‘Q’ DOCUMENT OF ADVICE

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

At a time when a practising lawyer is being elevated as Judge, an octogenarian lawyer tendered the following advice to the Judge-designate, remembering, with Johann Wolfgang von Goethe, that ‘ to accept good advice is but to increase one’s own ability’, and, at the same time, not forgetting Samuel Johnson’s cliche: “Advice is seldom welcome. Those who need it most, take it least.”

The following ‘unasked advice’ was given with the stipulation to forget the adviser, and, not to forget to remember the advice.

(1) History is always written by the winners.

(2)  Do not be carried away by your majestic ascend.

(3)  Be a Judge of your own signature style.

(4)  Learn differences that make a difference.

(5)  Be a Judge who can see different parts of the elephant at the same time.

(6) Remember, Judges are not honey hunters.

(7) Judicial function is not just cheese and chocolates.

(8)  Try to see that you do not fall from grace to disgrace.

(9)  Forget not that the court is not a graveyard for litigants.

(10)  A Judge is not an avatar.

(11)  A Judge is not a lawyer’s deity.

(12) Submissions before court are not offerings to the Judge.

(13)  Showcase your function, not your power.

(14) Get your tone and tenor right.

(15)  Remember the importance of communication etiquette.

(16)  Have confidence, courage and conviction.

(17) Do not consider ‘Justice’ as a flattering epithet.

(18)  Adjudication is not the birds-and-the-bees lecture. 

(19)  Do not be a Judge with edited expressions.

(20)  Prove to be the surprise package of the judiciary.

(21)  A Judge is not a gold-coin certicard.

(22)  Do not be impolite, intemperate, or uncharitable.

(23)  A Judge should be a bright brain.

(24)  The High Court is not the proprietor of the lawyer.

(25)  The difference between lawyer and Judge is not that of man and superman.

(26)  Integrity should be your capital.

(27)  A court is not a Clearing House for mandamus.

(28)  Do not be a Judge suffering from judge’s block.

(29)  Judges are not seers, intuiting mantras.

(30)  A lawyer is not a living dead.

(31)  A Judge can not afford a millionaire’s meal.

(32)  Judges are not terror commanders.

(33)  The High Court is not Judges peculiar.

(34)  A Judge cannot afford mile-high luxury.

(35)  Avoid sudden slip of the language in court.

(36)  Justicing is not a 22-yards apart game between the Bench and the Bar.

(37)  Enter the court with a winsome smile.

(38)  Do not shun the sound of advocacy.

(39)  Do not adjudicate sans arguments.

(40)  Remember, the majority of young lawyers lead life in the margine. Encourage and help them.

(41)  Be careful about your life outside the law court.

(42)  Do not render non-cognizable judgments/orders.

(43)  It is time for Judges to think out of box.

(44)  Try to re-claim long lost judicial tradition.

(45)  A Division Bench should show power of two, not two-in-one.

(46)  Remember, you belong to a family of status, stature and traditions.

(47)  Always remember what Brutus said:

“The eye sees not itself”.

End piece: “Every man, however wise, needs the advice of some sagacious friend  in the affairs of life”:               -- Plautus.

ARTICLE 348 IMBROGLIO

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

Article 348 (1) of the Constitution of India says:

“Notwithstanding anything in the foregoing provisions of this Part, until Parliament by law otherwise provides -

(a) all proceedings in the Supreme Court and in every High Court,

(b) the authoritative texts -

(i) of all Bills to be introduced or amendments thereto to be moved in either House of Parliament or in the House or either House of the Legislature of a State,

(ii) of all Acts passed by Parliament or the Legislature of a State and of all Ordinances promulgated by the President or the Governor of a State, and

(iii) of all orders, rules, regulations and bye-laws issued under this Constitution or under any law made by Parliament or the Legislature of a State, 

shall be in the English language”.

