Painful Recollection

(By R. Renjith, Advocate, Ernakulam)

It is the normal human conduct to make every attempt to escape from a memory which brings pain. Though painful, my attempt here is to draw a picture with regard to the character and skills of a great lawyer who passed away at the age of 50, which is considered to be the most decisive and powerful stage, as far as a lawyer is concerned. These lines are result of constant and continuous inspiration of my inner soul to pen down a few lines about a person who left unheard some of his abilities and qualities. In other words, it can be termed as my tribute to the great personality.

Born to a doyen in the Bar, Sri. S. Vijayakumar never preferred to have his daily bread, without sweat. On the other hand, he liked to work hard and preferred to fight till the end. His days began at 3.30 a.m., making his presence sure at 4 in the morning before ‘Ernakulathapan’ to have a Darshan at the time of ‘Nirmalyam’. This was one thing, which he followed without fail. From 5 to 6 in the morning he regularly attended Health Club. Very particular in maintaining health, he was very careful in his diet, though sweets are ‘Achill’s heel’ to him. He used to be present in the office before the Clock strikes at 8.30 A.M. He used to leave the office for court by about 9.40 a.m. On completion of his daily work in the court, he preferred to be back in his chair without spending time, even among friends. Probably, this is the only reason why a section of the Bar in the High Court of Kerala maintained an opinion that he is a ‘tough nut to crack’. Being a person who got opportunity to associate with him and to have a close look at him, I can candidly say that he was otherwise. He was very lovable and very cordial to each one of us. He was very particular in maintaining healthy relationships with all of us in the office. According to him the duty of a junior lawyer is not restricted to merely asking adjournments. It was his habit to give long rope to his colleagues. He entrusted his clients, who ever it may be, to his juniors rather than the files, which is a rare phenomenon seen in this profession. Similarly, he was very particular in the matter of providing decent remuneration to all those working under him.

His approach to each case was different. His was a pragmatic approach. He was very powerful in his expressions. He possessed a unique style in drafting. His pleadings were excellent. Cases drafted by him stand testimony to his above said skills, He seldom took more than two hours to get himself equipped for advancing arguments even in murder case appeals. I still remember an incident where he was forced to get himself prepared within the limited time available in the morning session of the High Court to start his arguments in the post lunch session. When the attempt made by him to seek adjournment in a murder appeal failed, he got the records from the Court and started reading the files, sitting in the Court Room. He got an order of acquittal in his favour on the very next day.

I have the similar memories about him. Once he was canvassing for a proposition. The prosecution raised an objection stating that the settled position is otherwise. It is a fact that he was not having any authority with him to substantiate his contentions. Hearing the prosecution, the court suddenly replied, “if Mr. Vijayakumar says so, it is so”. The expression of the court shows the credibility he possessed.

He happened to appear before the very same bench, soon thereafter. There, he was pressing for bail in a murder case appeal, contending that his clients were juvenile at the time of commission of offence and thus they are entitled to get benefit out of that. The court was inclined to accept his request and the matter was posted for verification of the school certificates of the accused by the prosecution. When the matter was again taken up, the learned Public Prosecutor was fair enough to concede that some of the accused were juvenile at the time of commission of offence. In short, the court was about to accept his plea, Sri. Vijayakumar then stood up and submitted that “in view of recent pronouncement of the Supreme Court on the subject, my clients may not be entitled to get the benefits”.

He never compromised with professional ethics for transient pleasures. Clouting and canvassing were alien to this great lawyer. Once, one of my friends raised a doubt “Sir, isn’t it only just and proper that we give a portion of the income to the lawyer who engaged us”. The answer came all of a sudden "Those really and genuinely wanted me to appear need come to me. I am not prepared”.

He could command respect even from the Bench not merely because of the fact that he is the son of a doyen of the Bar but because of his behaviour, attitude and professional skills. He was bold in his submissions at the same time, courteous too. He seldom argued with the court, but argued before the court. He presented his case with excellence and his method of presentation and narration of facts were unique. For this, he could easily bank on his command over English language. He always maintained dignity in his submissions. Bargaining in the court is a matter totally alien to him. He was a role model to many in the field. With the sad demise of Sri. Vijayakumar, I can say without any hesitation that the Criminal Section of the High Court Bar became poorer. It was indeed a great loss to the Criminal Jurisprudence. As rightly pointed out by one of our friends, “there is hardly any one to advance such effective arguments like Sri. Vijayakumar did. There is none bold enough to say that ‘My Lord may ask my friends to be seated comfortably”. He was pointing out the lawyers who were gathering before the dice on a vacation sitting. 

