Obituary : Advocacy

(By T.P. Kelu Nambiar)

The caption is based on a learned borrowing from Prof. A.L.Goodhart’s inimitable expression.

Though I hate being so old, eighty summers have come and gone after the day I breathed first; and fifty-three years have elapsed after I ‘advocated’ first. From a childhood in the tiny village Puzhathy, Kannur, commuting to school on a ‘judka’, to a Senior Advocate in the High Court of the State, is quite a transformation. I am slowly becoming a tragic twilight. And, now my age is weak.

With the privilege of antiquity upon me, I should say, with little hesitation, something has gone terribly wrong with advocacy; and the legal profession has crashed. This bomb which has now exploded, I was carrying on my mind for sometime now. I should speak with the valour of my tongue, lawyers are becoming strangers to themselves. We have to grin and bear the misfortunes and tortuous trail of the legal profession. It would not be too hasty to say that advocacy is ars magna: the great art; it is worship for lawyers; and advocates do not purchase tickets from touts.

Let me rewind to an era of pristine advocacy; where integrity and industry were the lawyer’s capital; where lawyers and Judges were partners; and not mere participants, without transferring their problems to each other, and without exploiting Judge-lawyer mismatch. Advocacy was no redemption song in those days; “bits and pieces” advocacy was shunned. Advocates tried to conquer the Judge by perseverance.

Listening skill was there in Judges. The man behind the name ‘Judge’ knew the importance of being a silent, attentive listener, without interrupting learning, making learned approbation of the grammar and idiom of advocacy, with cloistered detachment.

Today the legal profession seems to suffer from an institutional paralysis. I see the picture of a profession in crisis. Advocacy beckons advocacy. A lawyer wears many hats, so that it is cautioned: “Beware of Lawyers”. Lawyers are arrested, incarcerated, or murdered. Criticism of the judiciary enjoys a free play.

Digital lifestyle seems to be the order of the day. Much importance is attached only to the coronation of lawyers and Judges. Advocates seem to suffer from lawyer’s block. The proud, constitutional impatience of the Judges is often talked about.

The eloquent Indian, by name Sri.V.R.Krishna Iyer, said that the Court is not the proprietor of the lawyers. That mesmeric voice exhorted lawyers to meet Kipling’s Triumph and Disaster and treat them just the same, without resembling the portrait of a tragedy.

What makes a judiciary is Judges, not structures. Judges should be conscious of their functions and duties, not only powers, said that legal democrat, an inspiring stimulator and clarifier, Sri.V.R.Krishna Iyer, a man with a broad mind and lofty soul, who never says anything in discouragement; and who commands fundamental respect. 

‘Sravanam’ seems to be in bad shape in advocacy. Pardon me for saying some pretty unkind things about the legal profession. But ‘the man who cries is the man who feels’. Make no mistake, the legal profession is still noble. The High Court/Supreme Court is the melting pot of justice.

Superfast lawyers and Judges face the risk of derailment.

Lawyers and Judges seem to suffer from English dialogue blues.

A good lawyer works sixteen hours in the twenty-four.

Consulting my ‘Commonplace Book’, I find that Sri Justice V.R.Krishna Iyer, who speaks as Homer wrote, once made the immortal statement that an institutional paralysis has gripped the legal profession. A mere receipt of a black jacket does not make a lawyer. A perceptive lawyer should sell his soul to the grammar and idiom of advocacy; remembering that there is certainly ability even in disability.

Lawyers should be earnest to plead for their clients, not to please the Judge.

Let me tell those who are listening to me, without taking my secrets to the grave. And, firstly, of the first: Be possessed of the ingredients of a true lawyer. A lis is unlike the controversy between Robinson Crusoe and Friday, the Savage. Advocacy is not use and mis-use of law. Do not displease a Judge with your familiarity. Law book is the only weapon that is fit for a lawyer’s hands. Lawyers are not cross-dressing robbers. 

My life has been full and fruitful, with defeats and triumphs, experiencing bitter-sweet emotions. I have reached the last mile in advocacy. I am braving disabilities. My inner fire has been extinguished. I am slowly giving up Pollock and Mulla, Wade, etc. in exchange for Shakespeare, Hazlitt, Milton etc. And I feel myself much happier sometimes, indeed, to be in the Old Curiosity Shop section in my library.

Lawyers need to reinvent themselves. Lawyers should live with honourable mind.

A word to the junior friends, in the Shellian tune, though. Remember, “hard studies and youthful pleasures will not go hand in hand”. Do not spread the pain of advocacy. Advocacy is not a short-term course. Do not expect pole-to-flag win in the professional race. Do not think of portable property alone in the profession.

A lawyer should be a man of miscellaneous education.

There can be opponents in advocacy, but not enemies.

Try to enrich Kerala’s lawyer capital, especially in these days when it looks as though the legal profession has migrated to Delhi.

Try to attain lawyer maturity. 