It was at a time when I was worried by lack of worries, I noticed the recommendation of the Committee of Parliament on Official Language that “Article 348 of the Constitution may be amended to enable the Legislative Department to undertake original drafting in Hindi; and after such amendment, High Courts/ Supreme Court should be asked to start delivering their judgments and decrees etc. in Hindi so that large number of Government Departments, who are carrying out judicial/ quasi-judicial functions, could be able to deliver orders in Hindi; at present, these departments are unable to pass orders in Hindi, because the appeal against their orders in High Courts/Supreme Court would have to be conducted in English”. The subject-matter of this recommendation is as sensitive and important today as it was in 1949, when Art.348 was born. 

Whenever I am to study an aspect relating to any provision in the Constitution of India, my mind travels back to the Constituent Assembly for the discussion on the corresponding Draft Article. Turning the pages of the Constituent Assembly Debates, I found that the Debates on the corresponding draft Articles took place on 12th, 13th and 14th September 1949.

When the Constituent Assembly re-assembled in the afternoon ‘at Four of the Clock’, on 12th September 1949, Mr.President (The Honourable Dr.Rajendra Prasad), took up Part XIV-A-'Language’. 

Dr.Rajendra Prasad stated:

“We have now to take up the articles dealing with the question of language. I know this is a subject which has been agitating the minds of Members for sometime...... There is no other item in the whole Constitution of the country which will be required to be implemented from day to day, from hour to hour, I might even say, from minute to minute in actual practice....... I have found that there are some three hundred or more amendments to these articles. If each one of the amendments is to be moved I do not know how many hours it will take ..................”

The main speaker of the day on the subject was the Honourable Shri N.Gopalaswamy Ayyangar. Shri Ayyangar started with a bang:

“Opinion has not always been unanimous on this question. There was, however, one thing about which we reached a fairly unanimous conclusion that we should select one of the languages in India as the common language of the whole of India, the language that should be used for the official purposes of the Union........ I for one did not easily reach the conclusion that was arrived at the end of these discussions, because it involved our bidding good-bye to a language (meaning, English) on which, I think, we have built and achieved our freedom. Though I accepted the conclusion at the end that that language should be given up in due course and in its place, we should substitute a language of this country, it was not without a pang that I agreed to that decision”.

Shri Gopalaswamy Ayyangar went on to say that we could not afford to give up the English language at once. “We had to keep the English language going for a number of years until Hindi could establish for itself a place, not merely because it is an Indian language, but because as a language it would be an efficient instrument for all that we have to say and do in the future and until Hindi established itself in the position in which English stands today for Union purposes”. Shri Ayyangar continued:

“We then proceeded to consider the question of the language that should be used in our Legislatures and the highest courts of justice in the land and we came to the conclusion after a great deal of deliberation and discussion that while the language of the Union ‘Hindi’ may be used for debates, for discussions and so forth in the Central Legislature, and where while the language of the State could be used for similar purposes in the State Legislature, it was necessary for us, if we were going to perpetuate the existing satisfactory state of things as regards the text of our laws and the interpretation of that text in the courts, that English should be the language in which legislation, whether in the form of Bills and Acts or of rules and orders and the interpretation in the form of judgments by Judges of the High Court—these should be in English for several years to come. For my own part I think it will have to be for many years to come. It is not because that we want to keep the English language at all costs for these purposes. It is because the languages which we can recognise for Union purposes and the languages which we can recognise for State purposes are not sufficiently developed, are not sufficiently precise for the purposes that I have mentioned, viz., laws and the interpretation of laws by Courts of law”.

The Honourable Member concluded, with a whimper:

“I would only appeal to the House that we must look at this problem from a purely objective stand point. We must not be carried away by mere sentiment or any kind of allegiance to revivalism of one kind or another. We have to look at it from the stand point of practicability. We have to adapt the instrument which would serve us best for what we propose to do in the future and I for one agree with you, Sir, that it will be a most unhappy thing, a most disappointing illustration of our inability to reach an agreed conclusion on so vital a matter if on this point we have to divide the House. I am sure that good sense will prevail”.

