Enrollees, Your Attention Please

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

It was while I was experiencing aridity for a subject to write on, I came across a news item in the morning dailies of May 5, 2008 (Monday) that 214 law graduates were enrolled/ by the Bar Council of Kerala, as Advocates on the previous day, May 4, 2008 (Sunday). I immediately remembered that May 4, 2008 was the first Sunday of the month May; and, every year the first Sunday of the month May is considered to be World Laughter Day. So, cheers to you, the enrollees.

'Enrollee' is not a commonly used word. Oxford, Cambridge, Macrnillan, Webster, Longman, The American Heritage and Universal Dictionaries do not contain such a word. But, World Book Dictionary traces the origin of the word to Wall Street Journal, and gives the meaning as "a person who enrols in a group as a member", with hope and ambition.

So get set for advocacy, you, the two-hundred-and fourteen lawyers, the legal profession's 'Generation Next'.

You have come to the legal profession on the World Laughter Day, with great expectations. On more occasions than one, I have had the privilege of being Chief Guest at the enrolment of Advocates by the Bar Council of Kerala. I had also delivered Pre-enrolment Lecture under the joint auspices of the Bar Council of Kerala and the Indian Law Institute, Kerala Branch. I had started the Pre-enrolment Lecture, delivered on 28-3-1992, as follows: "When you wake up on the morning of tomorrow, you would say, as the hero of 'The Good Earth said: 'Today is the day'. For Wang Lung, the hero of Pearl Buck's Pulitzer-prized Novel, it was the day of his marriage; for you, tomorrow is day one, on which you go for earning from learning.....I shall today tell you what you want to know, not only what you want to hear, but the role of lawyers, their duties, manner of functioning, advocacy and accountability. It is important that you know them before you 'dress up for a pantomime and speak in a language that layman cannot understand', as David Pannick said.... Therefore the necessity to know well your position before you take to legal vernacular".

In my address, as Chief Guest, on the occasion of the enrolment of Advocates, on 28.12.1998, I said: 'Have you seen God', was the question raised by Narendra (who later became Swami Vivekananda) when he met Sri Ramakrishna Paramahamsa, to which the reply was: 'If you take efforts, I shall try to help you'. The message of Sri Ramakrishna. was 'search for God'. Reframing Narendra's question, if you ask me: 'Have you seen Hortensius', I would venture the same reply: 'If you take efforts, I shall try to help you'. (Mark, Hortensius, according to Cicero, was the greatest of advocates).... Today is the day on which you are expected to know the rise and fall of the legal profession.... I am now delivering a carefully drawn up script. It is in the direction of an 'Operation Save Profession'. My views may be considered ponderous....."

Again, in my address, as Chief Guest, at the enrolment, held on 8.4.2001, I had said: "You are upbeat on your upcoming enrolment as advocate. This is the right time for you to know the locus of the problems facing the profession, though my expressions may not be music to your ears. I should think, everything is not hunky-dory with the legal profession.! Before venturing to gather the items in your wish-list, you have to take stock of the] profession's present position; and take steps to finetune the bar.... I should think, today; one becomes a lawyer all-on-a-sudden.....You have to work as a junior under a senior for a: tariff period.... The difference in years of practice between a senior and a junior, these days, is only a few months".

You may think I am mis-measuring the legal profession, especially at a time when, immediately after your new incarnation as advocate, you may be feeling as if you are on the roof of the world. You may hold your expectations; but make work speak for you. Set a measure for yourself. Remember, a culture of instant gratification, instant gains and instant rewards, is making the world go round. Advocacy is not a diet for fertility. Advocacy is no belly-dance. There is, indeed, heavy lawyer volume, especially, in Kerala, just as heavy traffic volume. Juniors will have to ride the opportunity. You should perform to your potential in every case, avoiding slip-ups. In due course, there will be an automatic short-listing, and one knows not how many among the 214 would find place in that list. That apart, there will be corporate hijack of lawyers also. In court, you will have to suffer more questions than answers. You should even be prepared to answer a question like; 'How the Zebra got his stripes'. Try to avoid judicial stroke. Advocacy sans legal learning will never pay.