It is difficult to accept the fact that the said towering personality is no more. It is more painful to accept the fact that there is none to occupy the vacant chair placed facing the entrance of the Chamber. 

A Sky-High, Sea Scape Forensic Air-cooled Magnificence --
A Five STAR Tower for the Bench -- Bar Elite –
Why then, should little Litigants Suffer
Jam-Packed in Slimy Spaceless Slums Alias Lower Courts

V.R. Krishna Iyer, Judge, Supreme Court

On February 13th 2006, when the Chief Justice -- a rare presence spoke in inaugural glow, there arose to the sky in official splendour a grand ‘canyon’ in reverse wonder and concrete commercial architecture, beating in height any Big Business tower, competing in air-conditioned interior decor five-star aesthetics. Was this super-tall four score crore cost edifice a dazzling shopping complex, with lavish marble floor and granite wall, and other novel gadgets, which sprang into a charming home of litigative justice as the noble Sabharwal lighted the lovely lamp and orated with dynamic ideas plus dull statistics of dockets, dead and alive. The hall was full and the glittering, air-cooled chambers lovely, the relaxing facilities added to the judicial mood. The magnificent mansion shone in the afternoon sun as the Queen of the Arabian Sea. None in town higher than the High Court in brick and mortar! But the horror of docket arrears, poor quality of justice, justices and justicing Parkinson’s Law and Peter Principles are pathological and corruption escalatory -- not cured by air-conditioning and extravagance. The luminous palace of justice, business decks and expensive technology made the perspective somnolescent. What was the great motif, the majestic objective and the flashy ornamention where “Lordships” laid down the law? Where only the rich could reach? India’s few are wealthy but Bharat’s vast are poor. The landless, the adivasi and the harrowing humans sans egalite and employment are never near the high bench, the lucrative bar and end in a long litigative highway to bankruptcy? The State itself lives on loans and is spend thrift and corrupt. To transact trade and commerce in millions of money, to build a palatial marvel like the Empire State Building or Sears Towers in the U.S. is can Kerala afford? When we build marble wonders and fancy structures we must remember our Founding Creed made as a nation on August 15th, 1947:

Long years ago we made a tryst with destiny, and now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially. At the stroke of the midnight hour, when the world sleeps, India will awake to life and freedom. A moment comes, which comes out rarely in history, when we step out from the old to the new, when an age ends, and when the soul of a nation, long suppressed, finds utterance. It is fitting that at this solemn moment we take the pledge of dedication to the service of India and her people and to the still larger cause of humanity. (Framing of India’s Constitution-Shiv Rao P-558)

To wipe every tear from every eye was our great pledge but today more tears, more sorrows, more, more justice for the millionaire more privation for the millions. On whose side are our robed brethren sitting on the bench.

We need urgently more judicial competence and compassion, socialist, secular ethos, more inexpensive litigation, free legal aid and radical reform of the arcane system--not Himalayan heights of concrete and granite, polished floors and finest facilities. Free, fine bungalows, free phone calls and electricity, luxury glories with free fuelled automobiles do not a great judge make when judgments are delayed, hearing of arguments are insouciant, ipse dixits logomachic and accountability absent, of course, with illustrious exceptions and paradigmatic wonders and sublime wisdom through judicial pronouncements:

There are two things against which a Judge ought to guard, precipitancy, and procrastination--             Clarke, Thomas

Great judges and exalted judgments do hallow our courts and I am proud of them. Do remember,-- no reflections on any judge, please, Your Lordships--some wise words of great jurists and statesman are set out below:

“If a free society cannot help the many who are poor, it cannot save the few who are rich.” --                   Clement Atlee

“We are approaching the status of an impotent society--whose capability of maintaining elementary security on the streets, in the schools and for the homes of our people is in doubt. At every stage of the criminal process, the system cries out for change.” -- Chief Justice Burger of the U.S.

“A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and three things could destroy that confidence and do incalculable damage to society:

That people come to believe that inefficiency and delay will drain even a just judgment of its value; That people who have long been exploited in the small transactions of daily life come to believe the law--In the larger sense--cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets.” --                    Chief Justice Burger of the U.S.

