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.