Law is to be interpreted, understood and absorbed, both by lawyers and judges. If you, do not have your mind over matter in all cases, you nay possibly start feeling that the court is not the best place to be. Advocacy is not curative music. You do not submit your 'wish list' before court.

Set a measure for yourself; be a real winner. Feel happy if you are accused of committing 'advocacy'. Lawyers are the cast and the crew of the legal profession. A lawyer cannot expect solatium for his failure in the case. Also, there is no 'Orange Cap' for a lawyer who wins the maximum number of cases. To be a good lawyer, you do not require an apex chamber. There may be irritants in Bench-Bar relationship, resulting in Bench-Bar blues. Sometimes we see lawyers and judges making much ado about nothing. It is not the duty of a lawyer to try to please a Judge by 'as you like it' submissions. It does not pay to be a sycophant. Do not keep your pulp 'bottled'. A lawyer is not a bottom-dweller in court. There is neither Nobel, nor Oscar for advocacy. And, mark, Nobel is awarded even to the one who finds that the finding for which Nobel Prize had been awarded earlier to a person was wrong.

A lawyer's script for success is anchored in his drafting of pleadings. Preparing or settling brief is an art. So is arguing cases. Advocacy is not piercing eloquence. Some lawyers argue for eternity, in a fashion akin to wild rhino chase - unbearable onslaught of advocacy, losing stopper's stop. Be 'an honest Puck'. Do not try 'to be a Hercules', or a devil bearing a divine name. Steamy encounter in court between lawyers, or between lawyer and Judge, is no real advocacy; nor is stunning onslaught of the opposing lawyer, correct advocacy. Do not try to outperform the Judge. Do not subject advocacy to market risks. Do only what is doable.

The legal profession seems to be in hide, or ill in bed; and, if this be the state of affairs, what little lingering reputation our profession is having, will go fathoms deep.

I have indelible impressions of superb advocacy by the greats in the profession. It is difficult to explain that age to you this day, for no 'wagon-wheel' is maintained for the legal profession. Today one finds a laugh in counsel's argument, not seriousness. Today we have only the 'snapshots' of the great profession. The legal profession has started looking for a lost race-horse.

Daniel Webster, Disraeli, Sir Edward Clarke, Lord Atkin and Lord Hailsham considered the profession of law as a great profession. Lord Hailsham, especially, in his 'Sparrow's Flight', said that he had never ceased his sense of loyalty to the profession to which he belonged and that he has never ceased, to the best of his ability, to maintain its traditions and promote its interest.

I can only conclude by reiterating what I said on 8.4.2001: "Try to become a front man of the profession. And, be proud of your own calendar and culture, remembering that law practice is not a job. I wish and pray, every junior lawyer be blessed with the talent to manage his own profession in an extraordinary manner. Who dares, wins. At the end of the day, I should think that the legal profession is a great, glorious, noble profession. And, if there is a rebirth for me, and if I am asked what type of birth I would like to take next, my answer would be: 'I wish to be reborn a lawyer only' ", though I have started moving from substance to shadow.

I wish you value-added success in your tryst with advocacy.

The Law and Bench of High Court under the Constitution of India

(By O.V. Radhakrishnan, Sr.Advocate)

Under the Constitution of India, High Court is the supreme judicial institution and superior court of record of the State Judiciary. Art.214 of the Constitution of India directs that there shall be a High Court for each State. All the High Courts enjoy the same status although they do not constitute a single all India judicial cadre. A Judge is appointed to a particular High Court. But the President may transfer a Judge from one High Court to any other High Court in exercise of the power under Art.222(1) of the Constitution. A High Court is constituted on the appointment of Chief Justice no matter other Judges are appointed or not. The Chief Justice can perform his duties and also discharge his function as a Single Judge in the absence of other Judges. "The Judges of a High Court owe their responsibilities and discharge their functions in relation to that High Court only. They have no constitutional connection and no legal relationship with the body of Judges of any other High Court" (S. P. Gupta v. Union of India (1981 (Supple) SCC 87) per Pathak Judgment.). Therefore, there shall be only one High Court for each State and each High Court is independent and indivisible. Exception is made in Art.231 for establishment of a common High Court for two or more States or two or more States and a Union Territory. Its integrity as a court of record shall be preserved having realistic regard to the setting and scheme of the Constitution.

