Cheers Home Buyers – Now You Can Initiate Proceedings for
Liquidation of Real Estate Company

(By Dr.P. Syamjith, Ph.D. in Law, Chennai)

Great news to home loan buyers or allottees who have invested their hard earned money into real estate projects. Now they shall be treated as financial creditors and participate in the meeting of Committee of Creditors. This in turn means that they can file application for liquidation of real estate companies and even raise their claims in the Committee of Creditors who will consider the resolution plan of the company. They will be able to decide the destiny of the company they have invested to cherish the dream of owning a home.

The Lok Sabha cleared the amendments to the Insolvency and Bankruptcy Code (IBC) that provide relief to home buyers who as financial creditors will be able to take part in the resolution process of the liquidation of Real Estate Company. The bill which was passed by Lok Sabha on July 31, 2018 was approved in the Rajya Sabha by a voice vote. 

The Hon’ble Supreme Court of India has also given their stamp of approval vide its judgement delivered on 9th August, 2018 in Chitra Sharma and Ors. v. Union of India
(W.P.No.744/2017) and held that as a result of the amendment brought about in the definition of ‘financial debt’, amounts raised from allottees under real estate projects are deemed to be amounts “having a commercial effect of a borrowing”. Hence out standings to allottees in real estate projects are statutorily regarded as financial debts. Such allottees are brought within the purview of the definition of ‘financial creditors’. The Section 7 of the IBC creates a statutory right in favour of financial creditors to initiate the corporate resolution process.

The Insolvency and Bankruptcy Code (IBC), 2016 was enacted by the Central Government to consolidate and amend the laws relating to reorganization and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner. Due to the huge surge in Non Performing Assets (NPA) level of banking sector, the Government felt that the early resolution of the companies will help in recovering substantial chunk of NPA.

Of late, the financial creditors have started initiating the liquidation proceedings against the real estate companies who have failed to repay the dues to the Banks. The resolution proceedings initiated by the Banks against the companies such as Jaypee Infotech and Amarpali Group are few such instances.   This amendment is a tool to protect the interest of the home buyers will be taken care in case of liquidation of Real Estate companies.

As it was originally enacted, IBC did not contain an adequate recognition of the interests of home buyers in real estate projects. The home buyers who have invested their hard earned money were not given any priority in case of liquidation of the company or any say in the liquidation proceedings. Later on, due to the constant appeal made by the home buyers across the country, the Central Government brought out the Insolvency and Bankruptcy (Amendment) Ordinance, 2018 which came into force on 6 June 2018 to address the concerns of the home buyers. As a result of the Ordinance, home buyers are brought within the purview of financial creditors under the IBC.

No doubt the Home buyers are vital stake holders while deciding the liquidation proceedings of real estate companies. Most of the home buyers have invested the money in real estate project by accumulating their lifelong savings and borrowings from
Banks/Financial Institutions. The process of corporate insolvency resolution directly impacts upon their rights and interests.

In terms of Section 7 of IBC, when a company failed to repay the dues, the financial creditor is entitled to file an application before the National Company Law Tribunal for initiating corporate insolvency resolution process against the defaulting company.

In terms of IBC, the term financial creditor means any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred, The term financial debt is defined as a debt along with interest, if any, which is disbursed against the consideration for the time value of money and includes–

(f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the commercial effect of a borrowing;

It is  explained in the Act that any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing; and the expressions, “allottee” and “real estate project” shall have the meanings respectively assigned to them of the Real Estate (Regulation and Development) Act, 2016 (16 of 2016).

As a result of the amendment brought about in the definition of ‘financial debt’, amounts raised from allottees under real estate projects are deemed to be amounts “having a commercial effect of a borrowing”. Hence out standings to allottees in real estate projects are statutorily regarded as financial debts. Such allottees are brought within the purview of the definition of ‘financial creditors’.

Section 7 of the IBC creates a statutory right in favour of financial creditors to initiate the corporate resolution process. It says that a financial creditor either by itself or jointly with other financial creditors or any other person on behalf of the financial creditor may file an application for initiating corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority when a default has occurred. In terms of the IBC, the interim resolution professional shall after collation of all claims received against the corporate debtor and determination of the financial position of the corporate debtor, constitute a committee of creditors. Financial creditors are entitled to a voting share proportionate to the extent of the financial debt owed. It is a welcome step from the Central Government and the highest court of the country.

Let’s hope that the new amendment and the consequent judgement of the Supreme Court will ameliorate the hardships of the home buyers who are waiting so long to receive the possession of their dream home.  It is said that an act or judgment will have multiplier effect if it is used to its optimum.  Hope further that the home buyers will rise up to the occasion as a united front and will keep the law going on to establish a new jurisprudence to grant relief to home buyers in distress.

* Interview of Mr. Justice Kurian Joseph (Former Judge, Supreme Court of India)

By Shri. Prashant Padmanabhan, Advocate-on-Record on behalf of “The Leaflet”

December 5, 2018

    Prashant Padmanabhan: Sir, today is the fourth death anniversary of Justice V.R.Krishna Iyer.  Anything particular about J. Krishna Iyer, which you would remember?

Justice Kurian Joseph (Retd.):  I had a close association with him. Together, we handled a very sensitive issue between two communities in Kerala.  He has spoken in the public meeting that I am the messenger of Peace.

 Prashant Padmanabhan: Justice Krishna Iyer had suggested Appointment, Performance and Punitive Commission for Judges.  Your thoughts?

Justice Kurian Joseph (Retd.): How will you do it and who will do it?  An Amendment in the Constitution may be required for review of  performance of High Court Judges by the Supreme Court.

 Prashant Padmanabhan:  What about Supreme Court Judges? 

Justice Kurian Joseph (Retd.): I don’t agree for a committee outside the Consti-tution.  It is not ripe for India.  Indian democracy/policy has not reached that level of maturity.  It could be left to the collegium on whose recommendation the C.J.I. can withdraw work.

 Prashant Padmanabhan: Mr.Fali Nariman had suggested that there should be a portrait of J. Krishna Iyer in the Supreme Court. We have given a memorandum.
Do you think that it should be there. 

Justice Kurian Joseph (Retd.): I support.

 Prashant Padmanabhan: Most memorable case in your position as a Judge of the Supreme Court or in the High Court?

Justice Kurian Joseph (Retd.):   Every single case I dealt with is memorable.  Particularly those involving the weaker sections.

Prashant Padmanabhan:  Most memorable case as a lawyer.

Justice Kurian Joseph (Retd.):  The one reported in 1988 (1) KLT 727. One paragraph encomium to me by the Chief Justice’s Bench.  Special mention for excellent preparation by Shri Kurian Joseph who led the arguments.  I was appearing as a private lawyer.  When I was just eight years in practice. Chief Justice was J. Malimath.