Plea Bargaining -- A Mission That Would Fail

(By V.K. Babu Prakash, Judicial First Class Magistrate, Kollam)

“Twenty seven million cases are pending in lower courts in the country of which fifteen million are criminal cases at the end of 2006”.

Union Law Minister in Parliament

Justice Malimath Committee appointed by the Central Government to revamp the criminal justice system submitted its report in April, 2003. The Committee addressed the huge arrears of criminal cases, the inordinate delay in disposal and the low rate of convictions. Among the various measures suggested by the Committee, the different and distinct one was the Plea Bargaining System which was hither to unknown to the criminal justice delivery system in India. Parliament accepted the proposal and later introduced the concept of plea bargaining in the criminal judicial system by the Criminal Law (Amendment ) Act 2005. A new Chapter XXIA was introduced in the Code of Criminal Procedure. The concept of plea bargaining is used in the criminal cases where the maximum imprisonment is below 7 years. Plea bargaining is not allowed in case the crime is committed against a woman or the victim is aged under 14 or the crime is likely to affect the socio economic conditions of the country. The Committee felt that plea bargaining would become a fruitful system which would play a significant role in the criminal justice system. It would pave the way for the accused to come up before the court at a pre trial stage and voluntarily plea for guilty and thereby get bargaining of the plea and walk away with a lessor punishment. Ultimately the mission of plea bargaining would reduce the pendency of criminal cases in the coming years in India.

Will the plea bargaining mission would become successful in the present scene of Indian Criminal Justice Delivery System? To have an answer, one needs a close look at certain things. Our criminal justice system is based on Anglo Saxon jurisprudence. It’s common law relic is the adversarial system of trial in criminal cases. Burden of proving the case beyond reasonable doubt against the accused is on the prosecution which is the touch stone of the system upon which entire evidence is swished on. The accused has a right to silence and cannot be questioned or compelled to be a witness against himself. In most of the western countries which do not follow Anglo Saxon Principles, it is the inquisitorial trial system followed. In such system the accused is presumed to be guilty and it is for him to prove that he is innocent. In that system the concept of plea bargaining is there which inclines the mind of the accused to look forward to plea bargaining . This is because if the trial goes and if he cannot establish his innocence, he would get severe punishment, whereas if he goes for pretrial plea bargaining he would get lessor punishment. This is the real logic behind plea bargaining.

However in adversarial system accused will never look forward to plea bargaining because the law says that he is innocent, unless otherwise proved by the prosecution beyond reasonable doubt. To seek the benefit of plea bargaining the accused has to file an application in the court under Section 265B (1) Cr.P.C. The application shall be accompanied by an affidavit of the accused. In the affidavit he should swear that he has come forward to plea bargaining voluntarily, that he admits the guilt etc. As majority of the accused in the country are illiterate, naturally they will seek the assistance of a lawyer. A lawyer who knows the fact that adversarial trial is the system followed in Indian Courts, will never advice the accused to go for plea bargaining. The is because he knows that prosecution will have to prove the accusations beyond reasonable doubt thereby he would advice the accused that he is innocent until proved guilty by the prosecution. The other side is that if plea bargaining is pursued the case will finish before the trial. A lawyer will always consider only his professional interest first, therefore he will never advise to finish the case in the first rung. As plea bargaining has to come from the accused voluntarily the court cannot interfere and advice the accused to go for plea bargaining than trial. 

Moreover in the present system the statements of the witnesses are recorded under Section 161 Cr.P.C. by the police, which do not give any guarantee that the witnesses would support the prosecution case in the court in trial. Therefore, a clever lawyer will always go for a trial than plea bargaining , since adversarial system is the golden goose which would lay fortune eggs into his pocket. Another anathema of the concept of plea bargaining is that it would cast the stigma of guilt on the accused. He has to admit the guilt and go for plea bargaining which would be disadvantageous to his social position. So ultimately plea bargaining though is a noble concept which has a vision to curb and curtail alarming rate of pendency of criminal cases, in the present system of adversarial trial, it would be a mission failed.

PARABLE 

An archer may

       Keenly aim at his target. 

Yet, the arrow

          Shot from his bow 

may not reach the target

                                                                            - Zen Proverb 

India Considers Partnership With Limited Liability

(By Devan Ramachandran, Advocate, High Court of Kerala)

A desideratum, recommended by several expert Committees and Groups, for providing Limited Personal Liability for the partners of a partnership firm, which is in apparent dissonance with the very concept of Partnership, became the leaven for a new legislation to actualize a regime of Limited Liability Partnerships in India.

In India, businesses and services mainly operate as companies, sole proprietorships and partnerships. Out of these, proprietorships and partnerships are generally unregulated and Limited Liability Companies are regulated by the Companies Act.

In view of the accentuating role of services sector in the economy, the wide range of domains in which such services can be offered and the growing number of professionals, a need for a new corporate composition has been long felt which will enable professional expertise to organise and provide a range of services to the corporate sector in a comprehensive and efficient manner. 

