Neither Slot Nor Seniority

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

e-mail : ramakumarassociates@gmail.com    Ph.: 0484 - 2376428

The recent judgment of the Supreme Court in Chirag Bhanu Singh v. High Court of Himachal Pradesh reported in (2024 KLT OnLine 2227 (SC) = (2024) 9 SCC 41)makes one feel that even without establishing a Fundamental Right, the Highest Court of the country can be moved and consolation reliefs obtained. The case related to the grievance of two senior most District and Sessions Judges serving the State of Himachal Pradesh claiming the relief of certiorari to quash the minutes of the meeting of the Collegium of the Hon’ble High Court of Himachal Pradesh. The point highlighted by the higher judiciary Judges is that officers junior to them have been recommended for elevation as Judges of the High Court and seeking to consider their names for appointment.

The very prayers are really astounding particularly when they are purported to be made under Article 32 of the Constitution of India. For ready reference Article 32(1) is quoted,

Article 32. Remedies for enforcement of rights conferred by this Part--

(1) The right to move the Supreme Court by appropriate proceedings for the enforce-ment of the rights conferred by this Part is guaranteed.

A mere look at the Article, in unmistakable terms, makes clear that the right to move the Supreme Court can be only for enforcement of the rights conferred by Part-III of the Constitution of India. Is there therefore a Fundamental Right to be appointed a Judge of the High Court finding its place in Part – III of the Constitution of India? The answer can be plainly in the negative alone, as there are no Articles in the Constitution of India conferring a right on anybody to get appointed or to be considered for appointment as Judges of High Courts. Excerpts from Article 217 and 224 are extracted below,

Article 217. Appointment and conditions of the office of a Judge of a High Court--

(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and--

(a) has for at least ten years held a judicial office in the territory of India; or

(b) has for at least ten years been an advocate of a High Court  or of two or more such courts in succession;

Article 224. Appointment of additional and acting Judges--

(1) If by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein, it appears to the President that the number of the Judges of that Court should be for the time being increased,the President may, in consultation with the National Judicial Appointments Commission, appoint duly qualified persons to be additional Judges of the Court for such period not exceeding two years as he may specify.   (underlining supplied)

Article 216 mandates that every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint.

(underlining supplied). It therefore leaves no room for doubt that appointment to a constitutional position cannot be claimed even as a legal right much less a Fundamental Right. Where is the question of seniority in appointment to a constitutional post? It is far too well settled by authoritative pronouncements of the Supreme Court that a Judge of a High Court is not holding a post but a prestigious position under the Constitution of India. It cannot be claimed as a matter of right by anybody, however deserving or meritorious he thinks he is. It is the prerogative of the President of India to appoint Judges to different High Courts, the choice being left now to a Collegium both in the Supreme Court and the High Court. The question of seniority can arise only in posts and not in positions under the Constitution. There is therefore neither a slot nor seniority for appointment to a constitutional position.

Nevertheless, on behalf of two senior most District Judges, it was argued that in a letter addressed by the Minister for Law and Justice to the Chief Justice of the Himachal Pradesh High Court, a request was made for recommending two officers “against the unfilled vacancies from service quota in the Himachal Pradesh High Court”. Who has fixed the quota? Not the Constitution of India, the supreme document of the country. Article 217 (2), prescribes only the qualification for appointment as a Judge of a High Court and not any legal right. A person who has atleast 10 years held a judicial office or atleast 10 years being an Advocate of a High Court shall be qualified for appointment as a Judge. That Article or for that matter, any other Article in the Constitution of India does not prescribe any legal right, much less a Fundamental Right to be appointed a Judge of the High Court or consideration of seniority for that purpose. No citizen of India can claim as a matter of right that he is eligible, qualified, and meritorious or entitled to be appointed to the constitutional position of a Judge of the High Court. In fact, a practicing lawyer of the High Court of Madras moved a Writ Petition that he belongs to a particular backward community and therefore has a right to be appointed a Judge of the High Court which petition was rightly thrown out outright by that Court. Where then is the question of seniority among qualified persons to get appointed as a constitutional functionary? There is no service or service rule to claim seniority or a slot.

A similar claim was made in the High Court of Kerala by one of the District Judges serving the subordinate judiciary and without probably being appraised of the correct constitutional provisions, some observations have been made by the Division Bench regarding a slot which are prima facie erroneous. See what the Division Bench has said in John K. Illikkadan v. Union of India & Ors. (2020 (1) KLT OnLine 1087 (W. A.No.107 of 2020),

“It specifically speaks of the Chief Justice of India having observed that the recommendations made to fill up the vacancies set apart for Judicial Officers would be considered, only of those Judicial Officers, who have not crossed the age limit of 58½ years.”

It will be indeed unfortunate if appointment of Judges either from the Bar or from the District Judiciary is claimed as a matter of right and judicialintervention sought. It is really surprising that the Apex Court has not only entertained a petition from the two Himachal Pradesh Judges and without even prima facie establishing violation of Fundamental Rights warranting intervention under Article 32, a direction issued to the Collegium of the High Court to reconsider its decision. This is what the Apex Court said,

“The decision of the Chief Justice of the High Court, on the suitability of the two petitioners as conveyed in his letter dated 6.3.2024, appears to be an individual decision. The same therefore stands vitiated both procedurally and substantially.”                                                                                                                          [underlining supplied]

Mark the word ‘suitability’. Is suitability now made justiciable?

Significantly in paragraph 35, the Apex Court held the Writ Petition is maintainable as it questions the lack of effective consultation, without however clarifying or elucidating how absence of effective consultation will infringe the Fundamental Right of a District Judge seeking elevation as Judge of the High Court. The decision of the Apex Court under comment will have the tendency to open a Pandora’s Box as is evident from a similar Writ Petition filed by two senior District Judges of the Kerala Judiciary which petition however was rejected at the threshold.

In Illikkadan case(supra), a learned single Judge of the Kerala High Court rejected the Writ Petition on the ground that the position claimed is a constitutional post to which he has no substantive right of appointment nor is there any violation of service conditions. Where then is the question of a quota or seniority in a constitutional position? How then can the Apex Court be persuaded to exercise an extraordinary power conferred on it under Article 32 sans violation of a Fundamental Right?

Yet in Illikkadan case as well, the Ministry of Law and Justice makes a reference to filling up the vacancies ‘set apart’ for judicial officers. Where is such setting apart in the Constitution of India?

Maybe conventions, healthy enough to avoid demoralization to the members of the subordinate judiciary many of whom rightly aspire to hold the constitutional position of a Judge, exist. There is a memorandum of procedure as well prescribed by the Ministry of Law. They also however do not provide any ground for claiming as of right a constitutional position. The judgment in Himachal Case therefore raises more questions than answers.