 Prashant Padmanabhan: You’ve worked with seven seven different Chief Justices. They are Hon’ble Mr.Justice Altamas Kabir, Hon’ble Mr.Justice P.Sathasivam, Hon’ble
Mr.Justice R.M.Lodha,  Hon’ble Mr.Justice H.L.Dattu, Hon’ble Mr.Justice T.S.Thakur, Hon’bleMr.Justice Jagdish Singh Khehar and Hon’ble Mr. Justice Dipak Misra. Out of them, whom do you consider the best Chief Justice of India? And the reason why?

Justice Kurian Joseph (Retd.): Not including the present C.J.I., because he is a sitting Judge. The best was Chief Justice R.M.Lodha,  I would rate him the best because of his transparency, objectivity and clarity.  Nobody has raised a little finger against him.  He is the only CJI, out of the seven, who left without a single allegation.

 Prashant Padmanabhan: If you consider the past two decades. 2000-2010 and 2010-2018, whom do you consider the best Judges?   

Justice Kurian Joseph (Retd.): Again, I will not include any sitting judges. Barring the sitting, I can mention CJI Lodha.

 Prashant Padmanabhan: Can you name a few lawyers who are outstanding?

Justice Kurian Joseph (Retd.): There are quite a few.  But it won’t be proper for me to name them.  I found myself to be fortunate sitting on the Bench listening to them. Starting with Ram Jethmalani who retired from the profession now and the doyens like Fali Nariman.

 Prashant Padmanabhan: Now that you are retired, can you judge yourself? Justice Holmes has mentioned about “Inarticulate major premise” of a Judge.  Would it be correct, if we say that “compassion” inspired by your deep religious leaning and a disciplined life, was your inarticulate major premise? 

Justice Kurian Joseph (Retd.): Justice tempered with mercy and righteous indignation against injustice.

 Prashant Padmanabhan: Was there any occasion/s in which your beliefs/convictions conflict with your duty as a Judge?  In tough cases like death penalty, abortion and divorce?  Where there is sharp division even among the Judges of the United States Supreme Court. 

Justice Kurian Joseph (Retd.):  I have done justice to my oath.  My oath is to uphold the Constitution and the laws without fear or favour, affection or ill-will. My faith is my personal matter.

ON DEATH PENALTY

 Prashant Padmanabhan: How did you deal with death penalty cases?  Have you ever upheld a death sentence as a Judge either in the Kerala or Himachal Pradesh High Courts or in the Supreme Court? 

Justice Kurian Joseph (Retd.): I have commuted a death sentence to life in 2014.  I was a puisne Judge then siting with Justice C.K.Prasad.

ABORTION

Prashant Padmanabhan: Did you think twice before allowing abortion of a womb? There is an Order dated July 28, 2015 wherein you were part of the Bench, allowing a 14-year-old rape victim to abort the 24-week pregnancy, ‘only if there is a serious threat to her life’, if the child is not aborted. 

Justice Kurian Joseph (Retd.): That is the mandate under the Medical Termination of Pregnancy Act, 1971.

MATRIMONIAL DISPUTES

 Prashant Padmanabhan: How did you feel when a 10-year-old child handed over a “thank you card” for settling the disputes between his warring parents? It formed part of your judgment? 

Justice Kurian Joseph (Retd.): It was a very satisfying moment in my career as Judge. The child was able to touch justice. When he got justice, he was happy.

ON CERTAIN DECISIONS OF THE SUPREME COURT

 Prashant Padmanabhan: What is your opinion about some of the Supreme Court Judgments; one dealing with Section 377 I.P.C. (reading down adult consensual homosexuality in private) and Section 497 I.P.C. (on adultery). There was some observation regarding women’s sexual autonomy? 

Justice Kurian Joseph (Retd.): I have my difference of view on both.  I don’t agree to both.

 Prashant Padmanabhan: Whether homosexual marriages are to be allowed?  If that stage comes?

Justice Kurian Joseph (Retd.): I don’t agree. It defeats the purpose of marriage.

 Prashant Padmanabhan: What according to you should be included in ‘Constitutional morality’? There was a recent comment by the Law Minister that it should not differ from Judge to Judge. 

Justice Kurian Joseph (Retd.):  Liberty, equality and dignity.

 Prashant Padmanabhan: LGBT community challenged the application of Section 377 IPC on those grounds. Liberty, equality and dignity. Your comments on that? 

Justice Kurian Joseph (Retd.): There may be some cases where all these principles will apply. If there is a case where one of the constituting factors of constitutional morality conflict with the other, then the constitutional morality principle should not be applied.

 [Subsequently, in another interview by Suhant Singh of Indian Express on behalf of Leaflet on 7.12.2018, Justice Kurian Joseph (Retd) clarified that it is his personal opinion and  “as a Judge, while deciding these questions, liberty, equality and dignity of LGBT community should be definitely taken into consideration.”]

ABOUT GIVING EMPLOYMENT TO AN ACID ATTACK VICTIM

 Prashant Padmanabhan: Before coming to Judge’s selection and appointment, I want to ask you about another very important appointment made by you. Sometime in December, 2013 when you were a junior Judge of the Supreme Court, you had given appointment in the Supreme Court  to an acid attack victim.  How did you look at this incident? 

Justice Kurian Joseph (Retd.): Looking at her plight, I could not find a better person to opt for appoint, though there were several requests pending with me.

SELECTION OF JUDGES

 Prashant Padmanabhan: A three-judge Bench of Supreme Court comprising of the present C.J.I., Justices Rohinton F.Nariman and Navin Sinha, in a judgment dated October 12, 2017, in Writ Petition (C) No.454 of 2015, titled Ms. Indira Jaising v. Supreme Court of India, through Secretary General, laid down the criteria for selection of lawyers as senior advocates. Supreme Court notified the guidelines and now applications are also invited on August 6, 2018. A total of 105 lawyers have applied and now a notice dated November 13, 2018 is issued inviting suggestions of other stake holders. Any comments on that? 

Justice Kurian Joseph (Retd.): That is now the law. It is done to ensure objectivity and transparency.

 Prashant Padmanabhan: Why can’t we have such an objective criteria for the selection and appointment of Judges to the High Court and Supreme Court?  This will be a big step in ensuring transparency.  

Justice Kurian Joseph (Retd.): Who said it is not there? It is there in the selection of Judges. These factors are assessed by Collegium.

 Prashant Padmanabhan: Is it in consonance with democratic principles that a Collegium of a few Judges alone selects Judges for appointment?

Justice Kurian Joseph (Retd.): It is done only to ensure independence of judiciary. Person appointed should not feel obliged to someone outside the system  who may have an interest in the outcome of litigation.

