“The Tales of Three Cities”

(By.K.V.Narayana Menon, Advocate, Calicut)

It was midsummer in Madras. Dreaming when dawn’s loose jacket orange for the day was in the sky I woke up when “The Hindu” was dropped in my room. There was none to wake me up. Glancing through the columns of the “The Hindu” I learnt that the Madras Legislative Assembly was in session that day. It was my dream to visit a Legislative Assembly, the law making house. The legislature often does serious business in the fresh hours of the day and I was there by 8 a.m., close to Mount Road, the unmistakable land mark of Madras, as it then was.

As I entered the legislative assembly with mounting excitement I saw a young member in serene white, full sleeved shirt with beautiful cufflinks, addressing the speaker in brief British English. His bright eyes were visible through the black rimmed glasses. He had a light fade crop on the sides and was dressed impeccably. All the members present and visitors in the assembly were closely listening to the talk of the member. The speaker was not restraining him though the member was stretching beyond the assigned time.

The member I guessed, was highlighting the grievances and demands of the Malabar District, the jewel of the west coast of the Madras province. In terms of economic development, the Malabar District then was several years behind the rest of the province. The Honourable Chief Minister was seen standing up, repeatedly assuring the house that he will certainly look into the matter. The submission of the member was so effective and authoritative. It was not argumentative. He was literally carrying the day. Like several others, I had also enjoyed his “British Breakfast”.

Tremendous applause followed when the member completed and sat down. When he sat down I saw even other members in the assembly talking about him. His oratory had left an indelible impact on the august assembly. The applause lasted for a long time. The ovation was actually an approval of the Madras Legislative Assembly of the remarkable performance of the member. It was not only the beauty of the language but also the quality of the parliamentary practice, probably recommended by Erskine May that attracted the ovation. The member may have mastered May’s Parliamentary Practice (Originally published in 1844) before entering the assembly hall. And that was, V.R.Krishna Iyer, from the Malabar District of the Madras Province.

The Government Law College Emakulam must have witnessed many debates, discussions and discourses in its splendid history. But the debate on whether the Central Intervention under Article 356 of the Constitution in Kerala was justifiable or not, is unparalleled and shines almost alone a star.

The stage was set for a verbal duel between Panampilly Govinda Menon and V.R.Krishna Iyer. Never, never in the history of the Law College did so many students attend a debate with so-much patience for so long a time. Two of the most renowned speakers of Kerala on either side, a highly inflammable subject which required expertise in constitutional jurisprudence, coupled with current politics and above all at a venue close to the Queen of the Arabian sea-what else do you need?.

Long before the speakers came, the first year law students with boyish delight had fully occupied the front rows of the B.L. lecture hall. Once a Legislative Assembly of the Cochin State it was a comfortable hall with fine seating arrangements.

The patience exhibited by the students was remarkable. That quality of patience and discipline I later observed only among the visitors with children, from all over the world, standing in line for hours, to watch the ‘Wizarding world of Harry Potter’, in Universal’s Islands of Adventure at Orlando, in the United States of America.

Our beloved Principal was very happy, since the boys were behaving well. P.Govinda Menon started the debate, supporting of course, the dismissal of the elected government. He appeared relaxed like the captain of a cricket team, who had just won the toss. He was firm on his grounds and absolutely confident of what he was advocating.

V.R.Krishna Iyer, on the other hand, was vehement at the outset opposing the validity and propriety of the action taken. The speeches for about two hours kept the audience spell bound. Both speakers showed their phenomenal knowledge in constitutional law. They argued with meticulous thoroughness of facts as well. Occasional blending, of constitutional law with a bit of politics made the debate lively, sparkling and a truly unforgettable event. It was akin to diamond cutting diamond.

V.R.Krishna Iyer was one of the most sought-after speakers of the Calicut Bar Association, because he was a legal luminary. The centenary celebration committee of the Calicut Bar Association honoured Krishna Iyer by offering him the first law lecture of the law lecture series initiated by the committee. He gladly accepted it and delivered it in 1986. It was a master-piece, no doubt.

The Bhopal Gas Tragedy was the topic he had dealt with once when addressing the Bar Association. In his brilliant talk, he uncovered the intensity of the tragedy in his inimitable style. His account of the tragedy was as surprising as it was shocking. The tragedy had wounded his feelings so deeply. It is impossible to recapture his words, phrases and expressions when dealing with any topic effectively. Age had slightly withered him when he addressed the Calicut Bar Association in 2012. But his memory had not faded and it was sharp even at 94 and it was his razor sharp mind and crystal clear memory of a youngster that made me think of him reverentially.