"High Court" is defined under Art.366(14) of the Constitution to mean any court which is deemed for the purposes of the Constitution to be a High Court for any State and includes -- (a) any court in the territory of India constituted or reconstituted under the Constitution as a High Court, and (b) any other court in the territory of India which may be declared by Parliament by law to be a High Court for all or any of the purposes of the Constitution. The above definition of High Court contemplates constitution or reconstitution as a High Court under the Constitution and declaring any other Court by the Parliament to be a High Court, but does not behold a Bench of a High Court. A Bench or a Division of High Court is outside the web of the Constitution. Therefore, providing a Bench to a High Court outside the seat of a High Court is legally impermissible and has no constitutional warrant. It is above the reach of competent legislation.

Art. 130 of the Constitution provides that the Supreme Court shall sit in Delhi or in such other place as the Chief Justice of India may, with the approval of the President, appoint. Art. 130 of the Constitution also does not empower to constitute or establish permanent Bench/ Benches in such other place or places but can only hear cases in such other place or places appointed by the Chief Justice of India with the approval of the President. Identical provision is conspicuously absent in respect of High Courts in the Constitution. Necessarily, to put on the language of Arts. 214 and 216 read with Art.366(14) rational meaning, it does not need research to show that power to set up a Bench of the High Court in other places outside the seat of the High Court is pro-tanto excluded. Any interstitial law making extending to direct conflict with express provisions of the Constitution or to ruling them out of existence is a misuse of power in bad faith.

The Parliament enacted the States Reorganization Act, 1956 to provide for the reorganization of the States of India and for matters connected therein. S. 51 of the Act relates to principal seat and other places of sitting of High Courts of new States which is quoted hereunder :-

S.51 (1) - The principal seat of the High Court of the new State shall be at such places as the President may by notified order appoint.

(2) The President may, after consultation with the new Governor of the new State and the Chief Justice of the High Court of that State, by notified order, provide for the establishment of a permanent Bench or Benches of that High Court at one or more places within the State other than the principal seat of the High Court and for any matters connected therewith.

(3) Notwithstanding anything contained in sub-s. (1) or sub-s. (2), the Judges and Division of Courts of the High Court for the new State may also sit at such other place or places in that State as the Chief Justice may, with the approval of the Governor, appoint.

The above provision was designed to provide for the disposal of cases pending before certain High Courts and Benches, which under the provisions of the Act, were ceased to! function at particular places. According to S. 51 (2) of the Act 1956, it is within the province of the President to establish a permanent Bench of a High Court with a separate Registry after consultation with the Governor of the State and the Chief Justice of the respective High Court. In a Bench decision in Manickan Pillai Subbayya Pillai v. Assistant Registrar, High Court of Kerala, Trivandrum(1958 KLT 280.)  the High Court of Kerala has held that" the Trivandrum Bench is not the High Court of Kerala is apparent from a mere perusal of S. 51(3) of the States Reorganization Act which states that the Judges and the Division Court of High Court for a new State may also sit at such other place or places in that State as the Chief Justice may, with the approval of the Governor, appoint. It is the Judges and Division Courts of the High Court of Kerala and not the High Court itself that sits at Trivandrum". It has also been held therein that "the principal seat of the High Court under S. 51(1) of the Act is the place where the High Court as a whole functions in all its capacity. The High Court as such is located there, and though the word 'sit' can be used in relation to a Court to denote its location (See Art. 130 of the Constitution and S. 6 of the Travancore-Cochin High Court Act and the marginal notes thereto) it is ordinarily used especially in connection with 'Judge' or 'Division Court' to denote sitting for the purpose of hearing cases". The Division Bench went on to hold that "the Trivandrum Bench can only hear and dispose of such cases as are directed to be posted before it by the Chief Justice. It cannot do anything else on behalf of the High Court, and in particular, it cannot receive cases".

