A NOTE ON KERALA LEGAL AID RULES

 (M. S. Kurien B. A . B. L., Advocate.Ernakulam)

One thing we are sure of. A Communist Government is never guilty of inertia. The heresy consists in the censer being always directed to an over -- Government.

All credit, to whomsoever it is due, for making the idea of Legal Aid to the poor a live issue. But I fear there is a string attached to the scheme proposed by the present regime. The simple smart thing would have been to leave to the client to choose his own advocate and then pay the advocate out of State funds. Under the rules published by the Kerala Government, Counsels are appointed by the Presiding Officers from a panel of names submitted by the Bar Association President.

My point is this. No body shall tamper with private initiative and individual choice. The right to be defended by an advocate of his own choice is no mean right. No solicitude, from whatever quarter it comes, if it swallows up the personal predilection of the citizen, is healthy enough.

I may now mention Art. 22(1) of the Indian Constitution. "No person who is arrested shall be detained in custody without being informed as soon as may be, of the grounds of such arrest, nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice." The right of the client to choose his own advocate is well stressed by no less a body than the sixth Congress of the International Association of Democratic Lawyers. Communist atrocities in Hungary were specially studied by them. The quintessence of all their deliberations is this. ''An accused without means shall be entitled to effective legal aid and representation by a qualified lawyer of his own choice before all the tribunals without exception." And, are not the advocates themselves who are outside the panel, prejudiced in many ways? Let as hear them.

Medical Jurisprudence

(M. Marcus M. L., Advocate, Kottayam)

''Strike not thoughtlessly a nest of wasps

If you strike strike hard......"

Gross on Investigations

The use of scientific knowledge enlisted in legal proceedings is of more frequency and importance in criminal trials. Medical evidence figures a prominent part in them. Evidence of this type is technically called "expertise".

Criminal justice is concerned mainly with the protection of the innocent and punishment of the guilty. The use of Forensic Medicine enables the judge to arrive at an impartial decision in criminal trials. Dr. Taylor defines medical jurisprudence as the application of medical knowledge for the purpose of law. In Hammurabi’s code there was provision made for calling in medical expert to give opinion regarding the cause of death, or serious injury by poisoning or otherwise, so that justice may be rendered between man and man. While appreciating the importance of the subject under consideration we cannot forget the fact there was a sense of animosity between the medical man and lawyers which snapped away the sincerity in reaching the truth. Medical men and the lawyers when tried to test their strength of knowledge this biased view colored their activities in the court. Medical man as opined by best "spoke from his castle" and the lawyer derided him. We have to see the consequences of such attitude. The lawyer and the medical expert might be drawn in the spirit of acrimonious dispute while the accused at the dock, pale and panting might feel that his cause is rather derlicted. The judge might feel annoyed or at least diverted from the real flow of things. This circumstance is the direct result of lack of information touching medical jurisprudence by lawyers. The different nature and feature of injuries have got certain nominated names in the field of Forensic medicine such as incised, lacerated, gunshot wounds and contusions. The cause for each of these injuries are normally different though in some cases one injury may simulate another which is a whirlpool of controversy between the medical men and the lawyers. For example a blow with a blunt weapon on the victim usually does not cause an incised wound but when such a blow is inflicted on the victim where the skin lies close to the bone it may produce injuries resembling incised wounds which feature might give the police the opportunity to plant a knife in evidence and cause perverted judgment to be made resulting in the conviction of the accused for graver a offence committed with sharp weapon. Human body subjected to external force resulting in injuries might show a peculiar coloration near the injury which color is known in medical juris­prudence as Ecchymosed. This occurs only prior to death while after death coloration appears on the dependant portion of the dead body which is called Hypostasis. This Hypostasis indicates the situation of the dead body. 4 discreet lawyers would make proper use of these signs to throw light on the question whether the injuries were antimortem or postmortem. Again the situation of the dead body ascertained from Hypostasis should make it clear whether the death was suicidal, or homicidal. Even this test is affected by scientific developments. Joan M. Ross in his "Post-Mortem Appearances" Vth edition Page 4 dealing with Post-Mortem stains observes "It is well to note that the body which was laid in a refrigerator may show an almost life-like pink flush". This might even give the police to charge the accused of having committed cold blooded murder in a case where the accused chanced to be near a dead body subjected to refrigeration by some other person after criminal homicide by such person Hudson says "there are many ways to die but there is one way to be born". We are concerned with the cause of death in Homicide.