The lovely passages from a great jurist:

“A government founded upon anything except liberty and justice cannot stand. All the wrecks on either side of the stream of time, all the wrecks of the great cities, and all the nations that have passed away--all are a warning that no nation founded upon injustice can stand. From the sand-enshrouded Egypt, from the marble wilderness of Athens, and from every fallen, crumbling stone of the once mighty Rome, comes a wail as it were, the cry that no nation founded upon injustice can permanently stand.” -- Robert Ingersoll

The corporate lawyer, the corrupt professional and the jejune judge, whatever their alibi must account for terrible arrears, judicatures perform like caricatures. Parkinson’s Law and Peter Principle--I hesitate to explain these uncomplimentary expressions--make the court--less relevant unless their mission merges with the constitutional vision and make the right to life a reality.

The Bench and the Bar must appreciate Learned Hand:

I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with the books which have been specifically written on the subject. For in such matters everything turns upon the spirit in which he approaches the questions before him. The words he must construe are empty vessels into which he can pour nearly anything he will. Men do not gather figs of thistles, nor supply institutions from judges whose outlook is limited by parish or class. They must be aware that there are before them more than verbal problems; more than final solutions cast in generalizations of universal applicability. They must be aware of the changing social tensions in every society which make it an organism; which demand new schemata of adaptation; which will disrupt it, if rigidly confined.

The ethics of our profession, not the excellence of the Court as a charming building is what matters, not the mediocrities who sit by chance or argue as counsel that matters.

The lawyer representing business today....will be alive to the social, economic, and political implications of the time; he will avoid a narrow, short-sighted approach to his clients’ problems; he will have the courage to advise against a business program or device that, although legally defensible, is in conflict with the basic principles of ethics. Failing these, he not only will be doing a disservice to his client. That client may find itself in the position of winning a legal battle but losing a social war.

 -- GOSSETT, William T., The Corporation Lawyer’s Social Responsibilities 60 A.B.A.J. 1517, 1519(1974).

The spectacular cathedral or stupendous building which costs a little less than 100 crores and has several air-conditioned floors to accommodate Benches is distances away from the penurious litigant whose hunger for right and justice has no time and space while the court is engaged in proprietariat litigiosity. Our States are near bankrupt. Our budgets hardly bother about the basic constitutional obligations (like health and education) of the Socialist Secular Democratic Republic. Buildings do not a judicature make nor judicial numbers a great court. Justice is what people seek but fail to secure after resources are drained away by vertical profusion of appeals. Whichever party may win, the court, as an institution, is steadily losing. The new college for Judges set up in Bhopal has large promises to keep and long miles to go before it fulfills its fundamental task of delivering justice as commanded by the Great Mandate of the Preamble.

The Legend and His Legacy*

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

This hall is named in memory of the legendary lawyer Sri.Manual T.Paikeday, who died in June 1983. The furnishings (partly) are sponsored by his legacy in the profession, his son, Sr. Advocate Sri.Mathai M.Paikeday, (Supreme Court), to preserve the memory of his father.

Sri.Mathai Paikeday, my good friend, has borrowed my tongue to deliver the Sponsor’s Address, in his unavoidable absence from the country; he is away, possibly gazing at the Great Wall of China.

Sri Manual Paikeday was the profound portrait of a bold lawyer. He believed in the famous statement of Dr.Johnson that patience and submission are very carefully to be distinguished from cowardice and indolence. He did not believe in the abbreviation of time, and failure of hope. His arguments were worth his weight in gold. His adversary might fear him or hate him, but could not ignore him.

As a lawyer, Sri Manual Paikeday was confident, but not arrogant; firm, but not obstinate. He did not lapse into helpless acquiescence when the Judge asserted. As was the father, so is the son, Sri Mathai Paikeday. I had the good fortune of seeing Sri Manual Paikeday in action as a lawyer for over twenty six years. He once told me that juniors should convert the challenge into an opportunity.

As President of the Kerala High Court Advocates Association, I had to make an obituary reference, on the demise of Sri Manual Paikeday, before the First Bench, on 27-6-1983,.On that occasion, I had said: “It is said that the art of the actor is pathetically ephemeral, and he is in danger of being forgotten as soon as the applause has died away after his last exist. In Sri.Paikeday’s case, this statement is not true”. 