Looking back it will be relevant to remember the glittering and glorious past of judicial institutions when prominent members of the Bar were invited to join the judiciary and many of them accepted it as a call of duty, forsaking all comforts in life.What was once an honour, has unfortunately turned out to be an object of litigation, which are aimed at canvassing for and securing high constitutional positions. Recognition like respect has to be commanded, not demanded. Aspirations, natural though, may often lead to anguish, but cannot be elevated to litigable rights.

Justice Shri.Rajendra Menon was given a raw deal. Justice Shri. Kureshi did not demur and demitted office dignified. Sri. Sriram Panchu, prominent lawyer of Madras, declined the offer of Judgeship disgusted. Judgeship should neither be sought after nor fought out.

With all pitfalls, perennial delays and pestilent pendency, please remember, of the three organs of the State, the Judiciary continues to be the best bet of the common man. Let us preserve it.

PRESIDENTIAL ADDRESS

Presented by

O.V. Radhakrishnan, Senior Advocate, High Court of Kerala

Hon’ble Mr.Justice K.M.joseph, Former Judge, Supreme Court,
Mr.Asif Ali, Former Director General of Prosecution, High Court of Kerala and Mr.Prsanth Padmanabhan, Advocate-on-record, Supreme Court
and other Hon’ble Dignitaries, Respected Seniors, Advocate Friends,
Ladies and Gentlemen,

It has been our pleasure and privilege to have Mr.Justice K.M. Joseph amidst us for inauguration of this Discussion Programme on the subject “Uniform Civil Code and its Implementation” organized by the Indian Lawyers’ Association, an apolitical organization to enlighten public awareness of the importance of and significant benefits of adopting the Uniform Civil Code in India.

The Uniform Civil Code has been a topic of heated debate and one of the intense subjects of discussion since the country’s independence.  The expression “Uniform Civil Code” is defined in Article 44 under Part IV of the Constitution.  Article 44 is a provision writ in strong diction that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.  The Uniform Civil Code is a legal framework and is a set of uniform laws regarding various matters like inheritance, marriage, adoption, succession and divorce applicable to all citizens irrespective of their religion, community, race, sex and caste.  Uniform Civil Code primarily aims to promote social harmony, gender equality and secularism by eliminating separate legal system based on different religions and communities.  Indeed, implementing a Uniform Civil Code in India would align with the principles of secularism enshrined in our Constitution.  Secularism is the belief that religion should not be involved with the ordinary social and political activity of a country.  In a secular State or society, religion has less and less influence on daily lives.  Be it so, implementing a Uniform Civil Code could foster national integration by bridging religious divides and fostering a sense of unity and shared identity. The existence of multiple personal laws creates confusion and complexities.  Codification of a Common Civil Code is to create a single set of laws governing personal matters  such as marriage, divorce, inheritance, adoption for all citizens, regardless of their religion. Presently, different religious communities in India follow their own personal laws.  If and when, a Uniform Civil Code is implemented unifying all personal laws followed by different religious communities, all the Indians will unite as one and promote a sense of unity and national identity among citizens, fostering harmony in a diverse country like India. Having a single set of laws for personal matters would simplify the legal system leading to more efficient legal processes and reduce confusion and uncertainties.  It would assure legal clarity and consistency.   

It would seem valuable to indicate that Article 44 is included in Part IV – Directive Principles of State Policy under the Constitution. Article 37 provides that the provisions contained in Part IV are not enforceable by any Court but the principles therein laid down are nevertheless, fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. The principal object in enacting the directive principles appears to have been to set standards of achievement before the legislature and the executive, the local and other authorities, by which their success or failure could be judged.  Those, failing to implement the directives might receive a rude awakening at the polls as indicated by Seervai in Constitutional Law of India (1st edn.) P759. 

A Constitution Bench of the Hon’ble Supreme Court in Mohd.Ahmed Khan v. Shah Bano Begum reported in (1985 KLT OnLine 1235 (SC) = ((1985) 2 SCC 556 - paragraph 32) observed that it is also a matter of regret that Article 44 of our Constitution has remained a dead letter. A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so.  The Hon’ble Supreme Court exhorted that a beginning has to be made if the Constitution is to have any meaning.

In Sarala Mudgal (SMT), President, Kalyani & Ors. v. Union of India & Ors. (1995 (2) KLT 45 (SC) = (1995) 3 SCC 635) the Hon’ble Supreme Court ruled:

“32. One wonders how long will it take for the Government of the day to implement the mandate of the Framers of the Constitution under Article 44 of the Constitution of India.  The traditional Hindu law – personal law of the Hindus – governing inheritance, succession and marriage was given a go-by as back as 1955-56 by codifying the same.  There is no justification whatsoever in delaying indefinitely the introduction of a uniform personal law in the country.”

“33.  ......The personal law of the Hindus, such as relating to marriage, succession and the like have all a sacramental origin, in the same manner as in the case of the Muslims or the Christians.  The Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a “common civil code” for the whole of India.”

In Lilly Thomas v. Union of India (2000 (2) KLT SN 53 (C.No. 62) SC = (2000) 6 SCC 224)the Hon’ble Supreme Court held:

“68.  .......This Court has time and again reiterated the position that directives, as detailed in Part IV of the Constitution are not enforceable in courts as they do not create any justiciable rights in favour of any person.  ......”

In John Vallamattom v.. Union of India (2003 (3) KLT 66 (SC) = (2003) 6 SCC 611) the Hon’ble Supreme Court declared Section 118 of the Indian Succession Act which imposed restrictions on Christian in making charitable bequests as unconstitutional as it was discriminatory against Christians.  The Judgement called for the enactment of a Uniform Civil Code to eliminate such disparities. 

In Shayara Bano v. Union of India [2017 (3) KLT SN 67 (C.No. 87) SC = (2017) 9  SCC 1]
the Hon’ble Supreme Court declared the practice of Triple Talaq as unconstitutional holding that it was arbitrary and violated the fundamental rights of Muslim women.The above Judgement called for attention to the urgent need for a Uniform Civil Code to ensure gender justice and equality, highlighting the shortcomings of personal laws that discriminate against women.

In Joseph Shine v.. Union of India (2017 (4) KLT OnLine 2218 (SC) = (2018) 2 SCC 189)
the Hon’ble Supreme Court struck down Section 497 of the Indian Penal Code which criminalised adultery for men but not for women declaring it as unconstitutional being discriminatory and violating the right to equality.  In the above Judgement, the Hon’ble Supreme Court emphasized the principle of equality and underscored the need for uniform laws that do not discriminate based on gender or religion.  

