‘MR. JUSTICE’  WILL DO JUSTICE TO JUDGES

M.R. Hariharan Nair, Judge

If Press Reports are to be believed, the Bar Council of India is presently ascertaining the views of the learned members of the Bar throughout India as to the mode in which Judges and other Presiding Officers of Courts (and Tribunals) are to be addressed. ‘MY LORD’ AND 'YOUR  LORDSHIP’  TO  BE  HISTORY” says Indian Express of 11th March. The laudable objective, it is stated, is to replace the archaical style of addressing them as ‘My Lord’ in the higher Courts and as 'Your honour’ in the case of subordinate Courts.

Is this effort worth the time and labour it consumes? According to me, not. It is actually a futile exercise. Why so? For the answer, let us go to the 3 decade old Circular 9/1973 of the High Court of Kerala (No: Al-14465/73 dt. 20th July 1973) which reveals the following history.

On 19th April 1973 Justice J.M. Shelat, the then Ag. CJI wrote to all Chief Justices of the High Courts of the country as follows.

“After receiving replies on the above subject from almost all the Chief Justices of the High Courts, a meeting of the Full Court of the Judges of this Court was held on March 12 1973. The meeting decided that the Judges and the Chief Justice of the Supreme Court may be addressed by the members of the Bar as ‘Mr. Justice’ and ‘Mr. Chief Justice’ respectively and when addressing the Court, the form of address would be “this Honourable Court”. It was also agreed that where in the course of arguments it becomes difficult to address a Judge as ‘Mr. Justice’, he may be addressed as “Sir”. In consultation with the Bar Association here, it has been decided to introduce the new mode of address on and from May 1, 1973. I suggest that a uniform mode of address in the Supreme Court and in the High Courts would be proper.”

It was following this letter of the Chief Justice of India that the Kerala High Court issued the said Circular 9/1973 quoting the above letter in full and stating further, as follows:

‘....The High Court has decided to introduce, with immediate effect, similar modes of address in the subordinate courts of the State. The Presiding officer of a court including Munsiffs and Magistrates may be addressed by the members of the bar as ‘Mr. Judge’. If, in the course of arguments it becomes difficult to address the officer as ‘Mr. Judge’ he may be addressed as ‘Sir’. The court may be addressed as’ This Hon’ble Court.......’.

All the subordinate officers of Courts and Tribunals were also requested to introduce the new mode of address with immediate effect (20-7-1973).

When the above state of affairs rule the field, why the present controversy and why the resolution of the Bar Council of India ‘to replace the century old addressing mode’ and why the Circular to State Bar Councils seeking suggestions, one wonders.

The News item also refers to the fact that on 6th Feb: 2006 the Supreme Court turned down a PIL filed by the ‘Progressive and Vigilant Lawyers Forum’ seeking a change in the mode of address from ‘My Lord’ and ‘Your Lordship’ maintaining that any move in this direction would have to be taken by the Bar Councils.

What is evident is that everyone had forgotten about the prudent act of Justice Shelat done 3 decades back. Of course the out moded system of address has to stop. But all that is required to achieve it, is for the Bar to stop the old practice and start using the mode of address prescribed by the Supreme Court decades back. Could it be that the Bar has been reluctant to be progressive and wanted to stick on to the old style right from 1973? If the answer is yes, that is another matter. Then one may be reminded of the orders of the Travancore Devaswom Board allowing men to wear shirts within the inner circle of the temple as well and the later withdrawal of the same as devotees were found not only not using the liberty, but also were protesting against it and found clinging on to old traditions? Let us atop unnecessary controversies. The address ‘Mr. Justice’ will do justice to Judges. Nay, to the Bar and the litigant as well. Better late than never. Let us make up for the 3 decades lost.