We shall ever forget to forget Sri.Manual T.Paikeday; especially, in these days when advocates hove been rendered white cane walkers.

Thank you. 

I am At One with KLT

T.P. Kelu Nambiar, Sr. Advocate

 I read with interest and indignation, (interest in the KLT and indignation towards the pirates), the announcement and appeal, entitled "Piracy of Copyrighted Contents of KLT", Published in Part 7, 2006 (1) KLT (of February 13). A serious situation stands revealed. There is genuine reason for KLT to be aggrieved against the serious surrogancy. I find the need for a rapid response. Hence this notelet.

 Piracy and plagiarism are aberrant and abhorrent, especially in these days when software piracy is rampant, abusing and violating copyright. Therefore it is time to get serious about the secretive and deceitful action, to the loss and disadvantage of KLT.

 Kerala Law Times is not a mere law publishing house; I should think, it is an institution closely attached to the Kerala judiciary, meaning, the Bench and the Bar. Therefore KLT deserves all support, backing and protection.

 For lending support to the stand taken by KLT, I made a research. I came across an observation by Mr.Justice Crowder, in Sweet v. Benning, (1855) 139 ER 838. The following is the observation:

 "The head-note or the side or marginal note of a report is a thing upon which much skill and exercise of thought is required, to express in clear and concise language the principle of law to be deduced from the decision to which it is prefixed or the facts and circumstances which bring the case in hand within some principle or rule of law or of practice. The question, according to my notion, is whether that is not something substantial in which the law gives the author or proprietor a copyright. It seems to me that although the object of the defendants was simply to put together after a manner of their own, and for a purpose quite different from that for which the plaintiffs published their work, these marginal notes, with others derived from other similar sources, nevertheless they do avail themselves, to an extent which the law does not warrant of the labour and skill and capital of the plaintiffs, and have appropriated to their own use that which is substantially the property of the plaintiffs, and a property of a description which the statute intended to secure to them. I have, therefore, thought with great reluctance and difficulty, come to the conclusion, that however, useful and meritorious the defendant's work may be, they were not justified, in making the use they did of the plaintiffs' work, but were guilty of piracy within the meaning of this Act of Parliament".

 Mr. Justice Kotval, of the Bombay High Court, had noted the observation of Mr. Justice Crowder, in N.T. Raghunathan v. All India Reporter, AIR 1971 Bom. 48, and, in agreement with the observation, held that a genuine abridgement is an original work and can be the subject of infringement of a copyright. The learned Judge relied on the decisions of the Madras High Court, in Govindan v. Gopalakrishna (AIR 1955 Mad. 391), of the Allahabad High Court, in Marshall v. Ram Narain, (AIR 1934 All. 922), and of the Lahore High Court, in G.G. Harrap & Co. v. Harbans Lal (AIR 1935 Lah. 282), for the above view.

 Though, at first blush, it might appear that Mr. Justice S.K. Mahajan has taken a different view in Eastern Book Company v. Navin J. Desai (AIR 2001 Del. 185), a reading of the judgment would show that his Lordship only laid down that mere reproduction of a part of the judgment in the head-note is not an abridgement of the judgment and no copyright can be claimed therein. This is different from saying that a genuine abridgement of the judgment, bestowing much skill and exercise of thought and expressing in clear and concise language the principle of  law to be deduced from the decision to which it is prefixed, is not an original work and cannot be the subject of infringement of a copyright. In fact, Justice S.K. Mahajan did not refer to the decision of Justice Kotval. The Delhi High Court has not taken a view different from that of the Bombay High Court.

 I should think that KLT is on firm ground when they assert that copyrighted contents of KLT are being pirated. Let the legal fraternity of Kerala be at one with KLT. 

The Dawning Years

(Siby Mathew, Advocate, Ernakulam)

The decade of the seventies has drawn to a close. The year 1979 has flown by fast. The dawning year blooms with hopes and promises. The expiring year has been, by and large a year of little achievement and general disenchantment. While a part of the world lives in great comfort and even affluence, much of the larger part suffers from abject poverty and, in fact, the disparity is continuing to widen. This lamentable situation has contributed to the aggravation of world tension. For untold millions 'equality, liberty, and fraternity' means fraternity of the street corner, liberty to starve and equality in death. Men and parish dogs still fight over morsels of food in many big cities. There are countries where people go hungry, and death due to starvation and chronic malnutrition is accepted as a natural phenomenon. The spiralling prices and scarcity of essential commodities have reached the limits of endurance, or perhaps it has not, for the endurance of the people seems to be immense and they have not yet resorted to violent means in order to relive their suffering.