As of now, India does not have a Uniform Civil Code implemented at the national level.  Over the years, the Central Government as well as some States have made certain efforts towards the implementation of the Uniform Civil Code.  Special Marriage Act, 1954 was enacted to provide a secular alternative in marriages.  It lays down provisions for civil marriage for the people of India and all Indian National in Foreign Countries, irrespective of religion or faith followed by either party.  The Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoption and Maintenance Act, 1956 are 4 Acts enacted under Hindu Code Bills seek to codify and bring uniformity in personal laws within the Hindu community.   

It must be emphasized that implementation of the Uniform Civil Code will bring  uniformity to the Country, it will uplift women and oppressed religious communities deprived of their rights. Today, Uttarakhand and Goa are the only two Indian States where the Uniform Civil Code is implemented.   It is a progressive step towards achieving equality and eliminating discriminatory practices based on religion.  It will promote national integration and simplify the legal system.  The objective of Uniform Civil Code is One Nation and One Law.

Thanking you.

Beyond Measure:
The Incomparable Loss of a Child in Road Accidents

(By A.V.M. Salahuddeen (Kecheri), Advocate, High Court of Kerala)
E-mail : avmsalahudden@yahoo.in,       Mob. 9447024012

In road accident cases where children tragically lose their lives, calculating fair compensation for their families becomes a difficult and complex task. Children have often viewed as the hope and future of their families. Today, most parents have just one or two children, so losing them is even more heart-breaking as it destroys their hopes and dreams.

When children between the ages of 1 and 15 die in road accidents, the judicial system appears to struggle with assessing adequate compensation for dependency. This difficulty arises primly because children, unlike adults, do not have an income. Compensation for dependency in motor accident cases is generally based on the financial loss suffered by the legal heirs or dependants of the deceased and typically the compensation is calculated based on the income of the deceased at the time of the accident. As a result, determining the income of the children who tragically lose their lives in accidents becomes a crucial factor in assessing the compensation.

How should the income of children be calculated in motor accident compensation cases? In such cases, the courts generally classify children in to age group of 1 to 15 years. Even within this range, children are often divided into two groups: Those between 1 and 6 years and those between 6 and 15 years (2019 (4) KLT 39 - National Insurance Co. Ltd. v.Assainar). Let us first discuss the case of children in the 1 to 6 years age group.

Children between the ages of 1 and 6 are usually the cherished offspring of their parents, who have not yet begun formal schooling. It is impossible to predict what heights these children might reach as they grow older. However, when such young children lose their lives in a motor accident, the compensation amount must still be determined for their parents. For children in this age group, lump sum compensation is normally awarded by the courts. In today’s world, most parents choose who have only one or two children, investing all their hopes and dreams in them. In light of this, it is crucial to provide substantial compensation when children tragically lose their lives in motor accidents.

It is impossible to predict what children will become in future once they grow up and complete their education. However, when certain children show exceptional academic ability or talents in sports and arts, their parents and others naturally hope that they will achieve great success in life. If such gifted and talented children lose their lives or permanently disable in a motor vehicle accident and their legal heirs can prove their abilities in the court and they should entitled substantial compensation (2014 (3) KLT Suppl.105 (SC) - Mekala v.. Malathi. M. & Anr.). Similarly, children who do not show much promise in their early years can still develop into individuals with considerable earning potential. Therefore as a general practice, when minors lose their lives in a road accident, a hypothetical income should be assigned to them, which can be increased progressively over time and the compensation should be calculated accordingly.

It is unfortunate that today, when a daily wage worker dies in a road accident, even their presumed income is higher than what is typically considered for a talented child in similar circumstances. Therefore, when a child’s abilities cannot be confirmed, a fair method at least to calculate their notional income for compensation must be applied as shown in the case of Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd. case (2011 (3) KLT Suppl.80 (SC).

In motor accident cases, compensation is typically awarded to the dependents of the deceased. However, when minors lose their lives in such accidents, it is the rightful claimants of the children, usually their parents, who are entitled to compensation. The Apex Court held that in case of the death of children, the parents are entitled to, as a general rule, the present value of the prospective services and pecuniary benefits reasonably expected from them, by way of compensation (1970 ACJ 110, C.K.Subramonia Iyer & Ors. v. Kunhikuttan Nair & Ors.). In these situations, the compensation awarded to the claimants should be more substantial than what would be given to regular dependents. Therefore when minor children die in road accidents, the calculation of the compensation amount for the claimants must use the multiplier method.

To determine the compensation, the notional income of the minor should be considered, much like the presumed income of an adult by adding future prospects and a higher multiplier (i.e., 18) to calculate the compensation. The Supreme Court’s judgment in Ramachandrappa case can serve as a guide when determine the notional income of the injured or deceased. If it can be proven that the deceased child was exceptionally talented academically or otherwise, the compensation amount should be calculated using an income figure higher than that is specified in Ramachandrappa case. Otherwise, it would be an injustice to the child and their grieving parents.

Currently, there is no consistent standard in court rulings regarding compensation for minors and many judgments result in arbitrary and insufficient amounts being awarded. The lack of a proper benchmark had led to unfair compensation in numerous cases. Although rulings like the one by Hon’ble Mr.Justice P.B.Sureshkumar in 2019 (4) KLT 39), National Insurance Company Ltd. v. Assainar, have aimed for fairness, they often still result in compensation amounts that fall short and fail to truly capture the extent of loss experienced. Thus, when minor children tragically die in road accidents, the compensation awarded to their claimants should be just and on par with what would be awarded in cases involving adults.

Designation as Senior Advocate : Myths and Realities

(By Philip Mathew, Advocate, High Court of Kerala)

E-mail : advphilip@hotmail.com,  Mob. 9447636500

“For promotion cometh neither from the east, nor from the west, nor from the south. But God is the judge: he putteth down one, and setteth up another.”                                                                                                                     --  Psalm 75:6-7

The word, Advocate comes from the courtroom parlance. From Latin word, “advocare”,to “add” a “voice”. To advocate is to add a voice of support to a particular cause or person’s cause of action. An advocate is anyone who adds that voice by representing another person in court, or by supporting or working towards a particular course of action for the redressal of the grievance of another person.

 “Senior Counsel” title  is still used in many common wealth countries including India instead of  King’s Counsel or Queen’s Counsel as the case may be in UK . The countries like India have chosen Senior Counsel/Senior Advocate which is a name without monarchical connotations. The nomenclature of the legal profession in US is totally different in this respect.

In England, the admission of lawyers has been regulated since the middle of the 13th century. In the late 13th century, three critical regulations were adopted – (i) the Statute of Westminster I, Chapter 29 (1275); (ii). The London Ordinance of 1280; and (iii) the Ordinance of 1292. During the medieval period, further regulations were enacted, called the Statute - 4 Henry IV, Chapter 18 (1402) and the Ordinance - 33 Henry VI, Chapter 7 (1455). In addition, Judges have always used their inherent power to control the admission of lawyers and check their misconduct in the legal profession.