The inaugural lecture of the V.K.Krishna Menon Lectures was delivered by V.R.Krishna Iyer way back in 1978 at the Senate Hall, Trivandrum. V.K.Krishna Menon was yet another powerful speaker from the legal fraternity. There are some similarities one could notice in Padmavibhushan V.K.Krishna Menon former Defence Minister of India and Padmavibhushan V.R.Krishna Iyer not only in names initials, career and outlook but also in the style of oratory.

The outright frankness in both speakers is unique. This city can be proud of the breakthroughs of the two precious speakers in the art of oratory. My humble tribute to all the illustrious lawyers.

The three cities viz Chennai, Cochin and Calicut have the same story to tell that, V.R.Krishna Iyer was one of their favourite speakers. Undoubtedly he was also the favourite of the legislature, the executive and the judiciary. But, Padmavibhushan Vaidyanathapuram Rama Iyer, Krishna Iyer, was my absolute favourite as a powerful speaker.

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No Brick Bats Even If No Boquets

(By K.Ramakumar, Sr.Advocate, High Court of Kerala)

Acceptance of judgeship by successful and eminent legal practitioners was considered a call of duty in the past. Many leading practitioners had forsaken their lucrative practice for service in the judiciary, which then meant service to the public.  At that time there was no canvassing and the choice invariably fell only on the meritorious.

Times have changed.  A system not even contemplated under the Constitution of India has emerged, which however, has received flak from all concerned. Sri Justice Chelameswar had made the following observations about the system calling itself Collegium.

“The process by which a judge is appointed to a superior court is one of the best kept secrets in the country. The very secrecy of the process leads to an inadequate input to information as to the abilities and suitability of a possible candidate for appointment as a judge.   A chance remark, a rumour or even third-hand information may be sufficient to damn a judge’s prospects.  Contrariwise a personal friendship or unspoken obligation may colour a recommendation. Consensus within the collegium is sometimes resolved through a trade-off resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system.  Besides, institutional independence has also been compromised by growing sycophancy and ‘lobbying’ within the system.”

Sri Justice Kurian Joseph adds:

“The trust deficit has affected the credibility of the Collegium system, as sometimes observed by the civic society.  Quite often, very serious allegations and many a time not unfounded too, have been raised that its approach has been highly subjective.  Deserving persons have been ignored wholly for subjective reasons, social and other national realities were overlooked, certain appointments were purposely delayed so as either to benefit vested choices or to deny such benefits to the less patronised, selection of patronised or favoured persons were made in blatant violation of the guidelines resulting in unmerited, if not, bad appointments, the dictatorial attitude of the collegium seriously affecting the self-respect and dignity, if not, independence of Judges, the court, particularly the Supreme Court, often being styled as the Court of the collegium, the looking forward syndrome affecting impartial assessment, etc., have been some of the other allegations in the air for quite some time. These allegations certainly call for a deep introspection as to whether the institutional trusteeship has kept up the expectations of the framers of the Constitution… To me, it is a curable situation yet.”

Recently Sri Justice Chandrachud in Central Public Information Officer v. Subash Chandra Agarwalobserved as follows:

“The Collegium system has come under immense criticism for its lack of transparency.  As early as in S.P.Gupta, this Court acknowledged that disclosure would lead to bona fide consideration and deliberation and proper application of mind on the part of the judges.”

On transparency in judicial appointment Sri Justice Chandrachud quoted Sri Lorne Sossin in the following manner:-

“What matters most in a democracy, I would suggest, is not the precise criteria for merit but the transparency of the criteria, and the authenticity of the reasons for choosing one individual over another. Merit, in other words, is as much about process as substance.”

Accountability therefore in judicial appointments has been rightly emphasized as the need of the hour.  What is now happening? Members of a profession, which is the only one finding a place of honour in the Constitution of India, opt for the harsh life of a Judge. They however, are not only not recognised with honour but rebuffed with dishonour.   The new method of working of the Collegium has led to humiliating some of the lawyers recommended for appointment by declaring them unfit and ineligible after making them wait for a long period.  Even the integrity of some of them, has been questioned by superior bodies situate in New Delhi. Frustrated some of them have withdrawn their consent.  For instance Sri Shriram Panchu, an eminent lawyer from Madras High Court was understood to be one among them.  He was one of the persons chosen by the Supreme Court as a mediator in the Ayodhya Case.  In similar many prominent Lawyers in Bombay, Patna and other High Courts have withdrawn their consent.  A lady Lawyer of eminence has also done so.  The fact that it has not happened in Kerala or not likely to happen due to institutional deference, is not a reason to demoralise or discomfit dignified and decent practitioners, whose integrity is unquestionable.

Plum positions of power and prestige cannot be permitted to be cornered by the Corporates and the clout commanding upper crest of the society alone.  They also belong to the hitherto un-equals to enable them to limp back to equality. Cry for social justice consistent with the magnificent preamble of our Constitution cannot be criticised as communal.