I should think that even at present the apprehension voiced by Shri Gopalaswamy Ayyangar has not ceased to exist. According to me, we have not still reached the stage at which Hindi language could substitute English. The position as on today has to be continued for a long time. It is not yet time to amend Art.348 of the Constitution as recommended by the Committee of Parliament on Official Language. It is not yet time at all to ask the High Courts/Supreme court to start delivering their judgments and decrees, etc. in Hindi.

What is the position of Hindi language now. What is today’s standard of education in Hindi. How much has Hindi grown up to stand up to face the situation involved in the recommendations of the Committee. I do not find any scholarly allure in the suggestion. It would be too hasty to agree with the suggestion. The question is not one concerning filling up the blank pages of the law. The question is a loaded one. I regret my embarrassment, but I have to say, with humble apologies to the Committee though, that there should not be any amendment on the lines suggested by the committee in a hurry, only for the reason that the Legislature/Parliament suffers from Constitutional impatience. One fault leads to the next. Serious thought should be bestowed on the question of constitutional amendments in relation to ‘Language’, especially when legislation is not a pastoral letter; and, further, English language is an enticing treasure. The situation in 1949 is different from that in 2007. Technology has changed our brains, in this clicking, bleeping, flashing world of screens. These are days of E - learning, and globalisation. Even Russia and China have changed their views on language. There is change on all fronts-social, political, educational, regional etc. India does not consist only of Hindi-speaking areas. The Constitutional corridor is not the preserve of Hindi. Regional languages have grown; in fact, over-grown. Here, States re-organisation based on language, has played a great part, and that, against the Hindi language. The situation of the Constitutional Courts delivering their judgments in Hindi, is unimaginable, in these days. Anybody concerned with the administration of justice by High Courts and the Supreme Court, would be prepared, with little hesitation, to release his opposition to the suggestion. When we take note of the constitution, organisation, and method of appointment of judges, of the High Courts and the Supreme Court, we may have no difficulty to perceive the utter impossibility of judges delivering judgments in Hindi, especially judges with honourable ignorance of the language. Let not the inhabitants of the Constitutional Courts be disturbed.

At the end of the day, I could formulate only one conclusion; and that is, it is not yet time to act on the lines of the recommendation of the Committee of Parliament on Official Language, in regard to “Language”, especially Article 348 of the Constitution. The period of 15 years stipulated in Article 343 of the Constitution can never be adhered to in the changed situation, making it impossible for a long time from now to adhere to the said stipulation. Times have changed against the stipulation. Situation has not improved in favour of the stipulation. It remains Joseph Heller’s Catch-22. The soft sobs of forgotten statesmen/politicians on the question of language will not abate for a long time to come.

It is not virtuous to be obstinate.

SOME  THOUGHTS  ON  APPEALS,  DECREES  AND COURT  FEE

(K.G. Balasubramanian, Advocate, Ernakulam)

Sarada Amma and others v.  Eachukutty Nair and others -- 2007 (3) KLT 35 - set off another chain of thoughts. The Hon’ble Court, referring to Ss.37 and 52 of the Kerala Court Fees and Suits Valuation Act (“the Act”), was pleased to hold, inter alia, that: “Though the final decree is passed in an Interlocutory Application, such decree directing division of shares by metes and bounds would satisfy the requirement of a decree under S.2(2) of the Code of Civil Procedure. A final decree for partition is appealable under S.96 of the Code of Civil Procedure. Appeal against the final decree for partition is an appeal from a decree and not an appeal from an order and that the Appeal shall be valued and court fee paid under S.37 read with S.52 of the Kerala Court Fees and Suits Valuation Act”.