Thomas Wright says in “Political Songs of England”,

                  “Attorneys in country, they get silver for naught;

                  They make men begin what they never had thought;

                  And when they come to the ring, they hop if they can.

                  All they can get that way, they think all is won for them with skill.

                  No man should trust them, so false are they in the bile.”

The earliest traces of legal profession in India go back to the establishment of First British Court in Bombay in 1672 by Governor Aungier. The admission of attorney was in the hands of Governor in Council. Then came ‘Mayor’s Court. Under the Charter of 1726,
three Mayor’s courts were established in the three presidency towns, Bombay, Calcutta and Madras. No particular qualifications were prescribed to be a lawyer and the matter was left to the Courts. The Mayor’s  Court had the following functions : (1) Framing of rules and Appointment of Officers. (2) Administration of Justice.

During this period two principles were established related to legal profession; (a) right of an attorney to protect the rights of his client in spite of opposition from Council or the Governor was upheld for attorneys in each of the Mayor’s Court and (b) Mayor’s Court had established the right to dismiss an attorney guilty of misconduct.By the Regulating Act of 1773, three Supreme Courts , Supreme Court of Calcutta (1774), Supreme Court of Madras (1801), Supreme Court at Bombay (1822) were established. For the first time the qualification of the Chief Justice and puisne judges were prescribed. The Charter of the Court required that the Chief Justice and puisne Judges should be English barristers of at least five years of standing.By the Regulation Act of 1793, Advocates could not demand or accept any fees, goods, effects or valuable consideration from the clients over and above the sanctioned fees.The ultimate punishment for the violation of this rule was the dismissal of a lawyer from practice .

It was the Regulation of 1793 that laid the foundation of filing of vakalatnamas ( now described under Order III, Rule 2 and 4 of CPC, 1908) . Vakeels attached to one court were
not permitted to plead in any other court . Every pleader was required to attend the court regularly and punctually. Absence in the Court had to be notified to the Registrar of the Court. Failure to do so would make  an Advocate liable to fine. A pleader showing disrespect to the court could also be fined.

Under the Code of Civil Procedure, 1908,Section 2(15) only the word, pleader is defined
and it is defined as “pleader” means any person entitled to appear and plead for another in Court, and includes an advocate, a vakil and an attorney of a High Court.
A power of attorney holder is only a recognised agent and not a pleader as can be seen from Order III, Rule 1 of the Code of Civil Procedure,1908.

The Advocates Act,1961 was enacted  by the Parliament “to amend and consolidate the law relating to legal practitioners and to provide for the constitution of Bar Councils and an All-India Bar”. Under Section 2(a) “Advocate” means an advocate entered in any roll under the provisions of this Act” while legal practitioner under Section 2(i) of the Advocates Act,1961 means an advocate or vakil of any High Court, a pleader, mukhtar or revenue agent”.

The Advocates Act,1961  makes a provision for two kinds of advocates i.e., Senior Advocates and other advocates under Section 16. However, the Supreme Court of India has, in exercise of its rule making power, has also made a provision for qualified advocate-on-record which is not followed in the same manner by the High Courts for filing the vakkalathnamas.

The Senior Advocates are distinguished from other  advocates in a few ways. Senior Advocates are designated as such either by the Supreme Court of India or by any High Court. The Supreme Court or any High Court can designate any advocate, with his consent, as Senior Advocate if in its opinion by virtue of his ability and standing at the Bar or special knowledge or experience in law, if the said advocate is deserving of such distinction. A Senior Advocate is not entitled to appear without an Advocate-on-Record in the Supreme Court or without the physical presence of another  advocate  along with him   in any other court or tribunal in India. He is also not entitled to accept instructions from the clients to draw pleadings or affidavits,to advise on evidence or to do any drafting work of an analogous kind in any court or tribunal in India or undertake conveyancing work of any kind whatsoever, but this prohibition shall not extend to settling any such matter as aforesaid in consultation with a junior or another advocate. In other words, he should not have any direct professional dealings with any client. Further, under Section 23(5) of the Advocates Act,1961,(i)senior advocates shall have pre-audience over other advocates, and (ii) the right of pre-audience of senior advocates inter se and other advocates  inter se shall be determined by their respective seniority. However, this right of pre-audience is seen ‘more honoured in the breach than the observance’.

The Hon’ble Supreme Court inMathews.J. Nedumpara & Ors. v. Union of India & Ors. reported in (2023 KLT OnLine 1873 (SC) = (2024)1SCC1) held that that the practice of designating seniors in the constitutional courts is based on intelligible differentia and standardised matrix of merit. Affirming the relevant provisions of the Advocates Act,1961 the Bench said that the process of designating senior advocates is “not based on artificial or arbitrary distinction” and is aligned with the age-old tradition of lawyers assisting the court in the process of evolution of law and jurisprudence.

Earlier, Madurai Bench of the Madras High Court S.Lawrence Vimalraj .. Petitioner v.The Registrar (Judicial), High Court of Madras, Madurai Bench, Madurai - 623 023
(W.P.(MD)No.27523 of 2022)held that “It is clear that Section 16(2) of the Advocates Act clearly emphasis, firstly, that it is a distinction conferred and not something that comes about automatically upon achieving known or predetermined standards. It is a privilege based upon the opinion of the Court considering ability, standing at the Bar or special knowledge or experience in law. Thus, it is a subjective decision though based on objective considerations.”

The rules framed by the Bar Council of India under Section 49(1)(gg) of the Advocates Act, 1961, prescribe the same dress for all the advocates irrespective of whether they are designated Senior Advocates or other advocates which  is as follows:

Chapter IV

Form of dress or robes to be worn by advocates

[Rule under Section 49(1)(gg) of the Act]

Advocates, appearing in the Supreme Court, High Court, Subordinate Courts, tribunals or Authorities shall wear the following as part of their dress which shall be sober and dignified;

I. Advocates other than lady advocates:

1. (a)a black buttoned upcoat, chapkan, achkan, black sherwani and white bands with Advocate’s gown, or

(b)a black open breast coat, white shirt, white collar, stiff or soft and white bands with Advocates’ gowns.

In either case wear long trousers (white, black, striped or grey) or dhotiexcluding Jeans.

II. Lady Advocates:

2. (a) Black and full or half-sleeve jacket or blouse, white collar, stiff or soft and white bands with Advocates’ gowns;

White blouse with or without collar, with white bands and a black open breast coat.

(b)Sarees or long skirts (White or black or any mellow or subdued colour without any print or design) or Flare (white, black or black-striped or grey) or Punjabi dress (Churidar - Kurta or Salwar - Kurta with or without dupatta) (white or black) or traditional dress with black coat and bands.