What do all these indicate?  The system needs thorough revamping.  It should not result in dispiriting legal practitioners who have opted for judgeship, which is a question of personal preference.  Even if they are not inducted, at least the indignity meted out to them along with the disgusting uncertainty may be avoided.

Let us remind ourselves of the wise words of Dr.B.R. Ambedkar:-

“however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot.”

Not A Catch-All Jurisdiction

(By K.Ramakumar, Sr. Advocate, High Court of Kerala)

“If I was asked to name any particular Article in the Constitution as most important . . . . . . .  an Article without which the Constitution would be nullity – I could not refer, to any other Article except this one.  It is the very soul of the Constitution and the very heart of it” – Dr. Ambedkar.

Article 32 of the Constitution is itself a fundamental right granting to all citizens the right to move the Supreme Court for the enforcement of the rights conferred by Part III of the Constitution of India.  The Article has been interpreted by the Apex Court clearly laying down that only violation of fundamental rights can be enforced under Article 32.  Issues not involving fundamental right, the Supreme Court said “cannot be determined by it”. (See Indian Express Newspapers v. Union of India (1985 KLT OnLine 1205 (SC) = (1986) 1 SCC 633).

However what is happening now?  For every grievance whether political, personal or both the Supreme Court is directly approached contrary to its own pronouncement earlier that unless initially the High Courts are moved the Supreme Court cannot be burdened with petitions under Article 32.  This also because the power of the High Courts under Article 226 is wider than that of the Supreme Court under Article 32. This is what the Supreme Court said in Kumar v. Municipal Corporation of Delhi (1988 (1) KLT 124 (SC) = (1987) 4 SCC 609.

“The scope of the powers of the High Courts under Article 226 of the Constitution is wider than the scope of the powers of this Court under Article 32 of the Constitution.  The relief prayed for in the petition is one which may be granted by the High Court and any of the parties who is dissatisfied with the judgment of the High Court can approach this Court by way of an appeal. The fact that some case involving the very same point of law is pending in this Court is no ground to entertain a petition directly by-passing the High Court.  If the parties get relief at the High Court, they need not come here and to that extent the burden on this court is reduced.”

In fact the Supreme Court declared the contours of its own jurisdiction in Kanubhai Brahmbhatt v. State of Gujarat (1987 (1) KLT OnLine 1020 (SC) =AIR 1987 SC 1159) cautioning
the entire country in the following words.

“If this Court takes upon itself to do everything which even the High Courts can do, this Court will not be able to do what this Court alone can do under Article 136 of the Constitution, and other provisions conferring exclusive jurisdiction of this Court.  There is no reason to assume that the concerned High Court will not do justice.  Or that this Court alone can do justice. If this Court entertains Writ Petition at the instance of parties who approach this Court directly instead of approaching the concerned High Court in the first instance, tens of thousands of Writ Petitions would in course of time be instituted in this Court directly.  The inevitable result will be that the arrears pertaining to matters in respect of which this Court exercises exclusive jurisdiction under the Constitution will assume more alarming proportions. As it is, more than ten years old Civil Appeals and Criminal Appeals are sobbing for attention.  It will occasion great misery and immense hardship to tens of thousands of litigants if the seriousness of this aspect is not sufficiently realized. And this is no imaginary phobia.  A dismissed government servant has to wait for nearly ten years forredress in this Court.  Kashinath Dikshita v. Union of India (1986) 3 SCC 229: (AIR 1986 SC 2118).
A litigant whose appeal has been dismissed by wrongly refusing to condone delay has to wait for 14 years before his wrong is righted by this Court.Shankarrao v. Chandrasenkunwar, (Civil Appeal No. 1335(N) of 1973 decided on January 29, 1987. The time for imposing self-discipline has already come, even if it involves shedding of some amount of institutional ego or raising of some eyebrows.  Again, it is as important to do justice at this level as to inspire confidence in the litigants that justice will be meted out to them at the High Court level and other levels. Faith must be inspired in the hierarchy of Courts and the institution as a whole.  Not only in this Court alone. And this objective can be achieved only by this Court showing trust in the High Court by directing the litigants to approach the High Court in the first instances. Besides, as a matter of fact, if matters like the present one are instituted  in the High Court, there is likelihood of the same being disposed of much more quickly, and equally effectively, on account of the decentralisation of the process of administering justice.”