The Right to Information Act - A Camouflage

 K.P. Radhakrishna Menon, Judge, HC

Preface:

The right to information has been recognized as a fundamental human right of the People who are committed to parliamentary democracy i.e. The Government of The People, by The People and for The People. Since the people of India have chosen to have Parliamentary democracy, they are entitled to the Right To Information. This right however, remained unrecognized till the Parliament enacted the Right To Information Act.

The Act:

The objective sought to be achieved is to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities in order to promote transparency and accountability in their working. This objective is laudable, because transparency and accountability are the sine qua non for a corrupt free democratic Government. They ensure probity in administration.

Does the enactment help the citizens to get probity in public administration afflicted by the evils of corruption, nepotism and favouritism, established? To get an answer to the question we shall have a probe into some of important provisions in the Act. Section 8, I shall deal with first. The marginal note “Exemption from disclosure of information” is telling. The exempted category of information is encompassed by Clauses (a) to (j) of sub-section 1 of Section 8. For paucity of time I shall refer only to those clauses, which effectively scuttle the laudable objective sought to be achieved. For instance Clause (a): It declares that the authority has no obligation to give any citizen information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the state, relation with foreign state or lead to incitement of an offence. An exotic clause! Which is the information, which cannot be brought under this clause. Any information, the Government want to hide can be notified as an information which would prejudicially affect the sovereignty, security and integrity of India, lead to incitement of an offence: For example information relating to Bofors, The Volka deal, The Nuclear deal etc. Similarly information regarding foreign investments by multinationals, which even a lay man can understand are capable of our state economy being controlled by foreign investors, can be refused on the ground that it would prejudicially affect economic interests of the state. Clause (d) is fantastic. It says that information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information, can be refused. For want of space and time I am not cataloging the other clauses, which are more or less similar to those, which have already been dealt with. Section 22 and the 2nd schedule thereto: This Section empowers the Government to amend the schedule by including other intelligence or security organizations, the Government may establish. This section is also emphatic that the Act will not apply to intelligence and security organizations specified in the 2nd Schedule. This section in my view, therefore gives a decent burial to the laudable object. The cumulative effect of these provisions cuts at the very root of the object sought to be achieved.

Can a law-abiding citizen who loves his motherland expect that an administration, which is afflicted by the evils of favouritism, nepotism and corruption and consequently bereft of probity, will enforce the Act effectively? I leave the question open for the consideration of the public. The Act in fact leads the citizen up the garden path.

Viewed from the side of the Poor:

Be that as it may. Assuming that this Act recognizes the right to information embedded in the Fundamental Right guaranteed under Art.19 of The Constitution, even then the bonafides or credentials of the elected representatives who gracefully blessed the people with this enactment, warrant a look. This shall be had from the point of view of the people who belong to the weaker section. One other question that warrants consideration is: Does this Act in any way alleviate the problems socio, economic and ethnic?

Let us try to understand the benefit the weaker section gets: Before we deal with this aspect let us have a study of The Constitution. The democracy envisaged by the Constitution is a democracy of the people, for the people and by the people. That means it is the bounden duty of the Government functioning under the Constitution to provide a decent standard of life to the weaker section of the people and especially provide security from cradle to grave and bring them up in society and join the mainstream. In other words the Government should have done whatever possible to help the weaker section get a place among the well to do.

But like the British administrators, the Rulers of The Republic continued to neglect the education and socio economic uplift-of, what Swami Vivekananda reverently called, our daridra narayanans, the forgotten and neglected weaker section of the people who mostly live in slums and rural areas. The politicians, who believed in service to the people before independence, became self centered, selfish, the moment they tasted power and authority. These politicians were striving hard to come to power. Many candidates aspiring to get elected to the Parliament contesting the 1st general election in 1952, made allegations of corruption, nepotism, immorality and black marketing against their rivals. The congress party committee constituted to screen applications for tickets, had its slogan ‘Let us give Nehru the 500 men he wants and five years and leave the rest to him’ though Gandhiji wished that deserving men from various spheres of activity be inducted into public life so that they can contest elections. This attitude of the congress party gave birth to a new phase in India’s political life. In his book “India from Curson to Nehru and After” Durga Das who was part and parcel of freedom struggle, referring to the political history of free India has stated thus: The Congress won the general election, and that gave birth to a new phase in India’s political life, namely the emergence on top, of courtiers, sycophants and hangers on. When I asked Azad to comment on this development, he said, “We are still feudal, but what has distressed me is that many good persons have been denied tickets because the trusted courtiers had labeled them as anti - Nehru” Page 307-308. Thus for the first time personality cult was introduced in our democracy.