Wearing of Advocate’s gown shall be optional except when appearing in the Supreme Court or in  High Courts.

iv. Except in Supreme Court and High Courts during summer, wearing of black coat is not mandatory.

It may  be noticed from the above rule, that no special dress is prescribed for Designated Senior Advocates. However, Senior Advocates by convention and by practice wear a different gown which is distinct from the normal gown worn by all other advocates. They put on Queen’s/King’s  Counsel gown, although they are not Queen’s/King’s  Counsel, in order to make their presence felt by wearing a  slightly different pattern in their gown and coat and mainly to impress other advocates, courts and clients that they have got a seal of better recognition from the High Court or Supreme Court. The coats or jackets decorated with frills and fineries with double back and arms flowing add to colour of their verbal presentation of the case before the Court and to make thereby an impression by this  external outfitting. As in Shakespeare’s Hamlet, Polonius tells his son Laertes to dress well because “apparel oft proclaims the man”.

Coming back to Kerala,  following the Judgment dated 12-05-2023 of the Honourable Supreme Court of India inMs. lndira Jaising v. Supreme Court of India in Writ Petition (Civil) No.454 of 2015 (2022 (3) KLT 744 (SC)), the High Court of Kerala amended the Rules relating to designation of the Senior Advocates and made the same on a  on points based system  except in cases where the Full Court by consensus may confer the designation of Senior Advocate, suo motu, on any advocate otherwise eligible, if in the opinion of the Full Court, he/she is a person of exceptional quality, eminence and has special expertise in any field of law.

The points based system to be applied in other cases are (i) where the name is proposed by a sitting Judge or (ii) recommended by two designated senior advocates or (iii)by one’s own application and  points are awarded separately checking   the number of years of practice from the date of enrolment, number of reported judgments of the applicant and the applicant’s involvement in the public interest litigation , domain expertise of those who are not general practitioners of law, publication of articles and teaching assignments in law colleges and universities and upon testing the personality and suitability on the basis of the performance at the interview and it will also be borne in mind of the Selection Committee whether the Applicant is a first generation lawyer. But no points are awarded specifically on that score. Unfortunately, academic distinctions achieved and the higher qualifications like Master’s Degree(LL.M) and Doctoral Degrees and Post Doctoral studies undertaken do not find a place in the points based system. It appears to be similar to the points based system for   grant of visas to the aspiring applicants from India  by some countries like UK, Canada and Australia for  work-permit and immigration purposes.A re-look at the presently followed  points based system is highly desirable as many beneficiaries therein are likely to remain grounded without a take-off.

The writer of this article had in the year 1988 had opportunity to have a lively conver-sation with Sri.Ashok Desai  who was already by then a Senior Advocate with a  large and impressive practice at the High Court of Bombay before he moved to Delhi in the year 1989 and later went on to become the Attorney General of India. He had come to Chennai to appear before the Company Law Board for a Mauritian based company which had some investment issues with an Indian company. During the lunch break time, as I was sitting near his side at the Court hall during the lunch recess, he asked about me and from where I am coming and what matter is mine before the Company Law Board, etc. Out of my curiosity, I asked him since he was a Senior Advocate how one could aspire to become a designated Senior Advocate and how long one should wait for. His answer was simple. You need not wait for a Senior Designation and when you are confident and feel that you are a senior advocate, you have made yourself and the rest is only peripheral. The conferment of senior designation is only a post recognition of your merit already acclaimed by the bar and that you have already achieved by then. If the Bar does not recognize you as a Senior, what difference the designation would be able to bring if it comes as a largesse from the grantor, namely, the High Court or the Supreme Court. It sounded me very true. As a Senior Advocate, unless you are briefed by other advocates, not by juniors of your own office, you will tend to lose your relevance as a Senior Advocate. If one wants to become a true senior counsel, it requires lifelong dedication, hard work and a passion for innovative legal learning and thinking  since the success of a lawyer is considered as a life-time achievement. As Napoleon Hill said, the way of success is the way of continuous pursuit of knowledge. A Senior  Advocate, if he on that score lags behind other ordinary advocates, leave  alone his peers in the elite club of senior advocates, will soon run the risk of losing his reputation that he rightly or otherwise claims as a result of his designation as a senior advocate. He will make the bar and the bench to remind the blue jackal story from Panchatantra Tales proving his designation as a Senior Advocate to be a disaster for himself.

Times have changed. The greater and better access to the new technology coupled with rapid technological advances with which the new generation of lawyers are blessed  compared to the lawyers in the middle age and old age group and  the gap of legal knowledge have got narrowed down to a thin and gradually disappearing dividing line. There is not much difference between a present day law graduate from a National Law School in India with his almost likely acquisition of a post graduation in law from a prestigious Indian or foreign institution/university  and a lawyer, though having good number of years to his credit at the bar but who had no such background and facilities when he resumed his practice, years back. It is like the present day university professors who find themselves in an unsavoury and awkward situation to realize that the present day students have stolen a march over them in knowledge content and its updation  thanks to the new technology available to them. To find oneself in the special costumes of  a Senior Advocate standing before the court among the flock of ordinary advocates is an appealing thought to oneself   but  losing a court room battle in a good meritorious case against a better equipped ordinary advocate  will certainly take away the sheen out of the silky gown that he wears.

KLT Exclusive Interview

In Conversation with Former Justice Alexander Thomas,

Chairperson, Kerala State Human Rights Commission

(Interviewed by Adv. Ashly Harshad, Assistant Editor, KLT)

Justice Alexander Thomas, a distinguished legal figure with deep insights into constitutional philosophy, reflects on his transition from active law career to retirement as a Judge of Kerala High Court, offering a rich philosophical take on this new chapter. Now serving as the Chairperson in the Kerala Human Rights Commission, he shares his reflections on justice, human rights, and the future of our constitutional democracy.

Q.  “The ship has come to a halt, signaling my turn to step ashore at the harbour. A fresh adventure beckons me, and the next ship eagerly awaits my embarkation. The juncture has emerged for you to carry on with this voyage in my absence and I entrust you with its continuation, with pride and confidence. Once more, I want to convey my deep appreciation for this remarkable expedition and the honour of partaking in it alongside all of you. I truly hope that the different journeys ahead, for both me and all of you, will be brimming with even more adventures and wonderful experiences. Farewell and onward to new horizons!” I would like to start with these heart touching words from your farewell speech as a Judge of High Court of Kerala. With a beautiful metaphor you have explained a transition in life. Can you describe this time of your professional career where you are experiencing a significant shift from a High Court Judge to the Chairperson of Kerala State Human Rights Commission. How do you handle the transitions in your life and what lessons did you take away from these experiences?