The effect of Forensic Medicine is more telling in case of circumstantial evidence. Wills on "circumstantial evidence" mentions a case in which the accused was charged with murder of the deceased by throttling on the ground that there were nail marks on the neck of the deceased. The case rested on circumstantial evidence alone. The defence counsel put up the plea that the deceased was subject to Epileptic fits and it was urged that during the course of epileptic seizure the deceased might have involuntarily grappled with his neck causing his own nail marks and his death by strangulation. The accused was acquitted. One can feel the necessity of knowledge in forensic medicine by a lawyer in such cases.

The average law student coming out of the University at present is totally ignorant of medical jurisprudence and it is not his fault for the reason that it is not taught in the law Colleges. Coming to the session’s trial we find often the loquacious defence counsel assuming stifled silence when he confronts the medical witness. He is interested in putting questions whether a particular injury might have been caused in the mode remotely imagined by him but he carefully avoids spelling out the nomenclature of injuries deposed to by the medical witness. This situation gives added protection to a false medical witness. The young lawyer hopes much to conduct a criminal case and he accepts with avidity a crown defense and with his ignorance of medical jurisprudence you can imagine how far a medical witness could be properly examined by him.

To conclude I would most unhesitatingly state after my most anxious consideration that elementary principles of Forensic Medicine should be taught in Law Colleges as a compulsory subject, since in cases of homicide the fate of the accused or the claim of penal justice depends upon whether the death is homicidal, suicidal or accidental. I may not refrain from saying that international law to the vast majority of lawyer’s figures as "caviare to the general''.

LEGAL FANTASIA

(T. G. John, Advocate, Trichur)

There is a popular gibe on the continent, with a tinge of lambent humour that the hardest religious vow which a Parisian spinster in the teeth of dire misfortune will take, is that she will marry and be faithful to her husband for the first year of their married life. Against a background of casinoes, night clubs, mink coats, silk shantung sacks and other crazes of fashionable Paris, she has solemnly undertaken to do almost the impossible. Nevertheless, the infidel wife of France is punishable under French law for adultery. But coming to our own country the land of rope-tricks and Sathyagrahas, it is curious that the infidel wife is not punished as an abettor "It would be more consonant with Indian ideas if the woman also were punished for adultery. Manu has provided punishment for her and in France and in China she is punished." Adultery figures in the penal law of many nations and some of the most celebrated English lawyers have considered its omission from the English law as a defect. 

This carnal sin of adultery has again struck the head-lines in Great Britain. Scotsman Ronald MacLennan and his wife Margaret a professional ice-skater, separated in 1954. Margaret crossed the Atlantic to live in Brooklyn, where, more than a year later, she gave birth to a daughter. In Scotland, Ronald laid a suit for divorce, charging that she must have committed adultery. Margaret's reply: the baby was the result of artificial insemination. Her husband answered that even if this were true he had never agreed to her adopting such a course.

Was such an act adultery? A sin or a triumph of science? These questions were exercising the best legal, religious and journalistic minds of Britain. Hearing MacLennan's suit, Lord Wheatley, a Roman Catholic Judge of Scotland's Court of Session, listened to the argument of MacLennan's lawyer that the real essence of adultery is not how it is accomplished but "the surrender of a woman's reproductive organs to another man". Commented Lord Wheatley: "Of course, it is not another man, but a test tube. She does not know who the man is. How can you have intercourse with only one person present?" In his preliminary ruling the Judge noted: ''The idea that adultery might be committed by a woman alone in the privacy of her bed-room is one with which earlier Jurists had no occasion to wrestle", concluded that it did not constitute "adultery in its legal meaning".

Lord Wheatley's ruling raised more questions than it settled. Father Paul Crane, a Roman Catholic spokesman declared: "Human beings are not cattle to be bred by test tubes. Only a pagan world would treat them as such". Britain's popular press disagreed, argued that artificial insemination could bring comfort to women previously unable to conceive. Dr. Geoffrey Fisher, Archbishop of Canterbury, addressed the synod of the convocation of Canterbury on the issue. Whether or not artificial insemination by donor was legally held to be a crime or not, he said it was a sin in the eyes of the church. "It is something far less responsible and far less human than adultery", he asserted "It violates the exclusive union set up between husband and wife. It defrauds the child begotten and deceives both his putative kinsmen and society at large."

As for Mr. MacLennan, the Archbishop added: "On the facts of this case some legislation would seem to be inevitable. If the law gives him a remedy against adultery by his wife, it can hardly deny him a remedy against his wife if she bears into his family a child born out of wedlock and without his knowledge". (Time, Jan. 27, 1958).