This cult opened the floodgates of favoritism, nepotism and corruption. Dynastic Rule, which had been given a decent burial simultaneous with the transfer of governance by the British, was resurrected by the sycophants. Whenever and wherever possible dynasty rule was established. Political interference in administration to help the courtiers, sycophants and hangers on to avoid criminal charges resulted in criminalisation of politics and politicisation of criminals. The poor people thus ceased to have any rote in the administration. Policy of appeasement aimed at giving concessions to the minorities with the vote bank in view is the reason for the division of the People into two rival groups, The Majority and The Minority. While adopting such polices the administration never bestowed its attention on the weaker section of the People. The administration, it shall be said, refused to protect the weaker section. Such unconstitutional actions are galore. ‘This divide and rule policy’ of the politicians turned administrators virtually tore apart the fabric of democracy, of The People, for The People and by The People envisaged under our Constitution. They have instead introduced a new democracy, which can be defined as democracy of The Politician, for The Politician and his kith and kins and by The Politician. The Politicians thus managed to come to power ignoring the lot of the weaker section of The People.

Grieved by the sufferings of the weaker section of the people, like Adivasis, the Scheduled Castes and Scheduled Tribes, under the administration lead by politicians believing only in power politics, Swami Ranganadhananda lamented:

“But today after achieving independence, the magnitude of self-centeredness that has come to many among our upper classes, the dead life that has come to them, is amazing. The result is the problem ridden India which we live in today. Everything is chaotic. After 37 years of freedom, we have transformed India into a hell. The call of freedom was given by great leaders and they inspired the people”. While making this remark, Swamji points his finger to these facts:- ...............”300 million people of our country have plenty to eat and drink, have opportunities for education, and live in fine houses, but the remaining 400 million people are very backward unless our conscience is turned in this direction, our nation cannot develop inner strength and a real democratic body politic”.

After the introduction of coalition Governments the situation has worsened. Political parties immersed in the game of permutation combination to continue in power or come to power have little time to attend on the Daridra - Narayanas. The weak were thought of only at the time of election. At that time many promises will be made, without the intention of fulfilling the same. The combination of political parties based on permutations, has proved that these political parties following different and opposing ideologies join together just to share power meant only for their aggrandisement or for the aggrandisement of their co-travelers and their kith and kin.

Is there any political party which has discarded the corrupt, which is working for the upliftment of the weak; which is not involved in vote gathering gimmicks, which has ever worked for providing a democratic government meant to provide a decent standard of life to the weak and especially provide security from cradle to grave.

From the discussion above it is clear that today in India in the place of democracy, of the people for the people and by the people, we have a democracy as defined by Benito Mussolini:

“Democracy is a kingless regime infested by many kings who are sometimes more exclusive, tyrannical and destructive than one, he be a tyrant”.

On substitution of the word ‘politicians’ in the place of ‘kings’ the definition reads i.e., Democracy is a kingless regime infested by politicians who are sometimes more exclusive, tyrannical and destructive than one, if he be a tyrant.