 Prashant Padmanabhan: Can we have system of appointment similar to UK or USA?   

Justice Kurian Joseph (Retd.):   Not for India as of now.

 Prashant Padmanabhan: Sir, in the Constitution Bench judgment wherein NJAC was held unconstitutional, you’ve observed that the Collegium system needs to be improved requiring a “glasnost” and a “perestroika”. Are you satisfied with the working of the Collegiums system at present? Has the improvement been made?

Justice Kurian Joseph (Retd.): Still not. Though quite a few improvements are made.

 Prashant Padmanabhan: What is your opinion regarding appointing senior advocates instead of only retired High Court/Supreme Court Judges to different Commissions, quasi judicial bodies etc?  

Justice Kurian Joseph (Retd.): Very welcome suggestion.

 Prashant Padmanabhan: Any opinion on retired Judges opting for different commissions?

Justice Kurian Joseph (Retd.):  There is no harm in it.

 Prashant Padmanabhan: Any comment about a cooling-off period between retirement and fresh appointment?

Justice Kurian Joseph (Retd.): Where the political executive perceives it as a charity, one should not take up it as assignment.  No Judge shall go after them for appointment.  The Government should go after them.

CONTEMPT

 Prashant Padmanabhan: Is the position of a High Court Judge as important and almost on par with the Judges of the Supreme Court, in view of these following provisions:

Appointment by same authority Art.124, Art.217. Removal by same procedure Article 124(4) and Article 217(1)(b) which refers to Article 124(4). Bar on discussion in the House Art.122 and Art.212. According to Article 127(1) of the Constitution, sitting Judges of the HC can act as ad hoc Judges of the Supreme Court?

Justice Kurian Joseph (Retd.): Both are Constitutional Courts.   Supreme Court has no supervisory control over the High Courts.

 Prashant Padmanabhan: Do you think that there should be supervisory jurisdiction for the Supreme Court over High Courts?

Justice Kurian Joseph (Retd.): Any such change may affect Federalism.

Prashant Padmanabhan: Can a sitting Judge of the Hon’ble High Court be punished for contempt of Court? 

Justice Kurian Joseph (Retd.):  Yes.

 Prashant Padmanabhan: Can a Judge of the Supreme Court be punished for contempt
of Court? 

Justice Kurian Joseph (Retd.):  Yes. Why not?

 OTHER ISSUES

 Prashant Padmanabhan: What is your view on the creation of four regional Courts of Appeal as final appellate courts, while restricting the Supreme Court of India to its true function as a Constitutional Court, as suggested by Mr.K.K.Venugopal?

Justice Kurian Joseph (Retd.):  I would agree.

Prashant Padmanabhan: Would it help in reducing the heavy burden on the Supreme Court? 

Justice Kurian Joseph (Retd.): Not only reduction of pendency in the Supreme Court.  It would ensure speedier justice to People.

Prashant Padmanabhan: Sir, Mr.Fali Nariman has suggested increasing the age of retirement of Judges from 65 to 70.  Do you agree? Should it be same for High Court and Supreme Court Judges or different? 

Justice Kurian Joseph (Retd.): I agree. To me, every judicial officer, starting with Civil Judge Junior Division to Supreme Court Judge should retire by the age 70. I agree and take it forward.

 Prashant Padmanabhan: Previously, there had been many High Court Chief Justices who refused to accept SC judgeship.  In your career as a Judge, have you ever met any single HC Judge who declined to accept a SC berth?

 Justice Kurian Joseph (Retd.):  I have not seen.

 Prashant Padmanabhan: How often did you refer to Constituent Assembly Debates? In India, initially the Courts avoided referring to CAD, but gradually it changed. Was there occasions in your tenure as a Judge, to refer to CAD?  

Justice Kurian Joseph (Retd.):  Yes, many cases.  Particularly NJAC.

Prashant Padmanabhan: C.J.I. T.S.Thakur had a plan and constituted  five-Judge benches on a regular basis.  How far it is a good idea, in reducing pendency?

Justice Kurian Joseph (Retd.):  Certainly a good idea; any such move is welcome.

 Prashant Padmanabhan: What is your opinion about giving more importance to drafting skills and reducing the time for oral arguments? 

Justice Kurian Joseph (Retd.):  I would agree.

 Prashant Padmanabhan: What about fixing a time limit for any case?  Irrespective of which senior is arguing? Only Justice R.F. Nariman’s judgment in Md.Ariff v. Supreme Court, (2014) 9 SCC 737, fixed 30 minutes for review in death penalty cases.  Isn’t it wise to fix such time limit for all final hearing matters?

Justice Kurian Joseph (Retd.): Has any Court been  able to limit?  In practice, no Bench was able to stick to that time limit. Because to deal with life of a person, it requires details regarding the application of the parameters.

 Prashant Padmanabhan: Will it be better if lawyers submit written submissions or argument notes before the final hearing date? 

Justice Kurian Joseph (Retd.):  I agree .

 Prashant Padmanabhan: What is your view on Courts, discharging the board if other cases cannot be taken up?  This will save lot of time of lawyers. 

Justice Kurian Joseph (Retd.): Ideal thing to do. I have always done that.

FOREIGN JUDGES

 Prashant Padmanabhan: Sir, the present Chief Justice of the United States Supreme Court, John Roberts, made some interesting remarks to the Senate Committee on the Judiciary, during his confirmation hearing.  To quote him: “Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.” Do you think that sometimes Indian Judges are crossing the limit of an umpire?

Justice Kurian Joseph (Retd.):  In the Indian context, the Judge is not an umpire.

 Prashant Padmanabhan: Do you think that such type of intense examination of the candidate before being appointed as Judge is good for India? If not by lawmakers, by an Appointment Commission as is being done in England?

Justice Kurian Joseph (Retd.): That is being done in the Subordinate judiciary.  Not there in High Courts or Supreme Court.

 Prashant Padmanabhan: Recently, Judge Brett Kavanugh has undergone an intense procedure in the hearing before Senate Committee on the Judiciary, because of the allegations about his sexual misconduct and CNN called his confirmation as a national disgrace. Do you think that such a transparent system of appointment will go a long way in ensuring transparency in judicial appointments? 

Justice Kurian Joseph (Retd.):  100%.

 Prashant Padmanabhan: Sir, a liberal Judge in the US Supreme Court, J. Ruth Bader Ginsberg, commented that she will move to New Zealand, if Trump is elected President. 
J. Ruth Bader Ginsberg is now 85-year-old and still continuing in office. Perhaps to maintain the equilibrium. Any comment?

Justice Kurian Joseph (Retd.):  I have no comment.