I may initially deal with your question regarding my transition from active participation in the Bar and the Bench to the stage of retiral life. I am tempted to see it from the prism of “emptiness of fullness” and the “fullness of emptiness”. I think, it was in the 2nd Century that the Buddhist Acharya, Nagarjuna, taught that emptiness (“Sunyata”) is not nothingness, but the very foundation of everything and that it is because of this emptiness, that everything is possible. It is said that the “fertile void” is the idea that moments in life marked by massive transitions, emptiness, loss and confusion can also be moments of wonderful possibilities.

Recently, I just glanced through an interesting article in a book published by Routledge, which speaks about the fullness of emptiness. It may not be out of place to mention about a poem that is being circulated in the social media, which among the other things, says something like this: -

“--------Time does not always need to be filled,

Feel the fullness of emptiness,

the vastness of the silence,

the sheer life in your unproductive moments----!”

So, my takeaway, during this period of my transition is that when you think that your hands are full of responsibilities and duties, then beyond that there is emptiness. So, also, when you really feel that you face emptiness, then it is about time to enjoy its fullness.

Now let me deal with your query on my new assignment. The Human Rights Commission is a quasi-judicial body entrusted with the task of protection of human rights and determination of issues of violation of human rights. From my limited experience of about 6-7 weeks, I feel that a different perspective and framework is required in this task, compared to the traditional adjudicatory mechanism of courts. The vast majority of complainants are from the marginalised peripheries of our society, and they often appear in person, without legal representation. At the same time, one should be well grounded in the theoria and praxis of human rights discourse, and a balanced understanding of both western centric and Indian jurisprudence on human rights is called for. The acclaimed treatises of Prof. Upendra Baxi, namely, “Future of Human Rights” and “Human Rights in a Post Human World” could be a beacon light to navigate the rough seas of human rights discourse. I am also reminded of the view of Prof. Upendra Baxi, the eminent jurist, who has posited “jurisprudence” vis-à-vis “demosprudence”. He conceives that the legislature, the executive, the judiciary, the academy, the profession and various related institutions, as trustees of enlarged Government, that is constitutionally obligated in building a society and citizenry, where there is balance and harmony between the Fundamental Rights and the Directive Principles of State Policy. He calls this democratic adjudication, “co-governance” of the nation as “demosprudence”. Surely, it will take a long time in this journey. Statutory bodies like Human Rights, can also play their small, but vital role, within its demarcated space, in this process.

Q. You’ve had an interesting academic journey, starting with an M.Sc. in Physics at CUSAT and eventually transitioning to law. What inspired you to make such a significant switch in your career path? Did your involvement in student activism during Cochin University days play a role in influencing this decision? It’s been said that you were the only science student who would join the protests in the University?

Due to delayed publication of my B.Sc Physics examination results in September 1982, I could not secure admission for LLB course in the Delhi University’s Law Faculty, where the course starts by middle of July. At Cochin University, by the sheer force of circumstances, I had participated in a student movement, as many of the grievances of the student community regarding hostel facilities, etc., were not effectively redressed. More than student politics, it was these genuine grievances that made me involve as part of the student protest movement. Incidentally then, I came to know of a few of the student leaders, who were ardent followers of Late Shri.Jayaprakash Narayan (J.P.). I was not part of any student organization having political affiliation. I was later elected to the council of the Cochin University Students’ Union, though I lost the election to its chairmanship, by a few votes. I had actively participated as its councilor and at my initiative, a two-member special committee consisting of myself, and another senior student was formed to examine and report on reforms to the University union, especially its elections.

To effectively answer the other part of your question, I may say that this little fire or concern for freedom of others were kindled in me, as a young teenager studying in Std.IX, when I came to know that eminent elderly national leaders like J.P., Shri Morarji Desai and a host of others were arrested and detained due to the declaration of internal emergency in June 1975. Since then, I became an avid reader of National affairs and in spite of my SSLC examination, I had closely followed the historic parliamentary elections in March 1977 and the events since then. I have never been involved in any political party. But I have always been a concerned observer of the polity, society and economy of our great country. It is this interest and concern in the freedom and civil liberties that influenced my decision to join law degree course in Delhi University. Looking back, I think that being this “outsider” observer of the polity and society, has helped me in understanding the constitutional perspectives of
Dr.B.R.Ambedkar, who has propounded that both justice and democracy, have their respective Trinitarian components namely, political, social and economic.

Q. How do you view the role of student activism in educational institutions? In light of the recent violent protests in the neighbouring country and those we’ve witnessed here a few years ago, do you believe students should prioritize their studies over political engagement, or is there value in their involvement in such movements?

On issues such as student activism, one cannot have a dogmatic or straight jacket approach. But I may say that the conventional uncritical approach to student politics that we have seen in the last 50-60 years after independence, may require calibration and modulation. This is due to the needs of the present times, when we see fast changes in the knowledge sector, especially not only in science and Technology, but also in social sciences and humanities. Moreover, the problem of unemployment faced by the youth is very acute. But I equally feel that any re-calibration of perspectives, should not lead to extreme responses. Our youngsters are also responsible and ambitious, and I think wide ranging consultation with various stake holders is required.

On the second part of your query, you may be referring to the recent incidents in Bangladesh. On this, I need only quote the words of the Hon’ble C.J.I. Dr. D.Y. Chandrachud, who said regarding developments in the neighbouring country, that we should remind ourselves of the precious value of our freedoms and liberties and we should not take it for granted.

As regards the student engagement issue we have to bear in mind that possibilities of abuse of freedoms may not be a justification for onerous restrictions thereon. We all know that many youngsters and even lawyers had given up their freedom to fight for our freedom struggle. Former C.J.I., late Justice P.N. Bhagawati, after graduating in Mathematics had courted arrest during the Quit India movement in 1942, at the tender age of 21 and had even remained underground for 4 months. It was thereafter that he joined for his law studies.

In the present times, we have to find out a “madhyamika”, middle path for regulatory norms on student engagement in parties. True that political parties, due to partisan interest, may have their own agenda to control student politics. Violence and extreme partisanship should be avoided. As a student of B.Sc. at the University College, Trivandrum, one could see extreme violence in student politics. Strikes were the order of the day. The student involvement in politics up to the plus two level and at the University level, may require differential treatment. But to say that there is no value for student engagement in “public sphere” is to shut our eyes to the reality of the role of the polity and society in shaping our lives. In the times to come, it may be more appropriate to think in terms of university students’ engagement in the public sphere and not merely in politics. By “public sphere” I have in mind, the concept of the German Philosopher, Jurgen Habermas. He has conceived public sphere as the area in social life, where individual can come together to freely discuss and identify societal problems and through such discussions, influence action by the State and polity.