Late Sri K.V.Suriyanarayana Ayyar

It is with profound sorrow that we have to record the sad and sudden passing away of Sri. K. V. Surianarayana Ayyar in his residence at Ernakulam on the morning of 18th July 1970 Grievous has been the blow that has been struck by destiny in snatching away from our midst quite unexpectedly a friend and guide, a doyen of our Bar. Who argued cases and moved jovially with us till a few days back. We are deeply grieved because of his long and happy association with the Kerala Law Times as a member of our Editorial Committee. His able guidance and valuable support were a source of strength and success for us. We take this opportunity to express our tribute of gratitude for the assistance given to us by him.

Mr. Surianarayana Ayyar was born on 23rd June 1893 in Alathur Village. He set up practice in 1918 and within a short time he distinguished himself in the profession with a large and lucrative practice. In 1932 he was appointed as the Government Pleader at Calicut in which office he continued for 12 years with marked distinction and meritorious service. With the formation of the Kerala High Court in 1956 he was appointed as the first Advocate General of Kerala, and he discharged the duties of that onerous office till 1960 to the unstinted appreciation of the Bench and the Bar and the public. He was the President of the Kerala Advocates' Association. His activities were not confined to the legal profession. While at Calicut as the Chairman of the Calicut Municipality he rendered great services to the public He possessed an aptitude for thinking legally, tenacity, talents and tact, all contributing to his glorious success as an eminent advocate. He always tried to preserve the purity and prestige of the profession and the dignity of the Bench and the Bar. By his industry, individual effort and innate worth he made his way to the front rank in the Bar proving himself to be one of our most successful advocates. Many reported decisions in which he appeared and argued remain as standing monuments of his talents, erudition and profound knowledge in all branches of law. There was power in his advocacy but no bluster. He had a well-disciplined equable temper by reason of which he disarmed his opponents and hostile judges in a manner which few could emulate. Though firm and fearless, he was never offensive or insolent to the court, nor was he rude or arrogant towards the opponent. He was never showy, shallow, confused, angry or blustering in his manner. He was ''deep, yet clear; gentle, yet not dull; strong without rage, without overflowing full".

He commanded great respect with the Bench and the Bar and the public. His simple and unassuming manners earned for him the love, respect and esteem of those with whom he came into, contact. In him we have lost a great lawyer and a good man.

He will be held in affectionate remembrance by his large circle of friends and relatives and the legal profession. As for us, we can never forget him. May his soul rest in peace

"To live in the hearts of those

We leave behind is never to die".

NEW YEAR SALAD

(T. G. John, Advocate, Tricbur)

One more year has rolled by -- a year of cataclysmic events. In which the fragile, beautiful moon has slipped from the hands of the poets into the grips of the scientists. In the political arena, rhetoric, oratory, slogan-shouting and hijacking have taken the place of law and order at local, national and international levels.

Taking a flash-back of the legal arena of the world, we find many of the editors of magazines and newspapers and broad-casters of Nixon's Land balking, when the American Bar Association recommended a tough code to limit the flow of information to reporters in criminal cases. The Code was drafted by a Committee headed by Massachusetts Justice Paul Reardon and there was a general feeling that the Committee had gone too far. But all were agreed on one point that there was a real need to keep cases from being tried in the Press.

The judicial conference of the U. S. has cleared this mine-field a bit by adopting its own recommendations which attempt to discourage publicity that might influence a jury or judge and result in an unfair trial, but unlike the American Bar Association Code do not attempt to define any standard for the news media or police working beyond the confines of the court room. Instead they rely strictly on a judge's power to discipline those actually under his judicial supervision.

Still new rules have been worked by a Committee headed by U. S. Courts of Appeals Judge Irving Kauffman of New York who has called on Judges to forbid bailiffs, clerks and other Court personnel to give out information on a case unless it is part of a public record. They also urge that each court carefully define the environs of the Court-room where photographers and T. V. Cameramen may not take pictures. Like the A. B. A.  Code the federal rules would prohibit lawyers and prosecutors from divulging a confession, or an accused man^’s past record or making other statements that might result in an unfair trial. But the Kauffman rules do not provide for the two most important recommendations of the American Bar Association: (1) Exclusion under some circumstances of newsmen from preliminary hearings and other hearings (2) Recommendation that judges bring contempt of Court citations against newsmen who publish material will fully designed to influence a trial's outcome.

The American Press objected most strenuously to the last provision and as a result the Kauffman Committee preferred not to include such a rule, since the U. S. Supreme Court has yet to decide whether or not judges have the right to use their contempt powers in this way. The Kauffman Committee's recommendations are likely to become part of the rules in every federal court in the nation.

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Tailpiece:

Sir John Popham, the Lord Chief Justice who tried Sir Walter Raleigh and Guy Fawkes, studied law with the proceeds of his earlier career as a highwayman!