These principles hold good even now and to my humble knowledge have not been departed from in any subsequent decisions.  Yet the Supreme Court is approached not only by influential political parties but affluent businessmen as Sri Ratan Tata did in the Neera Radia Tape case who obtained a stay of disclosure of its contents by purportedly moving under Article 32 of the Constitution.  Which one of his fundamental rights is infringed by disclosure which should have shook the entire corporate world if the contents are true? The business tycoon could have easily moved one of the finest High Courts in India within walking distance of his cosy Chairman’s Cabin in the Bombay house.  By resort to Article 32 the right to information, which is now considered valuable and great to the people of India was effectively shut out by a very prominent businessman, unfortunately with the assistance of the highest court of the country.   So are the instances of moving immediately the Supreme Court in relation to proving majority in Legislative Assemblies, etc, none of which to the best of my limited legal knowledge involves any violation of fundamental rights. The right to vote, the right to stand for elections, the right to get elected are only statutory rights as declared explicitly by the Supreme Court in number of cases.  No elected member can be heard to say that the assembly shall meet at a particular date or the Speaker shall fix a date for trust vote in a particular manner that secret ballot should be evolved etc, particularly by moving the Supreme Court under Article 32 of the Constitution. Article 32 cannot be invoked to make Articles 105 and 194 dead letters. Still surprisingly none of the parties including the answering respondents, do not appear to have raised seriously any preliminary objection regarding the maintainability of such petitions. It was for the first time that in the Maharashtra case objection was raised that a petition under Article 32 is not maintainable.

Direct approach by litigants who command clout in the corridors of power to the Supreme Court will definitely send a wrong message. What is not available to a common citizen cannot be a bonanza to rich and affluent people who are put up in Five Star Resorts, presumably at the huge expense of big corporates who have stakes in getting an administration of their choice.  This is indeed a blow to the Indian democracy which in spite of debilities suffered on account of the assault by unscrupulous politicians is deep rooted and embedded in our system.

Wily politicians shall not be permitted to misuse the machinery of Courts for their own selfish interests.  No open sesame to Article 32.Please go to the High Court first and then on to the Apex Court.

Lambasting Judges by Name – The Supreme Slur and Its Aftermath

(By Rajit, Advocate,High Court of Kerala)

If arguing a matter in the manner and style of the advocate, warrants proceedings under the Contempt of Courts Act and also a conviction without following due process, then I am sure none of the lawyers can escape the tag of being in contempt. This strikes at the very root of advocacy. Stretching it a bit further, an advocate needs just to draft and file the case and remaining is for the Court to read and decide. I am afraid we are going way beyond the fundamentals. This needs to be checked.

There is a very disturbing trend evident more visibly in the recent times, where dispensation of justice is carried out with a sense of fear. The fear of being named in the Supreme Court. Every order passed is with fear and every order which ought to be passed is refused to be passed for the fear of having your name called out and published in the media.

Is this how the highest Court in this State must function?  Before trying to understand the effect of this syndrome, it is necessary to refer to certain constitutional provisions:-

Article 121 :- No discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided .

Article 124. (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.

(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:

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(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

(5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under
clause (4).

 (6) Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.

The oath in the Third Schedule reads as follows:-

VIIIForm of oath or affirmation to be made by the Judges of a High Court:—“I, A.B., having been appointed Chief Justice (or a Judge) of the High Court at (or of) .........., do swear in the name of God that I will bear true faith and allegiance to the Constitution of India as by law established,²[that I will uphold the sovereignty and integrity of India,] that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my officewithout fear or favour,affection or ill-will and that I will uphold the Constitution and the laws.”                   (emphasis supplied)

Has not the fear syndrome breached the oath undertaken by the Judges of our High Court. It is a common refrain from many of the Judges that, Do you want our names called out by the Supreme Court? That is why this Frankenstein Monster has to be overcome and overcome with might at the earliest. Silence or allowing this to grow will only create a situation where the common man will lose faith in the institution of the High Court and then be left with no other option but to move the Supreme Court in all matters.

The orders of the Supreme Court are not beyond interpretation. It is only by such process, the legal system sustains a healthy growth. The utterances of the Supreme Court, in the heat of a moment, and very unfortunately reported and highlighted by the media must be discarded with the disdain it deserves.

The Constitutional provisions referred to above provide sufficient protection to the Judges of the High Court. Then why the fear? I can understand the fear of moving up the ladder or being denied the legitimate right of ascendancy. But when the right of ascendancy only affects a few, why must there be this general fear, by all? Justice Madan B.Lokur, in a recent article, after his retirement, has called upon the Judges to show some backbone and spine, particularly in dealing with the issue of personal liberty.

The utterances by individuals, who are occupying the exalted position for a temporary period, does not and should not reflect on the institution. A courteous Judge will always command respect and affection of the lawyers, long after his retirement, which is inevitable. A Judge has a retirement age and a lawyer, well he will be there for a considerably long time. A bold and fearless Judge called Hans Raj Khanna is still remembered, whereas the name of the Chief Justice, who superseded him, has to be memorized and is unfortunately known only for having superseded Justice H.R.Khanna. There is a choice to be made and I rest my case.