 Prashant Padmanabhan: Recently, President Trump has described a certain Judge as an “Obama Judge”.  Chief Justice John Roberts rebuked President Trump for that but the President reiterated it.  Is it imaginable in India?

Justice Kurian Joseph (Retd.): Such public attributions, nobody would dare to do it in India.

 Prashant Padmanabhan: In the United Kingdom, Judges of Supreme Court have declared their backgrounds. Two Judges, Lady Black and Lord Briggs have proudly declared that they are the first lawyers in the family.  Do you think that the first generation law graduates are having a disadvantage in legal profession in India? 

Justice Kurian Joseph (Retd.): I don’t think so. I am a first generation lawyer.

 Prashant Padmanabhan: Sir, then exceptions emphasise generality. There is a general perception that one needs a godfather to be successful in the legal profession. 

Justice Kurian Joseph (Retd.): Perception is there.  But that is not correct.

Prashant Padmanabhan: What is your opinion regarding selection of junior advocates without any experience at the Bar, to positions as Judicial Magistrates/Civil Judge junior division/still called Munsiff in some States? 

Justice Kurian Joseph (Retd.): I am against it.

 Prashant Padmanabhan: Do you think that the word Subordinate (Judiciary) in the Constitution be replaced with some other words dignified word like Civil or Criminal Court?

Justice Kurian Joseph (Retd): Subordinate to whom? Subordinate to the High Court.  Not subordinate to the High Court Judge.

 Prashant Padmanabhan: Mr.Gopal Subramanium has opined that all Courts are Constitutional Courts. Your opinion?

Justice Kurian Joseph (Retd.):  In a sense, yes.

 Prashant Padmanabhan: What is your view on Government segregating the name of Gopal Subramanium from a list sent by collegium?  Was it proper?

Justice Kurian Joseph (Retd): Government should have referred back the recommen-dation.

 Prashant Padmanabhan: Any comment on Justice Jayant Patel’s resignation?

Justice Kurian Joseph (Retd): No.

 Prashant Padmanabhan: What is your message to fellow Judges? 

Justice Kurian Joseph (Retd.):  To be humane, clear and consistent.

 Prashant Padmanabhan: What is your message to lawyers, especially young lawyers?

Justice Kurian Joseph (Retd.):  To be clean in conscience and clear in thoughts.

* Reproduction of the Interview conducted by the Leaflet, with the permission of the Leaflet and Senior Adv. Ms.Indira Jaising.

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FÃm a[yØ NÀ¨Ifpw hnhn[ coXnbnepÅ hnk½X¯n \n¶pw BWv Bcw`n¡p¶Xv F¶XnÂ\n¶p Xs¶, BbXn a[yØ NÀ¨kvXw`\§Ä adnIS¡m\pÅ, a[yØsâ kzXan²tam, BÀPnXtam, c­Ipw IqSnbtXm Bb IgnhmWv ]et¸mgpw a[yØ NÀ¨sb hnPb¯nte¡v \bn¡p¶Xv.  C§s\bpÅ a[yØ NÀ¨ kvXw`\§Ä GXv L«¯nemtWm Hcp a[yØt\m, ]mÀ«nIÄt¡m andIS¡m³ IgnbmsX hcp¶Xv At¸mÄ a[yØ NÀ¨ ]cmPbs¸SpIbpw, NÀ¨IÄ ]cyhkm\n¨Xmbn a[yØÀ {]Jym]n¨v a[yØNÀ¨ ]ncn¨v hnSpIbpw (Terminate) ho­Ipw tImSXnIÄ Sn tIknsâ tImSXn \S]SnIfpambn apt¶m«p t]mIpIbpw sN¿p¶p.

IpSpw_XÀ¡§fn {]tXyIn¨pw `mcym`À¯r _Ôhpambn _Ôs¸« XÀ¡§fmb hnhmltamN\w, Ip«nIfpsS c£mIÀXrXzw, c£m]me\w, kµÀi\ AhImiw, Poh\mwiw XpS§nb XÀ¡§fn a[yØNÀ¨ kvXw`\w Ft¸mÄ thWsa¦nepw kw`hn¡mhp¶Xpw FÃmbvt¸mgpw kw`hn¡p¶XpamW.v ChnsS a[yØsâ AXn hnZKvZamb ]mShhpw, {]hÀ¯n ]cnNbhpw, hnhn[Xcw adp]cnlmc§Ä \nÀt±in¡m\pÅ Ignhpw H¶psIm­Ip am{Xambncn¡pw ]mÀ«nIÄ X§Ä¡v Ccp¡q«À¡pw, k½Xamb Hcp Xocpam\w FSp¡m³ Ignbp¶Xv.

a[yس Hcn¡epw Ccp I£nIfn Btcbptam, Hcp I£nsb X\nt¨m Xm³ \nÀt±in¨v AYhm A`n{]mbs¸Sp¶ ]cnlmcamÀ¤§sf kzoIcn¡phm³ th­In I£nIfn k½À±w sNep¯phm³ ]mSnÃm¯XmWv. I£nIÄ k½À±¯n\p hgt§IXpanÃ.

ChnsSbmWv IpSpw_ XÀ¡ ]cnlmc¯n a[yØ-NÀ¨bpsS {]m[m\yw.

a[yØ-NÀ¨bpsS XoÀ¸v kmamt\y\ Ipdª kab¯n\pffn kw`hn¡p¶Xn\m CXv I£nIfpsS `mhnsb A[nIw _m[n¡msXbpw Ccn¡p¶p.

tImSXn XÀ¡ ]cnlmc¯nsâ ]cyhkm\¯nsâ kab ssZÀLytam, km¼¯oI _m[yXtbm {]hN\mXoXamWv. 

kz¯v kw_Ô XÀ¡¯n DSaØmhImiw, I¿hImiw, ]m«mhImiw, ]n³XpSÀ¨mhmImiw, ]Wbkw_Ô XÀ¡w, IpSnInS¸mhImiw PzÞhImiw, D]tbmKmhImiw XpS§nbhbpw, k¼¯v XÀ¡§fn ]WanS]mSpambn _Ôs¸« FÃm XÀ¡§fpw DÄs¸Sp¶p. 

