalent in law schools of foreign countries where the undergraduate curriculum itself provides a course on evidence and trial advocacy. Experiences gained in both classroom and clinical settings teach students to develop and polish the skills trial lawyers require most: the ability to analyze and master a trial file; construct a case theory; organize, prepare, and deliver crisp examinations and speeches; make persuasive, interesting points in innovative ways; and take control of the courtroom. Thereby our educational system can incorporate techniques aimed at improving the quality of advocacy in the Kerala legal practice. Working lawyers and retired judges could be employed part-time as adjunct faculty to discuss the modus operandi of brilliant lawyers with law students. This will be in accordance with the recommendation laid down by the 184th Report of the Law Commission of India to recruit adjunct teachers from the Bar and the Bench, as “those with relevant experience are far better teachers on the whole than those whose knowledge is largely academic3.”
Learning the law will be more fruitful by improving the teaching technique employed in law colleges. Lectures are the most widely and traditionally used means of teaching as it is both learning and cost effective. But this does little to involve, excite or empower students. Other methods of group work, realclient clinics, use of video, simulations and demonstrations etc have to be used to make the learning process more meaningful. Making teachers more accountable to students, by providing for student assessment of teachers’ performance in their respective subject at the end of each term is another informal method employed in top law schools in India and abroad. This system acts as a check on the arbitrary and negligent attitudes of teachers, as well as provides an incentive to the teachers to improve their technique of delivery of information. Enforcing an academics-oriented culture whereby all law teachers need be lecturers as well as researchers is another method whereby superior performance by our teachers can be ensured.
A study published recently by the Griffith Law School reiterates the importance of group work4. This model of learning is called constructivism, in contrast to the traditional vicarious learning/self teaching model. This approach formed an integral part of the formal undergraduate curriculum at Griffith Law School since its establishment, conceived and first developed by Marlene Le Brun, a chief exponent of the Global Alliance for Justice Education. It has been successfully found out through this study that there are various academic, social and pragmatic advantages in group work. The results of this study are very relevant towards the Indian context where traditional teaching tools dominate. The study advised that group work should be integrated throughout the LL.B, curriculum and this should be given a relatively high weighting in assessment in order to justify and underline the importance of the considerable effort that students must put into group work.
To conclude, bringing in a justice-centered educational system takes place in two ways-one, in terms of substantive law, and the other, in terms of delivery of education.
In terms of substantive law, our legal education system in Kerala has already woken up to the call of justice for the common man by including subjects like human rights, women and the law, environmental law etc in its curriculum. What needs to be incorporated are full fledged legal-aid clinics, which provide means of fostering the system of street law as well as acting as venues of improving advocacy skills by providing real-client interactions for the future lawyers.
In terms of delivery, much has to be improved upon. Ensuring justice to the students needs to be done by bringing in adjunct teachers from the Bench and Bar, as well as trained personnel to teach the interdisciplinary subjects of global relevance, especially in the fields of technology-based and corporate laws. Improving the quality of teaching tools by making lectures more interesting; providing for informal teacher assessment at the end of each term; providing venues for socially responsible activities which also serve to mould lawyering skills among students, thus channelising their exuberance and energies towards constructive and creative activities - instead of allowing such energy to be utilized towards college strikes and antisocial behaviour which is the norm among law students in Kerala; designing compulsory courses on the constructivist model, as well as coordinating holiday placement programs for the students with lawyers, law firms, companies and social institutions so as to equip the law students of our State with tickets to a bright future in the legal profession, are the other steps which can be taken to ensure a justice-oriented education to our law students.
Foot Note:
1. Chapter V, 50-61, http://lawcommissionofindia.nic.in/reports/184threport-PartI.pdf
2. Chapter VI, 184th Report of the Law Commission of India on The Legal Education & Professional Training and Proposals for Amendments to the Advocates Act, 1961 and the University Grants Commission Act, 1956, December, 2002, 62-68 http://lawcommissionofindia.nic.in/reports/184threport-Partl.pdf .
3. Chapter VII, 70 http://lawcommissionofindia.nic.in/reports/184threport-PartI.pdf.
4. Keyes and Burns, Group Learning in Law 357-382(2008) 17 Griffith LR