In State of Maharashtra v. Narayan(AIR 1983 SC 46)) the Hon'ble Supreme Court has held that "it is difficult to comprehend how the Chief Justice can arrange for the sittings of the Judges andDivision Court at a particular place unless there is a seat at that place. It may be true in thejuristic sense that the seat of the High Court must mean "the principal seat" of such HighCourt, i.e., the place where the High Court is competent to transact every kind of businessfrom any part of the territories within its jurisdiction. It is impossible to conceive of a HighCourt without a seat being assigned to it. The place where it would sit to administer or, inother words, where its jurisdiction can be invoked is an essential and indispensable featureof the legal institution known as a Court". The Apex Court in the above decision did notapprove the view taken by Raman Nair, J. (as he then was), in Manickan Pillai's case speakingfor the Court that the Trivandrum Bench was not the High Court of Kerala and the Judgesand Division Courts sitting at Trivandrum could hear and dispose of only such cases as maybe assigned to them. The Apex Court preferred the view expressed by Chagla, C.J inManjidana's case⁽Seth Manjidana v. Commissioner of Income Tax, Bombay (Civil Appeal No. 995 of 1957 (Bom.) decided on July 22, 1958).⁾ that the Judges and Division Courts at temporary bench establishedunder Sub-s.(3) of S. 51 of the Act function as Judges and Division Courts of the HighCourt at the principal seat and while so sitting at such a temporary Bench they may exercisethe jurisdiction and power of the High Court itself in relation to all the matters entrusted tothem. In the above judgment considered and decided by the Supreme Court there was nochallenge to the vires of S. 51 of the States Reorganization Act. Therefore, the decisionrendered in Stare of Maharashtra v. Narayanan turned on the provisions in the StatesReorganization Act and the question whether S. 51 of the States Reorganization Act to theextent it permits establishment of permanent Benches of High Courts at one or more placeswithin the State other than the principal seat of the High Court, collides with the constitutionalscheme remained unaddressed and undecided.

In Federation of Bar Associations in Karnataka v. Union of India ((2000) 6 SCC 715.) the Apex Court observed that it is inexpedient to be provided different Benches for the High Court located in different regions. To quote "Apart from the heavy burden such a Bench would inflict on the State exchequer, the functional efficiency of the High Court would be much impaired by keeping High Courts in different regions. When the Chief Justice of the High Court is a singular office, and when the Advocate General is a singular office, vivisection of the High Court into different Benches at different regions would undoubtedly affect the efficiency of the High Court".

Art.231 begins with a non-obstante clause and empowers the Parliament to make law to establish a common High Court for two or more States or for two or more States and Union Territory. The above Article operates as an exception to Art.214 and 216 by empowering the Parliament to establish a common High Court for two or more States and a Union Territory by force of the non-obstante clause provided at the beginning of that Article. That Article at any rate, does not empower the Parliament to make law to constitute or establish a Bench/Benches of a High Court, Arts.214 and 216 notwithstanding. It is obvious that the Constitution makers did not intend to provide Bench or Benches to High Court to preserveand to protect its integrity as a Court of record. The language used in Art.216 of the] Constitution is not similar to that used in Art. 130 as found by the Apex Court in Union on India and others v. S.P. Anand & Ors ((JT 1998 (5) SC 359).)

The States Reorganization Act is made in exercise of the constitutional power under Art.3 of the Constitution of India. Constitution, organisation, jurisdiction of High Courts fall outside the scope of Art. 3 of the Constitution. Constitutional powers can be exercised only in respect of matters specifically assigned in the Constitution. It may therefore, be seen that provisions in S. 51 of the States Reorganisation Act in so far as it empowers establishment of a permanent Bench or Benches to the High Court at one or more places within the State other than the principal seat of the High Court does not fall within the confines of Art.3. Hence it would be wrong, to give the impression that the constitutional provision in Art.214 got modified by S. 51 of the States Reorganization Act and the legal aspect in question covered by S. 51 of the States Reorganization Act. It cannot be legally argued that S. 51 of the States Reorganization Act is 'reasonably incidental' to or consequential upon, those things which the Constitution has authorised under Art. 3 of the Constitution.

The solution lies with the Parliament to exercise its constituent power under Art.368 of the Constitution. The only question is whether the High Courts do need different Benches in the interest of the general or litigating public?

To this question I return a negative response.

I conclude, borrowing the observations of Thomas J., in the Judgment in Federation of Bar Associations, Karnataka case ((2000) 6 SCC 715) "the question of establishment of a Bench of the High Court away from the principal seat of the High Court is not to be decided on emotional or sentimental or parochial considerations".