Quality Not Quantity

(By K. Ramakumar, Advocate.)

The Chief Justice of India recently made a fervent plea for increasing the number of Judges based on population. He attributed the inordinate delay and huge pendency of cases to shortage of Judges. Though the beloved Chief Justice has a presentable point, numbers necessarily do not make matters better. Quantity is a poor substitute for quality. The ratio suggested by the Hon’ble Chief Justice should be not with reference to the whole population but of the litigant public just as the Motor Vehicles Act takes care of the travelling public and not the general public. And the large under­privileged of our country does not fall within the litigant public.

We had Judges in the past who could dispose of all the cases in the cause list and ask for more. For instance, Sri Justice M.P.Menon could dispose of more than 100 cases a day doing full justice to the cause. If quality counted he should have reached the Supreme Court like the other two legal luminaries from Kerala Justices Mathew and Krishna Iyer. And my revered teacher, Justice Sri M.M.Ismail, an eminent scholar who had done an excellent piece of literature on ‘Ramayana’, did not make it to the Supreme Court as he rightly and stoutly refused to take care of an anonymous allegation emanating from envious quarters. Another Kerala Judge, Sri N.D.P.Namboodiripad who used to rise early from Court everyday was disposing off as many as thirty cases a day and could make available the Judgments the same day. We had Chief Justice Sri Raman Nair before whom, a Chief Minister trembled but a greenhorn and a giant in the Bar were treated alike and who permitted arguments at any length, but found time to dispose of as many number of cases as possible. What our judiciary now needs, is judges of this caliber. Numbers do not always do duty for dedicated and devoted work.

Even now we have judges who take their job very seriously and start sitting before time and rise long after the ring of the bell trying their level best to grapple with the arrears. Unlike Bihar and U.P High Courts, where Election Petitions are boarded for trial well after three years, our High Court can take pride of the fact that all election petitions are disposed off at least within an year. Alas, yet there are alarming figures of arrears.

The blame for arrears falls also on the shoulders of the Lawyers along with lack of skilful Court management. There are lawyers who are in deep love with their own voices enjoying interminable arguments much to the annoyance and discomfiture of Judges. And then there are “sound” lawyers too. It has to be ensured that at least in an institution like the High Court long address on unnecessary facts shall be avoided. Except in appeals on facts, Civil or Criminal, it is time that the High Courts all over the country shall insist on formulation of questions of law not only in pleadings but also in oral arguments. No argument shall be permitted except on questions of law unless that much facts for appreciating the questions of law are needed to be elaborated. The present system of stating only facts and no law at all shall not be countenanced any longer particularly in these days of advanced information technology. Lawyers shall be compelled to stick to the rule of relevance.

The method adopted at the time of admission of new cases also needs streamlining. Posting of cases for admission is governed by the High Court Rules. They do not provide giving time to get instructions to the Government Counsel as is commonly done now with repeated requests for adjournments, which consume much of the time of the Court, elongate the cause lists and exasperate the litigants. Instead Government Counsel are expected to study the questions of law and be ready to answer them. To decide whether a case should be admitted or not, no adjudication on facts is called for at the initial stage. Experience tells that the system of granting time for instructions, then a statement, followed if at all by a belated counter affidavit consumes a major share of the time of Admission Courts, leaving the court with little time to take up even emergent matters. This is an area calling for imminent emendation.

Priority in posting of cases should receive a second look. There are cases, which become infructous if not heard within a time frame. In view of the computerization of the High Court it will not be difficult to locate those cases, identify them and post them with priority. Cases of senior citizens, members of the Scheduled Caste/Scheduled Tribe also should receive priority. Cases in which substantial stake of the State is involved also should fall in that category. Litigants do not approach the High Court to be told after five years that the case has become infructous. In fine, the time has come for revamping the system of Court management and to provide succour to the litigants who still look upon judicial institutions alone as the last resort and the only hope in protecting their right. Brother and sister lawyers, don’t you want your High Court to be an institution of excellence, a place to be proud of and an effective instrument of social engineering? I am absolutely certain that this can be done and should be done.