“The Act” does not, I would suggest, coalesce the nature of proceeding and the result thereof, whether it be decree or order, for the purpose of taxation. Court fee is payable on a document u/s 4 read with Ss.6 and 21 of “the Act”, and not on the product of adjudication thereon viz., order or decree. Ss.22 to 50 and 53 enumerate court fee payable on plaints in various suits and Schedule II to “the Act” enumerates appeals/applications before various authorities/courts and fee payable thereon. The legislature deliberately differentiated between plaints on one hand and applications/petitions/appeals on the other and hence incorporated Schedule I as regards documents to be charged ad valorem and Schedule II as regards documents to be charged at fixed rates. Being a fiscal statute, this intentional distinction has to be strictly construed. S.52 does not provide any distinction between order and decree, but provides only that the fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the subject matter of the appeal.

In 1969 KLT 69, it was held that “S.52 of the Act applies only to cases where the court fee is computed on the subject matter of the appeal. It does not apply to proceedings that are charged fixed fees irrespective of the subject matter involved. In that view, there is no contradiction between S.52 and Schedule 2 of the Act. A comparison of Art. 11 with Art 3 of Schedule 2 shows that in many cases the court fee prescribed for an application is different from the fee for an appeal therein. It cannot be that by such provisions the legislature meant to create disharmony between them and S.52".

On the scope of S.52, there cannot be any controversy. In 1993 (1) KLT 528 Narayanan Ragavan v. Noordeen, it was held that “A reading of the first proviso and the Explanation would show that S.52 is attracted to cases where court fee is payable in the court of first instance. If court fee is not so payable in the court of first instance, S. 52 cannot be applied".

Plaints in suits for partition are taxed at fixed rates, valuation being shown essentially for determining pecuniary jurisdiction and forum of appeal. Fee on the said plaint and on the memorandum of appeal from the ensuing decree need not be, and cannot be, computed on the basis of value of the subject matter. The provision to give credit for the fee (paid in any appeal pending against the preliminary decree) on a memorandum of appeal against a final decree by the same appellant conveys the idea only that if he is successful in his pending appeal, he need not be taxed on an appeal which has become otiose.

Moreover, the phraseology “appeal from a decree” seems to be an inconsequential surplus after the amendment to O. XLI R.1 C.P.C. whereby the necessity to produce copy of the decree has been obviated. The situation appears to be that an aggrieved person is appealing from a judgement, the decree being good and necessary only for execution and statistics. Consequently, the reference to “decree” in S.52 of “the Act” and Ss.96/100 C.P.C. appears to be not relevant.

An application for passing a final decree is certainly not a plaint coming under S.37, but only an application coming under Art.11 Schedule II. It cannot be taxed on par with a plaint. “The Act” does not, according to me, demand of the applicant to pay the same fee again on that application. Consequentially, his appeal has to be taxed at fixed rate as on the application in the trial court.

Sarada Amma does deserve a second look! 

Ministers, ‘Beware’

(By V.G.Govindan Nair, Advocate, Trivandrum)

‘State’ is at the top. It is manned by Ministers. It has its own functionary wings. They are Legislature, Executive and Judiciary. These wings are to function as supreme in their field. Not to transgress each other.

State is responsible to act according to law. Law is supreme. State is to see that its wings, Legislature, Executive and Judiciary are functioning in their field in accordance with law. People are the beneficiaries. Any wrong done by any of the wings of the State, State is vicariously liable. Hence it is the responsibility of the State to see that its wings are properly and legally functioning. Any wrong done by any person in the discharge of any of its functions is personally liable to the wronged, in addition to the vicarious liability of the State. State is liable for the wrong committed by any person in any of its wing unless law is made otherwise.