After 59-60 years of freedom we today have a problem - ridden India. The rich has become richer and the poor poorer. Can we say that by widening the gap between the rich and the poor, an egalitarian society be created. That it is not possible to create an egalitarian society in the present state of the economy of the nation controlled by the multinationals is a hidden truth. Not only that foreign investments on the soil of this nation may even result in the conquest of the Indian Market by trade almost similar to the trade established by The East India Company resulting in the loss of our freedom. Another crucial aspect: Are we to understand that the establishment of Techno Parks and Smart Cities will help the creation of an egalitarian society? Are we to understand that the multinationals are very eager to create a welfare state? Are we to understand that the Nuclear Deal helps us to become the world leader? The answer to these questions from a layman’s point of view is an emphatic ‘No’. He may even go to the extent of saying that the national economy will come to a grinding halt if the multinationals and the foreign investors press their remote.

The poor destined to live in free India if asked to take any of the two packets shown to him, one containing a loaf of bread and the other containing a copy of Part III of The Constitution (fundamental rights) and a copy of The Right to Information Act, I can say without fear of contradiction that he will take only the loaf of bread which for days together he could not get. To a person who is destined to live in penury, fundamental right is of no consequence. He abhores it just like the one in a condemned cell awaiting the black warrant.

Viewed from the side of the Rich:

The rich is unconcerned with fundamental rights, because he can purchase anything he wants. He can get his fundamental rights enforced whenever he wants, such is the power of money these days.

I therefore am of the view that The Right to Information Act is a camouflage to hide the undemocratic activities of the Governments.

Euthanasia -- Reasonable or Not?

(By Ranjith Narayanan A., Advocate, Calicut)

The right to life as in enshrined under Article 21 of the Constitution of India has over the years, over the decades undergone a tremendous and laudable change, sweeping into its ambit each and every facet of life, its subtleties and emotions, even going to the extent of a fanciful living, whereby everyone is given the freedom to live with all human dignity and freedom to fully enjoy the beauty of life, provided that another person’s liberty or life is not encroached upon, either directly or indirectly. The Hon’ble Apex Court has in a catena of decisions defined and redefined and widened and rewidened the scope and ambit of Article 21. The greatest and foremost being that the right to life does not merely mean mere animal existence, but something beyond that. But has anyone ever taken it to mind that these definitions and interpretations are comprehensive? Does it have an end anywhere? Its just like the wordly phenomena of where is the end of the sky. It cannot be defined in full. It never ends. Just like two parallel lines never meet, the interpretations given to Article 21 never ends.

The right to a clean and healthy environment, right to live with all human dignity, the right to fresh and nourishing air etc., are all made part and parcel of the right to life. But the Hon’ble Apex Court has categorically said that the right to die is not coming within the sweep of Article 21 of the Constitution of India. Of course, I too agree with the view taken by the Hon’ble Supreme Court. But does it run as a necessary corollary to the right to live with dignity and in a healthy environment and condition, the right not to live in an unhealthy condition? Can the legislature or the Courts take a wider sweep is what I propose to moot.

Just consider the poignantly pathetic condition of a person in coma, or who has undergone and is undergoing severe physical and mental trauma due to incurable and painful diseases. Arc they living in a healthy condition? The one and only answer is a big no. Ask the doctors all over the world whether the patient can be cured. “No” would be the probable and possible answer in certain cases. That person, the suffering patient is given all due protection and freedom by the Constitution of India as well as by the courts. He is having each and every fundamental right. The only aspect to be mooted is whether he can exercise any of those freedoms or whether he is in any way benefited by Part III of the Constitution or by the inroads into the same made by the courts of justice.

No person shall be deprived of his right to life or personal liberty except according to the procedure established by law is what the Constitution mandates by Article 21. Such a person cannot be even for a fraction of a second be said to be enjoying the said mandate of law. What that individual must be contemplating would be to die as early as possible and perhaps if possible never ever be given a second chance to live. It would rather be the antithesis of the short poem by Erma Bombek “If I had my life to live over with”. In that verse, the concept is good, I could have done this, I could have done that etc. But such would not be the mental status of a person who is in coma or is suffering from bearable pains. Unbearable pains I am purposefully omitting as once it becomes so, God has created human biology in such a way that the person would slip into unconsciousness. Perhaps death even. But what if he survives and has to live with it. Pathetic would be too subtle a word to describe it. 