The notable events in the international scene are, the assassination of Earl Mountbatten and President Park of South Korea, the fall of the Shah and the keeping of the hostages in Iran, the overthrow of President Idi Amin of Uganda, a woman becoming the Prime Minister of Britain and the new regime in Afghanistan installed under the influence of Russia.

Coming to the national scene, we had the mid-term elections to the Lok Sabha and the unprecedented glorious victory of Mrs. Indira Gandhi. The Janatha Ministry which was voted to power with a thumbing majority had to step down within three years of its assuming office as a result of scramble for power, detrimental rivalry and shameful daily defections of political leaders. The year 1979 can rightly be called the 'year of Defections" as far as India is concerned. The successor Ministry was still worse and it could remain power for hardly a month. It was then that the President had to take the decision to dissolve the Lok Sabha and order interim polls in India, a decision which has been the subject of great controversy.

In a democratic order none can be above law. While it is desirable to inject justice into politics, it is disastrous to inject politics into justice. The bane of our country at present is that there are too many politicians. Politics has crept into every sphere of life. Much was promised but not much was achieved. Time bound programmes are constancy harpad but no effective breakthrough has emerged Problems of poverty and stagnation continue to confront the nation Atleast our politicians who are once bought should stay bought The political stability in India has become a gamble. The composition of the political partie changes as frequently as the patterns in a kaleidoscope. One almost likes the attitude of a Negro who once answered thus:

'Rastus', he was asked, 'for whom have you voted?'

'For the Republican candidate', he answered?

"Why?" he was asked

"Weil it is like this The Republican candidate gave me 20 dollars and the Democratic gave me 30. I voted the Republican because of the two he was less dishonest."

Unfortunately the result of electioneering is that the more suitable persons keep out of elections.

X                 X                 X

Arrears have become part of the working pathology of courts. They have been with us for a long time. Given the current styie and structure of litigation, lawyering and adjudication, they are likely to stay with us for a long time. The annual filings are still above the figures of disposal and a remnant is left annually. In the words ot Indian Chief Justice Chandrachud, "the mounting arrears will cause the breakdown of our judicial system within five years". Unless the figures of disposal are well above that of annual filings, the problem of arrears will never be solved. It is almost impossible for the court as it is presently constituted to meet all the demands made on its jurisdiction Litigants and lawyers have overburdened the court. Its jurisdiction has become very wide. Clearly a lot of issues about the working of the court need to be reconsidered if the court is to survive as a viable and efficient institution. Once a litigation is initiated it drags on like a turtle.

If justice is costly why is it so. Is not exorbitant court fee a burden on the weaker sections of the community? Most socialistic countries have no court fee at all In some others court fees are next to nothing. It is necessary to make a drastic reduction in court fees.

Today we have a proliteration of laws which is staggering in its quantity and fineness. Our laws would be better obeyed if they were fewer, better understood if they were clearer and more permanent if they were not changed so frequently. Almost every Act passed is immediately subjected to amendments. When we compare the present day laws with some of the older ones, such as Penal Code or Evidence Act, we notice that the old Acts have continued for a century and more without substantial amendments. What is perhaps of urgent importance is the reform of our procedural laws.

It is thus obvious that we must run faster and faster and increase supply of food, improve transport, health, education etc. Unless we do so we shall only be striving all the time to maintain the status quo. Lawyers today are divided on every issue inside and outside the courts. The legal profession should be the guardian and watchdog of the rights the Constitution guarantees The Chief Justice of U. S. A. Mr. Warren once said. "If lawyers are not to be the watchmen for the Constitution, on whom can we rely".

Lastly, though the much awaited Lawyers Provident Fund Bill was introduced in the Assembly, along with two other bills, the Provident Fund Bill alone was referred to the Select Committee while the other two bills were passed. It is a pity that there was none to take up the cause of the legal profession and insist on the passing of the Bill. Let us hope that early steps will be taken by the new Assembly to get the bill passed.

We cannot foresee what is in the womb of time and what may happen in the next twelve months. Let us hope that the times will be useful and prosperous for all of us.