tImSXn A\p_Ô a[yØ NÀ¨bn A`n`mjIcpw a[yØ NÀ¨bpsS `mKambXn\m A`n`mjIcpsS D¯chmZnXzhpw, NpaXebpw {]Xn_²Xbpw AhÀ tImSXnbn X§fpsS I£nIfpsS hmZapJw D¶bn¡p¶ coXnbn \n¶pw hn`n¶amb coXnbn Bbncn¡pw.  a[yØ NÀ¨bn ]s¦Sp¡pt¼mÄ sN¿p¶Xv ChnsS X§fpsS I£nIÄ¡v thI­n hmZ{]XnhmZ§Ä apt¶m«ph¨Ã X§fpsS I£nIsf klmbn¡p¶Xv. adn¨v A\pcRvP\ kw`mjW¯n\v DXIpw hn[w X§fpsS I£nIsf AhchcpsS tIÊnsâ KpWtZmj§Ä D]tZin¨pw Ahkm\ hn[n D­ImIphm³ FSp¡p¶ Imehnf¼w kqNn¸n¨pw, hn[n \S¸n D­ImIp¶ ImeXmakhpw, aäv Akm[mcWambn D­Imhp¶ hn[n \S¯n¸v kvXw` kµÀ`§fpw {]iv\§fpw Nq­InImWn¨pw, XzcnXKXnbn Xocpam\§Ä D­ImIpt¼mÄ D­ImIp¶ KpWKW§sf ImcyImcWklnXw hnhcn¨v sImSp¯pw ]ckv]c hn«p hogvNbv¡v thI­n am\koIambn X¿mdm¡p¶Xnt\msSm¸w Xs¶ Mediation settlement agreement X¿mdm¡p¶Xn\v I£nIsf {]m]vXcm¡n klmbn¡pIbpw BWv sN¿p¶Xv.

AXmbXv A`n`mjI³ tImSXnbn \ymb[n]s\ XoÀ¸v I¸n¡p¶Xn\pth­In \nba¯nsâbpw, sXfnhnsâbpw hyJym\w \ÂIn klmbn¡pt¼mÄ litigation lawyer Bbpw, a[yØ NÀ¨bn I£nIsf ka\zb¯nsâ ]mXbnte¡v sIm­Iphcm³ klmbn¡p¶ a[yØ NÀ¨ klmb A`n`mjI³ AYhm Mediation lawyer Bbpw BWv {]hÀ¯n¡p¶Xv. a[yØ NÀ¨ klmb A`n`mjI\v a[yØm NÀ¨ XÀ¡]cnlmc{]{Inbbn {]tXyIw {]mhnWyw BhiyamWv. ImcWw XÀ¡ ]cnlmc NÀ¨Ifn {]iv\ ]cnlmc Nn´bn I£nIÄ X½n D­ImIp¶ hnet]i X{´§Ä AYhm Bargain strategies c­Iv hn[¯nemWv  sa\bp¶X.v H¶v Integrative Bargain AYhm [Àa\njvSm[njvSnX hnet]iÂ, cI­v Distributive Bargain AYhm hn`mPIm[njvTnX hnet]iÂ. [À½\njvSm[njvSnX hnet]i X{´¯n CcpI£nIfpsSbpw Bhiy§Ä \ndth䯡 hn[¯n CcpI£nIÄ¡pw t\«w am{Xw D­ImIp¶ Hcp ]cnlmc amÀ¤w BWv Dcp¯ncnbp¶Xv.  ChnsS I£nIÄ R§fpsS XÀ¡ kw_Ôamb AdnhpIÄ At\ym\yw ]¦n«pw Bhiy¯nsâ coXn A\pkcn¨v \ne]mSv amtä­I kµÀ`¯n \ne]mSv amäm³ X¿mdmhpIbpw sN¿p¶p.

F¶m hn`mPIm[njvTnX hnet]i X{´¯nÂ, Hcp \nÝnX Afhn Dff \nhy¯n, Hcp I£n¡v em`amIp¶hn[¯nepw, aäpI£n¡v, \jvSw kw`hn¡p¶ hn[¯nepw hn`P\w sN¿p¶ coXnbnepff Cu hn`mK¡mÀ XÀ¡¯n\v A[njvSnXamb hkvXpXIsf Ipdª Afhn am{Xw ssIamdp¶tXmsSm¸w Xs¶ Ipd¨v hn«p hogvN am{Xw sN¿p¶p.

I£nIÄ X§fpsS hnet]i X{´¯n\mbn Bdv hn[¯nepff hnet]i ssienIfmWv Ahew`n¨v ImWp¶Xv. CXn BZys¯ hn`mK¯nÂs]Sp¶ kacks¸S ssien¡À AYhm Accommodative FÃmbvt¸mgpw, \nsâ hgnsb F¶ \ne]mSv kzoIcn¨v X§Ä¡v \jvShpw aäpI£nIÄ¡v em`hpw D­ImIpw hn[¯nemhpw H¯v XoÀ¸n F¯ntNcp¶Xv. c­Imas¯ hn`mK¯nÂs]Sp¶ klIcW ssien¡mÀ AYhm co-operative or collaborative, \½psS hgnsb F¶ coXn kzoIcn¨v Ccph`mK¯n\pw t\«ap­Im¡p¶ hn[¯nepff H¯v XnÀ¸n Bbncn¡pw F¯n tNcp¶Xv. aq¶mas¯ hn`mK¡mcmb aÂkc kzcq] ssien¡mÀ AYhm competitives Fsâ hgnsb F¶ coXn kzoIcn¨v X§Ä¡v t\«hpw FXnÀI£nIÄ¡v \jvShpw D­ImIp¶ hn[¯nepff Hcp H¯pXoÀ¸nembncn¡pw F¯n tNcp¶Xv. \memas¯ hn`mK¡mcmb A\pcRvP\ ssien¡mÀ AYhm compromise persons GXp hgnbpw F¶ coXn kzoIcn¨v, CcpI£nIÄ¡pw \jvSw kw`hn¨v Bbmepw Hcp H¯p XoÀ¸n F¯n tNcp¶p. A©mas¯ hn`mK¯nepffhcmWv XnckvImc ssien¡mÀ   AYhm avoidance. ChÀ  Hcp  hgnbpw kzoIcn¡m¯hcpw Hcn¡epw Hcp H¯p XoÀ¸nse¯m³ klIcWw ImWn¡m¯hcpw BIp¶p. Bdmas¯ hn`mK¡mÀ Hgnªpamd ssien kzoIcn¡p¶hcmWv. XnckvImc ssien¡mcpw aÂkckzcq] ssien¡mcpw Chsc Wriggle outers F¶v ]dbp¶p.  ChÀ a[yØ NÀ¨bn DS\ofw ]s¦Sp¡pw F¶m XÀ¡ ]cnlmc Nn´bpsS Ahkm\ L«¯nÂ, Htcmtcm ]pXnb ]pXnb ImcW§Ä I­Ip ]nSn¨v Hgnªv amdnsIm­Incn¡pItbm settlement agreement H¸nSm³ htcI kabw H¸nSm³ hcmXncn¡pItbm sN¿p¶p. XnckvImc ssien¡mcpw aÂkckzcq] ssien¡mcpw Hgnªpamd ssien¡mcpw hyàn_Ôw ]p\Øm]\¯n bmsXmcp hnebpw sImSp¡m¯hcmbncn¡pw F¶m aäv aq¶v hn`mK¡mcpw hyàn_Ôw ]p\:Øm]n¨v sIm­Imbncn¡pw AhÀ XÀ¡]cnlmc DS¼Snbn H¸v hbv¡p¶Xv.