Here of course the law and only the law can step in to save the unfortunate victim. Let us just consider some propoganda where in new inroads can be made. Of course, condemning such a person to death is not what the law or morals warrant. But of course the law can seek the help of the victim himself. The law must change in this respect. We can, if we try, avoid the misuse of the provisions of law if such an amendment or enactment ever comes into force. As for example, let the Government constitute a committee under law headed by a Magistrate comprising of him and doctors who are specialized in various branches of medicine and psychologists. If the victim is in coma, let the doctors decide whether he can be cured at any point of time with a possible degree of probability. Their opinion clubbed with the opinion of psychologists can be taken into account by the Magistrate concerned. The relatives, if any, of the victims have to be examined in detail by the Magistrate individually and privately as in case of in camera proceedings. Then also all the opinions given by the doctors and psychologists can be treated on par with the degree of judgement given by expert opinion as envisaged under Section 45 of the Indian Evidence Act. The opinion remains only an opinion. The learned Magistrate has to give the verdict/judgement. Not a cryptic one, but a speaking one with medical and other evidentiary details. If need be, let there be an Appellate Authority constituted headed by either a sitting or retired District Judge. But the proceedings must be expeditious. If the Magistrate concludes positively that the person would be better off dead than be a vegetable or a sympathy collector, then let the patient be condemned to death. Let his sufferings end. Let the sufferings of those to love him end if they too wishes so. If no man on earth could treat the patient successfully, let him rest in peace. Let the “trauma care” care the patient. If the patient is conscious and can speak or write, then his opinion also has to be given due predominance. If the person wishes to die, let him have the freedom. Why confine him to the rigours of a hospital bed? Here too, if there is any chance of full recovery, and if it can be guaranteed by any doctor, anywhere in the world then let him live and be subjected to treatment. Procuring opinions of doctors from any corner of the present e-world is not a tedious or impossible exertion. Still there arises a problem of whether the family can afford a domestic or foreign life saving medical magic. Let a fund be collected by the Government for the said purpose analogous to free legal aid given to the financially poor accused. Perhaps a fifty paise increase in any reven collected by the Government would suffice the said financial aid. But what the society demands forthwith is the right to die as distinguished from the right to commit suicide.

Consider the case of suicide. Once a person commits it, he is not an offender. On the contrary if he fails, he becomes one and penalty ensues. If he succeeds, then perhaps an abettor gets penalized. But what prompted that person to commit suicide? May be a severe mental trauma. Anybody at any point of time in life may have deliberated an unnatural death. But what about a person who thinks about dying all the time in order to put an end to his sufferings. He has done no wrong but cannot do it voluntarily. Perhaps he can consent to volitionally either by writing or orally. Doctors and beloved ones can testify for him. Let the committee headed by the Magistrate probe into the probabilities.

The sweep and ambit of right to life envisaged in Article 21 of the Constitution of India can of course be widened a bit more in this respect. Let the persons live healthily. Otherwise, if incurable diseases engulf the person let him die on his own volition supported by medical evidence. 

It is high time the law changes. Man is not made for law but law is made for man. Law is not something to be static it must be dynamic in every respect. Law as is rightly defined is nothing but the quintessence of the common sense of the society. It must be something reasonable and catering to the needs of the changing society. The spirit of law is not to be searched or founded upon any static ideology, but it must be found in the experience of the people. Otherwise the dichotomy between the written law and the truth would go on increasing. It is rightly said “the law is a living growth, not a changeless code” then it let it gratify the needs of the suffering. Let them not be ignored just because they can’t voice their thoughts. Let justice be done in each and every facet of life and let its ramifications multiply to accommodate the needy and the suffered. Static nature of law is not a dogmatic rule. As his Lordship C.K.Thakker J. had once correctly observed, the approach of the Court should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than ‘precedential’.