Faulty Sentencing  Policy

(By S.A. Karim, Advocate, Thiruvananthapuram)

S. 427, Criminal Procedure Code, speaks about sentence on offender already sentenced to another offence. Under sub-section one, the first prison sentence is for a term. The second one starts at the termination of the first one, unless the court permits. Under sub-section two, the first prison sentence is for life. The second prison sentence goes along with the first. Relevant portion of S.427 reads-

(1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment shall commence  at the  expiration of the imprisonment to which he has been previously sentenced, unless the court directs that the subsequent sentence shall run concurrently with such previous sentence.

(2)  When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.

It seems the prison sentence for a term gets harsh treatment second time and sentence for life first time gets easy treatment second time. Prison sentence under sub-section one is consecutive and under sub-section two is concurrent. To this extent S. 427 is faulty.

Breach of Orders under the protection of 
Women from Domestic Violence Act

(By Cyril Joseph Koyippally, Advocate Alappuzha)

Effect of breach of Orders under Protection of Women from Domestic Violence Act is being widely discussed.

Though it is generally observed that violation of protection order only is made an offence under S.31 of the Protection of Women from Domestic Violence Act, I think it is not correct to say so.

When we read R.15 of the Protection of Women from Domestic Violence Rules 2006 it is seen that resistance to the enforcement of the orders of the Code under the Act by the respondent or any person purportedly acting on his behalf shall be deemed to be a breach of protection order or an interim protection order, covered under the Act and it is further envisaged that breach of a protection order or interim protection order  shall immediately be reported to the local police station having territorial jurisdiction and shall be dealt with as a cognizable offence as provided under Ss.31 and 32 of the Act.  Then it is clear that resistance to enforcement of any orders of the Court under the Act as stated in R.15(7) shall be a cognizable and non-bailable offence.

Yes, it is an ornament for the needy and those who suffers. But for those who utilise it to fulfil their hidden motives no doubt it is a garland in Monkeys hand.

'Umadevi’ Electrocuted

(By T.P. Kelu Nambiar, Sr. Advocate)

A layman or a non-practising lawyer may not mind. But I am very much concerned, because I have not yet started sitting on the side-lines of the legal profession; I still wear my pride on my black gown. I am writing with justifiable regret.

Though I did not put my hands together in approbation of the decision of the Constitution Bench in Secretary, State of Karnataka v. Umadevi ((2006) 4 SCC 1), I should have thought that the Five-Judge-Bench judgment is a durable judicial pronouncement, not a mere commodity. In fact, everybody seemed to raise a toast to Umadevi, thinking that Umadevi stands firm on the line of control.

When Umadevi made her first appearance before the Supreme Court, in 2003, a Two-Judge-Bench noticed that on the aspect of regularisation of ad hoc employees, there existed conflicting decisions between various Three-Judge-Bench decisions and Two-Judge-Bench decisions of that Court. And, hence, the matter was referred to a Three-Judge-Bench for ‘appropriately appreciating the legal position and deciding the matter’. The order of reference, dated October 15, 2003, is reported in ((2004) 7 SCC 132). In 2003, again, ‘Umadevi’ appeared before a Three-Judge-Bench. That Bench directed the matter to be placed before the Hon’ble the Chief Justice for appropriate orders, finding that there is conflict of opinion between Three-Judge-Bench decisions, and hence taking the view that the matter required to be heard by a Bench of five learned judges. This second order of reference,  dated November 18,   2003,  is reported in  ((2006)  4 SCC 44).  Umadevi was beckoned, again, by the Supreme Court early in 2006; this time, by the Constitution Bench of Five Judges. The constitutional aspect involved was tested with elaborate advocacy, not  ‘in Twenty 20 fashion’.

The unanimous judgment of the Five-Judge-Bench was rendered by His Lordship Mr. Justice P.K.Balasubramanyan, on April 10, 2006-reported in  (2006) 4 SCC 1 = 2006 (2) KLT SN 55 (C.No. 70) (SC). On an elaborate consideration of the dense case law on the issue, (to be exact, 34 decisions), Balasubramanyam J., showed the power of Five, in close, naked and natural judicial prose. This judgment shows that a judicial decision need not be a miracle of erudition. The final decision come to, was that ‘a mandamus could not be issued in favour of the temporary employees directing the Government to make them permanent since the employees cannot show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent’. It was mandated that there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme. It was ‘also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, (sic.) will stand denuded of their status as precedents’.