a[yØ NÀ¨bnse Cu hnet]i X{´hpw hnet]i ssienbpw, a\knem¡n thWw a[yس Xsâ ]mSh§Ä {]tbmKn¡phm³. k¼¯v XÀ¡]cnlmc¯nembmepw km¼¯nI CS]mSv XÀ¡ ]cnlmc¯nembpw NÀ¨kvXw`\w ]et¸mgpw D­ImIp¶pIv. BbXv a[yØsâ Ignthm, AXn ]s¦Sp¡p¶ A`n`mjIcpsS AIagnª klmb klIcW§ÄsIm­tIm am{Xta AXnPnhn¡m³ km[n¡pIbpffp. {]tXyIn¨pw a[yØNÀ¨bn lmPcm¡p¶ A`n`mjIÀ tImSXn XÀ¡]cnlmc coXnbn Ahew`n¡p¶ ssien Xs¶bmWv a[yØ NÀ¨ ]cnlmc¯nepw A\phÀ¯n¡p¶sX¦nÂ, XnÀ¨bmbpw a[yØ NÀ¨ 100% ]cmPbambncn¡pw, AtX kabw a[yØ NÀ¨coXn¡v, tbmKycpw, AXv A\phÀ¯n¡p¶hcpw BWv CcpI£nIfpsSbpw A`n`mjIÀ F¦nÂ, XÀ¡anÃ, XÀ¡]cnlmc NÀ¨ hnPb¯nte Iemin¡q.

a[yØ NÀ¨ ]cnlmc {]{Iobbn a[yØsâ XÀ¡]cnlmc kao]\hpw, ssienbpw Adjudication AYh \ymbnhnNmcW XÀ¡ ]cnlmc {]{IobbpsSbpw, a[yØ NÀ¨ XÀ¡ ]cnlmc {]{IobbptSbpw {]hÀ¯\ ssienbpw, e£yhpw c­Ipw, c­Ip hn[¯nemWv.

\ymbhnNmcWbn tImSXnap³Ime kw`h§Ä¡v {]m[m\yw sImSp¡pt¼mÄ a[yØ NÀ¨bn `mhn Imcy§Ä¡mWv {]mapJyw I¸n¡p¶Xv. tImSXnIÄ hkvXpXIfn {i² tI{µoIcn¡pt¼mÄ, a[yس hyàn_ԧġv Du¶Â sImSp¯mbncn¡pw ]cnlmcw ImWm³ {ian¡p¶Xv. tImSXn hn[nbneqsS sXäpw, icnbpw, D¯chmZnXzhpw Øm]n¡m³ th­Ip¶ At\zjWw \S¯pt¼mÄ a[yØ NÀ¨bn hyàn_Ôw ]p\Øm]n¡m³ th­Ip¶ {ia§Ä \S¯p¶p. hn[n{]Øm\w KpWtZmj {]Ømh\bn Iemin¡pt¼mÄ a[yØNÀ¨ s]mcp¯ s]StemSpIqSnb Hcp XÀ¡]cnlmc¯n F¯ntNcp¶p. tImSXnhn[nIÄ IÂ]\bpsS cq]w hcn¡pt¼mÄ a[yØ XÀ¡]cnlmcw, \S]Sn{Ia§fneqsS Dcp¯ncnª,v D`bk½Xamb Hcp XoÀ¸n F¯n tNcp¶p. \ymb hnNmcWbn A`n`mjI\pÅ taÂtImbva a[yØ NÀ¨bn I£nIfpsS AhImiamWv.

    a[yØ NÀ¨ XÀ¡ ]cnlmcNÀ¨ thfbnÂ, ap³]n\mse \ne\n¶ncp¶Xpw, a[yس II­p]nSn¨p F¶v AhImis¸Sp¶ Hcp XÀ¡mhØbnte¡v Asæn XÀ¡¯nsâ Npäp]mSpIfnte¡v Hcp a[yس cwK{]thiw sN¿pt¼mÄ BWv a[yØ NÀ¨bv¡v XpS¡ambn F¶v ]dbp¶Xv. Hcp XÀ¡w Asæn Hcp {]tXyI AhØ amän In«phm³ I£nIÄ kzta[b ssIsIm­Ip ]ehn[ hnet]i {ia§fpw hyÀ²amIpt¼mÄ, AhÀ X§fpsS XÀ¡ ]cnlmc kvXw`\mhØbn F¯p¶p. 

km[mcWbmbn Adntªm AdnbmsXtbm Hcp \nÝnX \nhr¯nbn \n¶pw hn`P\mSnØm\¯n F\n¡v F´v e`n¡pw, \n\¡v F´v \jvSamIpw F¶pw, [Àa\njvS[njvSnX hn`P\¯n Ccp I£nIÄ¡pw ]ckv]c t\«¯n\pÅ kmlNcyw \ne\n¡p¶p­I­v F¶XmIpw I£nIfpsS Nn´IÄ.

Hcp a[yس, a[yØNÀ¨ {IaoIcW coXnsb, km[mcWbmbn tPmUnIfmbmbn BWv  hnhcn¡p¶Xv.  AXmbXv {]iv\ ]cnlmc¯ns\Xncmbn  AhØm ]cnhÀ¯\w F¶pw Asæn hyànXz¯n\v FXncmbn hyàn_ÔXzw F¶pw, a[yØ NÀ¨ {]{Inbsb hn\ymkcoXnItfbpw, ssienItfbpw tPmUnIco¡p¶Xv KpWtZmj aqey\nÀWbSnØm\¯n\v FXncmbn XÀ¡]cnlmc Ifsamcp¡Â F¶pw, AhImimSnØm\¯n\v FXncmbn XmÂ]cymSnØm\w F¶pw, ¢n]vXs¸Sp¯nb {]iv\ \nÀhN\¯ns\Xncmbn  kv]jvSamb {]iv\\nÀhN\w F¶pw BWv.

a[yس Xsâ {]mtbmKnI ]cnioe\¯ntâbpw {]hÀ¯n]cnNb¯ntâbpw ASnØm\¯nepw kzkn²hpw, BÀÖnXhpw Bb IgnhpIfpsS ASnØm\¯nepw, Xsâ imkv{XobambtXm, XXzimkv{X]cambtXm Bb hnizmk¯nsâbpw ASnØm\¯nepambncn¡pw a[yØ NÀ¨bn Xsâ CSs]SepIfpw, CSs]SmXncn¡epItfbpw Xocpam\n¡p¶Xv.

km[mcWbmbn aq¶p hn[¯nepÅ a[yØ NÀ¨ {IaoIW (Orientation) BWv, a[yØÀ kmlNcy§Ä A\pkcn¨v A\phÀ¯n¡p¶Xv.