Q. You read law at the University of Delhi and enrolled as an advocate in the year 1988. Beginning your legal career under the guidance of the esteemed Senior Advocate and former Advocate General, Late Sri. M.K. Damodaran, must have been a formative experience. Could you share any memorable experiences or lessons from those early years at bar that have shaped your journey in the legal profession?

Though I initially wanted to join the chamber of a civil lawyer, fate or synchronicity destined otherwise. I joined the law chamber of the senior lawyer Shri. M.K. Damodaran, who was one of the leading doyens of the criminal bar and was also having wide and varied types of cases in the field of public law. His relationship as my mentor was enduring and continued for a long time, even after I had set up independent practice. Right from the beginning, he had entrusted various cases to me for drafting and even for arguments in the courts. Thereafter, when he was appointed as Advocate General of the State in May 1996,
I had the privilege of being initially appointed as Govt. Pleader and then as Sr.Government Pleader. There was a great element of comraderie and fraternity amongst the team of lawyers in his law chamber and amongst the team of state law officers, during his tenure as Advocate General. Three lawyers who were in both these teams, namely, Justice V.K.Mohanan, Justice C.T.Ravikumar (who was later elevated to the Apex Court) and myself, were later appointed as Judges of the High Court. This was indeed a wonderful and thrilling period in both my personal and professional life. The wide ranging and challenging experience gained in working under my senior had tremendously helped in moulding my professional career. His sad demise in August 2017 was a great loss to me. May I offer my Pranams to him.

Q. You embarked on a different journey after being appointed as an Additional Judge in 2014. What were some of the significant challenges and milestones during this period?

I was allowed different subject jurisdictions. At the Single Bench level, it was mainly criminal matters, company matters, writ matters in land laws, local bodies etc. The work in criminal jurisdiction was very interesting and challenging, whether it was criminal miscellaneous case, bail matters, criminal appeals or revisions. I tried my level best to not only apply the laws to the factual scenarios, but also to assess the truth of the matter, to the extent judicially possible. One of the most challenging times that all of us faced was the Covid pandemic period. Since the lawyers were then facing a steep fall in their incomes during those times, I gave top priority to ensure final disposal of maximum number of writ cases, so that the lawyers could secure their fee. Due to the active co-operation of both sides, especially the law officers and the standing counsels, I could succeed to a significant level in that regard.

The Division Bench roster allocations was mainly service matters, preventive detention and criminal appeals. I have endeavored my level best. But it may not be out of place to mention that the Division Bench presided over by me, could make a vital initiative for introducing mitigation evaluation of death row convicts, at the initial appellate stage, instead of waiting till the death sentence references are taken up for final hearing.

Q. Throughout your tenure, you have been recognized for your independence and humanist approach. During your tenure as a Judge of the Kerala High Court, were there any moments or cases that deeply moved or impacted you? Could you share any such experiences? In your view, is the judiciary truly the last bastion of democracy? Are civil liberties genuinely being protected, or do they suffer under the current system?

I do not want to make any comments on your opinion of my independence and humane approach, as it is for the Bar to give their verdicts. As the saying goes, you do not enter the same river twice and the river of time has flowed.

Looking at the latter part of your question from a different perspective, during the 1950s to early 1970s, we had eminent lawyers like Shri M.K.Nambyar, who argued key constitutional cases such as AK Gopalan and Golaknath, wherein the doctrine of implied limitations on constitution amendment powers was advanced. He is stated to have drawn up the lead petition in the Kesavananda Bharati case, though he could not appear personally due to ill health. From the mid-seventies, we know that it is erudite and independent lawyers like Shri. Nani A. Palkivala and a host of others, who could defend our freedom and constitutionalism in vital litigation, including Kesavananda Bharati, Minerva Mills, etc. The attempts to review the Kesavananda Bharati doctrine during emergency times, were nipped in the bud by Shri Palkivala, who straddled like a colossus in our legal system. After demitting office Justice H.R. Khanna praised Shri Palkivala’s advocacy in Kesavananda review case and remarked that “It was not Nani who spoke. It was divinity speaking through him”. Of course, in many cases, there were judges like Justice H.R. Khanna, who was part of the majority decision in the historic Kesavananda Bharati case, laying down the basic structure doctrine and had also rendered the historic minority decision in ADM Jabalpur case even though the majority view sadly held otherwise. There were a host of learned Judges in various High Courts, who gave pro freedom verdicts in habeas Corpus matters of political detenues, during emergency period. At the end of the day, in adversarial system, only a proficient and independent Bar can assist the Bench in arriving at correct and just decisions. So, I would firmly say that the last bastion of civil liberties and freedoms determined by the judicature is the enlightened and independent Bar.

Having said that, I would go further and propose that the historic parliamentary election in March 1977 and various key elections thereafter would categorically go to show that the last bastion of our freedoms and constitutional democracy is none other than the most backward, dispossessed and deprived sections of our citizenry. They appear to have firmly retained and embedded in their subconscious and unconscious psyche, the resolve and pledge of “We, the People of India” adumbrated in our Constitution. But each one of us have to imbibe the inner fire and zeal of our freedom fighters and martyrs who sacrificed and fought for our country’s freedom.

As regards the third part of your question, we can note from some of the significant public discourses and even recent observations of the Apex Court, that there may have been some let up in judicial vigilance in cases affecting liberties in UAPA, Money laundering cases, etc. Some of the recent verdicts of the Apex Court are clear pointers to a pro-active course correction in such matters, giving necessary guidance to various Constitutional Courts and the District Judiciary. A vigilant and independent Bar is highly necessary in that regard.

Q. Dr.B.R.Ambedkar envisioned social democracy as a way of life founded on liberty, equality, and fraternity, warning that without it, political democracy that we have built labouriously could crumble. Has our judiciary been instrumental in advancing this vision of social democracy? In your opinion, how far are we from achieving this goal, and what challenges remain on this voyage?

You are right in your observation about Dr. B.R. Ambedkar. While developing ideas of constitutional theory and democracy, he proposed in “Annihilation of caste” that a society based on liberty, equality and fraternity is another name for democracy and that democracy is not merely a form of government, but is primarily a mode of associated living, of conjoint communicated experience. It is an attitude of respect and reverence towards fellowmen. He propounded that liberty, equality and fraternity are not to be treated as separate items of a trinity and they form a union of trinity and to divorce one from other is to defeat the very purpose of democracy. He also proposed that democracy consists of the trinity of political democracy, social democracy and economic democracy. He equally asserted that justice is to comprise of the trinity of political justice, social justice and economic justice as enunciated in the preamble to our Constitution. These three trinities consisting of the union of equality, liberty and fraternity, along with the trinitarian elements of justice and democracy should go hand in hand and in tandem so as to meet the objective of the right balance and harmony between fundamental rights and the directive principles. These are not mere utopian ideas. To the skeptics and critics, our constitutional objectives may seem to dwell in the realm of the unattainable. Yet our constitutional founding mothers and fathers remind us that the art of constitutionalism and democracy lie in the daring to challenge the impossible driven by our deep unquenchable thirst for the infinite that defines our humanity. The only alternative to success in our constitutional democracy is nothing but deprivation and dispossession of the millions of the vast majority of our people, at the altar of the so called “progress” of a few leading to catastrophic consequences. Attainment of freedom from imperial yoke by non-violent means, then appeared to be an impossibility. But our national leaders with their perseverance, could achieve it.