Judicial Officers Protection Act is one law made to protect the Judicial officers from personal liability if the act is done in discharge of his duty in good faith. But State is liable for the wrong committed by the judicial wing of the State, though Judges are not personally liable because of the Judicial Officers Protection Act. Hence it is the duty of the State and its counsel to see and guide the Judges to pass proper and legal orders in the matters before Court. State responsibility is to be discharged through its counsel before Court. Hence merit and efficiency of the counsel representing the State is very heavy. Public prosecutor/attorney representing the State is to help the court to find out the truth in the matters in dispute and to see that the Judges are guided properly in the administration of justice. Of course the duty of the defence lawyer also is to see that the Judges are guided properly and justice is done to the parties. Supreme Court in its Judgement 1999 (7) SCC 467, says that it is the duty of a Public Prosecutor to conduct the case for the crown fairly. His object should be not to obtain conviction by any means fair or foul. If the accused is entitled to any legitimate benefit, the Public Prosecutor should make it available to him or inform the court even if the defence counsel overlooked it. It is the responsibility of the lawyer to help the court in the administration of Justice so that the legal system in the society will prevail at its glorious height. 

Persons in various official positions in the State are to discharge their duty strictly in accordance with law. Any sort of deficiency either by illegal action or inaction of the persons (public servant) is liable for action. By any wrong act of a public servant (illegal act, inaction and any sort of abuse) an injury is caused, then the wrong doer is liable to the wronged. The wrong doers will be personally liable and the State is vicariously liable. If any action is taken by the wronged against the wrong doer and the State, the State being vicariously liable is to pay compensation to the wronged and then the State is to recover the same from the wrong doer (Public Servant). Thus the State is indemnified. So every public servant acting in positions must take care to act according to law and if otherwise done he will be personally liable to the wronged. So let the persons in position ‘Beware’. This is an area where the Public servant is to be cautious in discharging his duty. Wrong use (abuse) of the power vested in him (from top to bottom) is liable for action and he is to compensate to the wronged in law. Hence all the persons in various positions in the State are to take care to see that they discharge their function strictly in accordance with law. Ministers are public servants and they have to act as per law. Moreover, the State is manned by Ministers and they are responsible to law and public. Ministers are selected from elected representatives. They have to be responsible and accountable to people at large in Democracy. Ministers must be models in acting according to law. Law is supreme and nobody is above law.

“How high so ever you be 

Law is above you”

“This doctrine is reminded by the Supreme Court of India on many occasions.”

Merchistan land dealings and Munnar issues are to be viewed in the light of Law.

Hence the persons in official positions, especially Ministers, “BEWARE”

The Quest

(By B. Jayasankar, Advocate, Thiruvananthapuram)

Belonging to the legal fraternity, I always find advocates so interesting. The black robes and the peeping white within always intrigued me. I perceive that the black absorbs it all and the white reflects only that much in commensurate with the requirement. An advocate sweating over a case in a court is a feast for the eyes. He always appeared to me as a versatile juggler, who is the champion of rights. Different advocates fight differently and valiantly in a legal battle. Just that the approach, the armoury and mode of attack differ. But can there be an epitome of advocacy? Some one who can be looked up to? The quest took me to a different plane.

The search yielded no results. It proved to be a tough nut to crack and led me to a pertinent question. Who is an advocate? The Advocates Act told me that an advocate means an advocate entered in any roll under the provisions of the Act. The Act is silent on who an Advocate is. I turned to my favourite dictionary and found out that an advocate is some one who advises people about law and speak for them in courts. But will that suffice? Can such a person epitomize the values inherent in the profession? I went on till I stumbled upon an idea. Why can’t the word ADVOCATE be treated as an acronym and be interpreted in such a fashion depicting the qualities of a true lawyer? I got inspired from the word POLICE which is often seen elaborated in such a way though the word has been derived from the Greek word “Politeia”. So I gave it a try and came out with something, which I believe, can be attributed to the epitome of advocacy and I coined ADVOCATE  as:

assiduous 

dependable

Virtuous

optimistic

courageous

assertive

tactful

efficient

And, there, my quest came to an end. Without doubt, I can say that these qualities can make one a true lawyer. Whether we all can conform to those ideals is a ticklish question. But irrespective of that we all should strive for perfection and rejuvenate the old profession making it noble than ever, if not the noblest.