    1. XÀ¡s¯ ¢n]vXs¸Sp¯n, hyàambn ImWp¶, \nba]camb AhImi§sf {IaoIcn¨pÅ kao]\w ssIs¡mÅp¶ a[yØÀ, I£nIsf AhÀ¡pÅ \nba]camb AhImi§sfIpdn¨v Hcp ImgvN]mSp­ImIphm³ th­I klmbw sN¿pIhgn, I£nIsf X§fpsS tIÊnsâ \nba]ÝmXe¯nepÅ _et¯bpw,  e£yt¯bpw Ipdn¨v Aht_m[w D­fhm¡pIbpw sN¿p¶p. Nne kµÀ`§fn Nne a[yØÀ I£nIfpsS tIÊnsâ KpWtZmj \nÀWbw sNbvXv, D]tZi¯nsâ kao]\w kzoIcn¨v, Hcp ]s£ tIknep­ImIm³ t]mIp¶ hn[nsb Ipdn¨vt]mepw {]hNn¨v I£nIÄ X½n Hcp H¯pXoÀ]nse¯p¶Xn\pth­In {ian¡p¶p.

    2. Nnea[yØÀ H¯pXoÀ¸v F¶ e£y¯n\v Du¶Â sImSp¡p¶Xn\p ]Icw, ]cnhÀ¯\ {]Xyimkv{X N«IqSnsâ klmbt¯msS, I£nIfpsS imàoIcW¯n\pw, AwKoImc§Ä¡pw, DÅ Ahkc§Ä¡mbn D]tbmKn¡p¶p.

   3. [Àa\njvTm[njvSnX a[yØ NÀ¨ XÀ¡ ]cnlmc {]{Iobbn a[yس I£nIsf Xsâ e£y {]m]vXn¡mbn kv]jvSamb XÀ¡ \nÀhN\¯neqsSbpw, XÀ¡ ]cnlmc e£yw IIpsIm­IpÅ Hcp kao]\¯neqtSbpw, I£nIÄ¡v At\ym\yw em`w D­Im¡p¶ hn[¯nepÅ Hcp XÀ¡ ]cnlmckmlNcyw Hcp¡nsImSp¡p¶p.  Cu coXn Ahew`n¡p¶ a[yس km[mcWambn a[yØNÀ¨ Ifsamcp¡Â ssien Ahew_n¨v, I£nIfpsS \nehnepÅ XmXv]cy§fpw Bhiy§fpw a\Ênem¡n AXn {i² tI{µoIcn¨v, Ccp I£nIÄ¡pw kwXr]vXn D­Im¡p¶ hn[¯nepÅ Hcp XÀ¡ ]cnlmc¯n I£nIsf F¯n¡p¶p. 

            I£n XmÂ]cym[njvSnX XÀ¡ ]cnlmcXXzw Ahew`n¨v a[yØ NÀ¨ sN¿p¶ a[yس, I£nIsf AhcpsS \nehnepÅ AhØbpsS ImgvN]mSn \n¶pw, AhcpsS ZrjvSn amän, AhcpsS Bhiy§fn tI{µoIcn¡phm³ t{]mÂkmln¸n¡p¶p. AXn\pth­In AhcpsS Hfn¨p hbv¡s¸«ncp¶ XmÂ]cy§tfbpw, Bhiy§tfbpw

]pds¯Sp¯v Im«ns¡mSp¯v, I£nIfpsS XmÂ]cy¯nsâ ASnØm\w t\m¡n  [Àa\njvTm[njvTnX XmÂ]cymSnØm\ hnet]i ssienbneqsS AhchcpsS \nhr¯nbpsS aqey hym]vXn hÀ²n¸n¡m³ Ignbpw F¶pw AXphgn AhcpsS ]caamb e£y{]m]vXnbn AhÀ¡v F¯m³ Ignbpw F¶pw a\knem¡n sImSp¡p¶p.

            “I£nIsf X§fpsS hn`P\m[njvTm\ \oXn t_m[¯nsâ temI¯p\n¶pw, AhcpsS aÕckzcq] X{´w amäm³ Blzm\w \ÂIn AhcpsS Ct¸mgs¯ ØnXnbn \n¶pw hn`n¶ambn X§fpsS bYmÀ° Bhiy§fpw XmÂ]cy§fpw a\Ênem¡n sImSp¡pIbpw F¶XmWv I£nXmÂ]cymSnØm\ þ I£n klIcW ssienbneqsS ]cnlmc¯n\v {ian¡p¶ a[yØsâ Gähpw henb shÃphnfn."

            ]e a[yسamcpw, a[yØ NÀ¨]cnlmc thfbn H¶n IqSpX a[yØ NÀ¨ XÀ¡]cnlmc kao]\§Ä FSp¡p¶pI­v. km[mcWbmbn a[yØ NÀ¨Isf Ifsamcp¡Â AYhm {]Xy£s]Sp¯Â, kao]\¯nÂ, I£n XmÂ]cymSnØm\ XÀ¡]cnlmc kao]\ ssienbn \n¶pw XpS§n KpWtZmjaqey\nÀ®bw AYhm hgn¡m«Â kao]\w Ahew`n¨, AhImimSnØm\ XÀ¡]cnlmc amXrIhsc kzoIcn¡p¶p.

*(LL.M in Adr+., From Hamline University, MN - U.S.A.),acredited to be Meditor of Supreme Court of Minnesota at U.S.A., Acredited Mediator and empaneled Arbitrator of High Court of Kerala,Erstwhile Research Intern of Hamline University Mediation Clinic, at Minneapolis in U.S.A.).

SEVEN LAMPS OF ADVOCACY

"The profession of law is a great calling, and to discharge the responsibility the member of this profession must make him self equal to the task. Law is a great profession of talents, and talent is bound to make headway through any vicissitudes of circumstances, and through any reversals of fortune. The profession calls for great knowledge, high mental capacity and wide culture. Forsyth says that 'it is well to erect a lofty standard' in view of 'the momentous questions which are confided to his skill, involving all that is dear to man and remembering that 'when life, or property, is at stake, or the poisoned shaft of calumny is quivering in the heart, his office is to stand forth, and shield the person. or vindicate the character of those who are assailed, and who fly to him for protection or redress'. He adds that 'without an adequate conception of the requirements of his office, it is utterly impossible that he can perform the duties, which by its very nature, he stands pledged to society to fulfill. How can he hope to thread the mazes of intricate argument, if his mind is not disciplined by the habit of accurate reasoning; or, to advise safely in some perilous emergency, if he has not thoroughly digested and made himself master of legal principles?'