It was during the days of Mandal agitation and hearing of the Mandal case, that I started some readings on social justice and social democracy, by eminent thinkers like Dr. Ram Manohar Lohia and much later, of Dr. B.R. Ambedkar. Most of the leading case laws of our constitutional courts up to the 1980s were in relation to fundamental rights and liberties, touching upon political democracy. Thereafter, with the advent of social action litigation in the eighties and the Mandal cases in the early nineties, we have made significant developments in the realm of social democracy and social justice. This is more so, now, as there is overall unanimity in the various shades of our socio-political spectrum, about the relevance of Dr. Ambedkar’s socio-political and economic philosophy, in the times to come. No doubt, we shall have to make substantial strides in political democracy and social democracy. But we have not given much attention to the idea of economic democracy, which is larger and wider vision than conventional statist or socialistic ideas that have hitherto been practiced in various parts of the world. I feel that it is high time for the various stakeholders in our polity and economy to seriously ponder over Babasaheb’s ideas on economic democracy. After all, most of the people may not be aware that Dr.Ambedkar was an expert in Economics and had taken two doctoral degrees in Economics from London School of Economics, UK and the Columbia University, USA on complex issues of national and international economy.

The future action that we must strive to achieve in our society, polity and economy should be the radical conveyance between the vision of Bappu, the Mahatma and the ideas of Babasaheb, the architect of our Constitution. A synergetic convergence between these two visions have not taken place to the requisite level, keeping in mind the serious problems faced by the deprived and dispossessed. Apart from political democracy (which is democratization of the polity) and social democracy (which is democratization of the society), we emergently need requisite economic democracy (which is democratization of our economy).

The Supreme Court has categorically held in landmark decisions that the right balance between fundamental rights and directive principles of state policy, is also an inseparable part of the basic structure of the Constitution. Here, our constitutional courts, initially have rightly shown restraint and caution in adjudicating economic matters, as it may have overlapping areas on the policy domain. Courts normally, proceed with caution in spite of proportionality principles, as we are in the infancy stage in such aspects. We could gain quite a lot if we examine other jurisdictions like South African Constitutional Court, European Court at Luxemburg, some of the leading Latin American countries, etc., regarding jurisprudential developments in socio-economic rights.

But I am sure that gradually and imperceptibly, our constitutional courts will develop the right jurisprudential tools in tackling many complex issues in the times to come. At this stage, the responsibility lies primarily with the polity, executive, legislature and other related institutions, including local bodies, statutory bodies invested with powers in socio-economic matters and even the co-operative institutions. It is here that we have to see the prophetic vision of the great Indian jurist, Prof. Upendra Baxi, who has conceived the idea of “demosprudence” as the process of democratic adjudication and co-governance of the nation. It will be challenging and exciting times for various stake holders, including judiciary and the citizenry in this larger constitutional game of co-governance.

Q. Your approach to the bench has been widely praised for its compassion and relief-oriented mindset, where you ensure that the litigants’ sufferings are alleviated even when their cases might not be presented perfectly. Even when a representation is disposed of for reconsideration it was done with substantiated reasoning. How do you strike a balance between being empathetic and maintaining the legal rigor to move by the rule book? Would you like to share an example of a case where you had to navigate this balance?

The right balance of theoria and praxis can substantially aid a Judge in ensuring not only empathetic approach to the sufferings of the litigants with the rigor to go by the procedural and substantive laws. If empathy with the suffering is divorced from this professional rigor, then it will lead to serious problems in our adjudicatory process. My experience is that if one has the determination to achieve both these objectives of empathy and rigor, then it is not very difficult to develop it on a case-to-case basis. Logical thinking and intuitive approach also may have to go hand in hand. As viewed by Dr. Iain McGilchrist, the renowned Psychiatrist, Neuroscientist and Philosopher, we should constantly aim to have the harmony between the left hemisphere and right hemisphere of the brain.

Q. Echoed by many in the legal community, your affable nature, consideration, and dedication to nurturing young lawyers have fostered a welcoming and educational environment in your courtroom. How critical do you consider this mentorship for the future of the legal profession, and what is your perspective on the strength of the Bar? Given your belief that the Bar, rather than the judiciary, is the last bastion of Indian democracy, what underlies this conviction?

One of the striking features of the Bar in our State and in the High Court, is that due to various socio-economic reasons, we have not developed the law firm culture, and we still have the traditional bar. But, at least, after the 2000’s, we generally, see the breakup of big law chambers of senior practitioners and junior lawyers stay with a senior practitioner hardly for a year as so: It is not uncommon to see an independent practitioner with 2-5 years of standing, having juniors. The majority of the law offices may be in this manner. This has seriously affected the tutelage and experience that a junior lawyer used to get on account of 8-10 years of association with a senior practitioner. Of course, times are different, and we cannot expect junior lawyers to work with low remuneration. But we have to seriously address the lack of tutelage in the present system. Judges can take a proactive role in this regard and efforts should be to equip the juniors to bridge over these deficiencies. We have to bear in mind that a proficient bar is highly necessary in our legal system.

Q. As the new chairperson of the Kerala State Human Rights Commission, what are your main priorities for advancing human rights, and how do you plan to increase public awareness and ensure better access to justice for vulnerable and marginalized communities?

One of the prime areas that may need more focus, is for the human Rights Commission to promote and undertake research in the field of human rights. There are serious issues of funding and lack of research personnel. In the short term, one should focus on research activities to be undertaken by the Commission along with universities and academic institutions. Another prime area of attention should be development of mechanisms to renew the safeguards provided by the laws and the Constitution for protection of human rights. Spreading public awareness of human rights and encouragement of efforts of
non-governmental bodies in the field of human rights, should also be focused.

Q. Your family has been a consistent source of support throughout your career. How has their support influenced your professional journey?

I have come to realise in the six decades of living that life is essentially a bundle of relationship and ordinarily, the most enduring one is family relationship. My wife, Suma was well qualified and meritorious to secure employment or opt for research. But she sacrificed her ambitions to take care of the family. The strong and enduring support given by her, was one of the prime factors in the growth of my professional career. The love and support given by my sons, Kevin, Kenny and Kim and my daughter-in-law Meera also tremendously helped me.