I, for one, could only comprehend that ‘subjective sense of justice varies from judge to judge’. I am not enamoured of ‘Umadevi’. The principle laid down in the decision may be wholesome, but the result is verity woeful, for lakhs and lakhs of temporary employees are left in the lurch. But, mark, the judge is a decision-maker, not a mentor. And, the Supreme Court is said to be the Legal Power House of the nation, concerned with adjudication; unconcerned with the fury and agony of the vanquished, or the elation and jubilation of the winner.

One might have thought, the battle was over; and Umadevi had appeared to heal the fractured verdicts of the past. The bottom line of the judgment is clarity. I used my blue pencil to good effect.

But, when Umadevi was walking about courageously clad, a Two-Judge-Bench looked at Umadevi in an unpleasant manner. And, that was in U.P.State Electricity Board v. Pooran Chandra Pandey (reported in 2007 (4) KLT 513 (SC)) in which judgment was rendered on 9th October 2007.

The Two-Judge-Bench, in U.P. State Electricity Board case thought that Umadevi could be distinguished on facts, forgetting that the Five-Judge-Bench was constituted to decide a principle relating to a constitutional question; and, hence, there was no necessity to look only at the bare bones of Umadevi, and open another constitutional corridor. All the same, I am not prepared to say that the U.P.State Electricity Board case is wrongly decided. The following reasoning, in paragraph 10 of the judgment, based on stubborn facts of the case, supports the conclusion in paragraph 20 that the appeal deserved to be dismissed:

“In our opinion, the proceeding dated 3-4-1997 makes it clear that the employees of the Society should be deemed to be the employees of the Electricity Board with continuity of their service in the Society, and it is not that they would be treated as fresh appointees by the Electricity Board when their services were taken over by the Electricity Board. In this view of the matter, the writ petitioners (respondents herein) are entitled to the benefit of the order of the Electricity Board dated 28-11-1996. This view also finds support from the affidavit of Shri Ramapati Dubey, Chief Engineer, R.P.M.O., U.P.State Electricity Board in which it is mentioned that ‘in this way, the Board Order dated 28-11-1996, a copy of which has been filed as Annexure No.5 to the Writ Petition, has been complied with and the employees of the Co-operative Electric Supply Society have been given the same status and benefit of regularisation in the similar manner as it was given to the employees of the Board”.

Unlike for Umadevi and others, for Pooran Chandra Pandey and others, this was Shakespeare’s “A Daniel come to judgment. Yes, a Daniel”. 

Thereafter,  in my view,  there was no necessity for the U.P. State Electricity Board to administer shock treatment to Umadevi, by referring to a catena of decisions, beginning with centuried Quinn v. Leathem, and observing:   “......we find that often Umadevi’s case is being applied by courts mechanically as if it were a Euclid’s formula without seeing the facts of a particular case”.

All the same, we should not forget that the Constitution did not come by fax from heaven; man-made, certainly, it is, therefore, infallible, verily,  it is not. The inhabitants of the Constitutional Court speak in different languages.

Umadevi seems to have been X-rayed by the U.P.State Electricity Board; or, is Umadevi electrocuted! 

It looks as though again an arbiter is required.   One fault may lead to the next. And,  a jury may be required to decide the issue finally, in case ‘A second Daniel’ appears. I am entitled to venture this view, as I have been living legal profession since 1954, and legal profession is my habit, not luxury. Let the important issue involved in Umadevi vis-a-vis U.P. State Electricity Board be the subject of discussion by the advocacy storage,  eschewing non-cognizable points? not by the Scandal corridor,  employing linguistic fraction or push-pull opinions, though language may be the most democratic of all institutions.

“ “Head or Tail”: Not sure,  until the coin falls flat to the ground”.

Some Thoughts -- Past/Present Revised

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

Tailpiece: Are “We, The People” suffering from overdose of Liberty/Complacence?