Judge Abbot Parry mentions Honesty, Courage, Industry, Wit, Eloquence, Judgment and Fellowship as the seven lamps of advocacy.

Dealing with Honesty, he says that 'the best advocates of all generations have been devotees of honesty', and cites the case of Abraham Lincoln 'who founded his fame and success on what some called' perverse honesty.

Referring to Courage, he says: 'Advocacy is a form of combat, where courage in danger is half the battle. Courage is as good a weapon in the forum as in the camp.''Advocacy', he says, 'is indeed a life of Industry, and an advocate must study his brief in the same way that an actor studies his part. Success in advocacy is not arrived at by intuition.''The lamp of Witis needed to lighten the darkness of advocacy. Often the wit of an advocate will turn a Judge from an unwise course, where Judgment or rhetoric would certainly fail'.

According to him, 'eloquence of Manner is real eloquence', and there is a 'physical as well as psychological side to advocacy'.

As regards Judgment, he refers to it essentially as an intellectual capacity,’ the inspiration' which enables a man to translate good sense into right action.

Speaking of Fellowship, he says that it is’ exactly like a great public School, the boys of which have grown older and have exchanged boyish for manly objects. There is just the same rough familiarity, the general ardour of character, the same kind of unwritten code of morals and manners, the same kind of public opinion expressed in exactly the same blunt, unmistakable manner'. He concludes that by keeping the lamp of fellowship burning, we encourage each other to walk in the light of the seven lamps of advocacy".

A NEW PHASE IN INTERNATIONAL LAW

(T. G. John, Advocate, Trichur)

With Russian Sputniks and American Explorers beeping and orbiting round our good earth, this geophysical year has heralded a new phase in international law. While the scientist is busy gathering information about cosmic rays, magnetic fields, atmospheric pressure etc., at the same place at the same time, so that they can establish the relationship among all these phenomena at any given point in space, President Charles S Rhyne of the American Bar Association and several statesmen like Sir Leslie Munro of New Zealand have already proclaimed the need to adapt international law to this space-age. According to them, it is not too early for jurists to ponder some rules of law for this vast new arena of human activity.

Space is a new frontier for mankind. Promethean inspirit, the conquest of space is first of all an adventure of the human will and brain. For the air age lawyers worked out a doctrine that treats the earth's atmosphere like national coastal waters But where the atmosphere becomes too thin to support aircraft, there or thereabouts begins space. And there must begin space law -- or else chaos in the firmament.

The problem is not without precedents. As regards the law of the seas, up to the first half of the middle ages navigation on the open sea was free. Ulpian declared the sea to be open by nature. Calsus declared both the sea and air as being common to all mankind. ''I am the master of the earth but the law is the mistress of the sea" said Emperor Antonius. The German emperors who were considered successors to the Roman emperors assumed title of the 'King of the Ocean'. The latter half of the middle ages marks the beginning of claims being made over parts of the open sea At the time of the birth of international law several States were really asserting claims over certain parts of the open sea. Spain claimed sovereignty over the Pacific and the Gulf of Mexico while Portugal made claims over the Atlantic, South of Morocco and the Indian Ocean. Great Britain claimed sovereignty over the Narrow Seas, the North Sea and the Atlantic from the North Cape to Cape Finisterre. These claims were asserted for several hundreds of years. With the growth of expeditions for discovery of unknown lands this idea of sovereignty over the open seas by the several States had to be gradually abandoned. When the Spanish ambassador Mendoza objected to the expedition of Sir Francis Drake, Elizabeth I stated that vessels of all nations could navigate on the Pacific since the use of the sea and air is common to all. Twenty-nine years after Elizabeth I, in 1609, Grotius, the great, authority on international law in Mare Liberum declared that the sea was free by nature because it is incapable of occupation. The writers of the eighteenth century championed the cause of the freedom of the open sea dividing the sea into maritime belt and open sea. Great Britain gradually began giving up her claims over parts of the open sea and soon emerged as a great upholder of the principle of the freedom of the open sea. This had to be done by Great Britain because she had the biggest navy. "The last ditch of the battle for the freedom of the open sea was fought and won in the award that was given against the claim of the United States over part of the open sea in the Behring Sea Arbitration Case in 1893" (Arunachalam—Modern International Law). The blue water is what international lawyers call res communis-common property. In Geneva this year lawyers from eighty-seven nations are codifying and updating the law" of the sea., cornerstone of civilization.

As regards aerial navigation, as soon as hostilities of 1919 were over and normally was resumed, no time was lost by the interested nations in meeting to­gether in a convention at Paris in October 1919, for the purpose of formulating some definite rules for the future of aerial navigation. Twenty-nine States, big and small of both the hemispheres solemnly signed the conclusions that were made at that historic meeting. The main conclusion arrived at was that a State had complete sovereignty in its superincumbent air space to an unlimited space subject to the right of innocent passage for foreign non-military air-craft akin to the right of innocent passage of merchant ships through territorial waters of other countries. Closely following upon the heels of the Paris Convention came the convention at Madrid in 1926 ratifying the conclusions of the Paris convention and in the other hemisphere, the Pan-American convention at Havana in 1928. "Air navigation is now regulated by (1) The convention for Regulation of Aerial navigation, 1919, with its amending protocols, (2) Bilateral and Multilateral Conventions supplementing the convention oi 1919. (3)Customary international Law. These documents recognize that every State has complete and exclusive sovereignty in the air-space above its territory and territorial waters. Freedom of innocent passage for private air-craft of other parties who comply with the rules is guaranteed subject to reservations on ground Of military and public safety reasons". The Lucrene European Broadcasting Convention of 1933, accept the principle of exclusive sovereignty in the air space of a State for purposes also of transmission of wireless waves.

When the Russians announced their intention to put up their Sputniks to orbit in space past the territories of many nations, they asked nobody's permission. Neither did the U. S before launching Explorer. Why try to claim Space that never stands still over any country? It is in this spirit that Congressman Kenneth B. Keating of New York rightly urges the "U. S. to "take the lead in formalizing international recognition of freedom of the outer space", instead of dumping the problem on the U. N. to become just another cold war wrangle.

Some lawyers propose an international authority to own all space ships or at least to license them and ensure world wide access to the information gleaned by them. Eisenhower's proposal to bar weapons from space is also a good subject for international agreement, And when the first space ship lands on the moon should the crew plant a national flag? If so, should its claim be recognized by other nations? Surely it would be better if the home port on the ship's stern read simply and grandly "Earth", rather than representing one of this puny globe's puny parishes.