On 15th December 2006, the Limited Liability Partnership Bill, Bill No.CXI/2006 (LLP Bill), was presented before the Rajya Sabha by Sri.Prem Chand Gupta, Hon’ble Minister for Company Affairs. The Limited Liability Partnership (LLP) is proposed to be a form of general partnership, created under a law, in which partners are statutorily relieved of all or part of their personal liability for partnership liabilities, debts and obligations.

The Indian LLP Bill is broadly based on the LLP Acts in the United Kingdom and Singapore and seeks to offer limited personal liability to the partners of the LLP. The Act proposes LLP as a Body Corporate, different from a Company registered under the Companies Act, with a separate juristic entity, distinct from its partners. 

The most salient and prominent feature of a LLP, in contradistinction from a Partnership, is that it offers limited personal liability to the partners of the LLP. The quintessence is that in most situations the debts and obligations of the LLP are not the personal liability or responsibility of the partners. In other words, the debts and obligations of the LLP can be paid from the assets and income of the LLP and a partner would, in such situations loose only the amount of his or her investment in the LLP along with the equity, if any, built up in the business. No partner thus risks the loss of his or her assets and income.

The proposed LLP Act presents great opportunity and would be most suitable to lawyers and legal practitioners in this age of international competition, GATTS etc. to provide a large range of legal services, even globally.

The proposed LLP Act provides for a Limited Liability Partnership, which ingenuously combines the best of the elements of Partnerships and a Corporation. Though called a Partnership it is specifically provided in the LLP Bill that the Indian Partnership Act does not apply to a LLP. However since various elements and features of a company are provided under the LLP Bill, the relevant provisions of the Companies Act, 1956, may be made applicable to LLPs at any time by notification by the Central Government with appropriate charges and modifications.

The Indian Partnership Act defines a Partnership as an Association of persons for carrying on the business of partnership and in law, the firm name merely being a compendious method of describing the partners. The Partnership Act statutorily declares every partner to be an agent of the firm for the business of the firm and provides that any act of a partner, which is done to carry on, in the usual way, the business of the firm, binds the firm. The unlimited liability for partners is the singular cause for concern in any firm especially when a claim exceeds the sum of the total assets of the firm. It is this concern, which prevents firms of professionals from growing in size to meet international competition.

It is here that the proposed LLP Act provides the opportunity. An LLP is proposed under the LLP Act to be a Body Corporate and is formed by incorporation. As with a company, the LLP will also have a registered office. It has perpetual succession and various corporate actions like mergers, winding up, amalgamation and dissolution are provided statutorily. In fact the proposed Act defines a “Body Corporate” inclusively to take in Limited Liability Partnership under the proposed Act, along with a Company as defined under the Companies Act.

The LLP Act provides for a LLP formed by a process of incorporation with at least two partners. The internal structure and working of the LLP can be organised based on an agreement called the LLP agreement. The proposed Act also pragmatically provides for existing partnerships to elect the benefits of LLP status, by converting the existing firm into a LLP. For this it is not always necessary to create a new partnership or to enter into a new partnership agreement. The Second Schedule of the proposed Act caters to the statutory prescriptions for such conversions. The internal organisation of the LLP would, therefore, be flexible as per the wishes of the Partners and the requirement of the business engaged by the LLP.

While the LLP would be a separate legal utility, liable to the full extent of its assets, the liability of individual partners would be limited to their agreed contribution in the LLP. Further, no partner would be liable on account of the independent or unauthorized actions of other partners, thus granting a statutory shield to individual partners from the joint liability created by another partner’s wrongful business decisions or misconduct. Enforcement will be taken against the LLP as a legal entity on its own right.

Internationally, the LLP regime has emerged as the most favoured form of organizational structure for businesses and professional services. In the United Kingdom, LLPs are governed by the Limited Liability Partnerships Act, 2000. In the Unites States of America, Texas enacted the first LLP statute in 1991. LLP legislation was enacted in Louisiana in 1992; Delaware, North Carolina and Washington, D.C. in 1993, and numerous other states in 1994 and 1995. It is important to note that the LLP statutes are not uniform and have important variations in, among other things, the types of businesses that may use LLPs, the level of personal involvement that will cause a partner to bear personal liability for another person’s negligence etc. Notwithstanding these variations, the general theme of LLP legislation is uniform: LLPs provide partners with statutory protection from some or all partnership debts, obligations and liabilities.

In Conclusion:

In addition to being an alternative business structure, LLPs would foster the growth of the services sector. The regime of Limited Liability Partnership will provide a platform to small and medium enterprises and professional firms of Advocates, Company Secretaries, Chartered Accountants etc. to conduct their profession / business efficiently which would in turn increase their competitiveness. This is ideal since an LLP would provide the required internal organisational flexibility, suited to its requirements of the services offered by it, without having to be piqued about detailed legal and procedural requirements like in a Company. The Corporate Status of an LLP would also no doubt inspire added credibility among its clients and customers. The LLP Bill and the proposed LLP Act is therefore in the right direction.