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.

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.

x                               x                         x                            x

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!

DAMAGES AND GINGER BEER

(T. G. John, Advocate, Trichur)

There is nothing spreeish, crass, or scurrilous in a person stepping into a wayside cafeteria or a provision, store on a hot, stuffy evening and ordering for a bottle of ginger beer. And as he sits on the wire-legged stool watching the waiter dip the bottle and pour out for him the drink that will quench his thirst, and cheer him but not inebriate, he does not care two hoots whether, that particular bottle is opaque or otherwise. However things did not move so smoothly years ago, somewhere in England when a similar bottle of ginger beer was ordered for. For to the utter horror of the customer it was found in the bottle, couched in the lees of the drink the decomposed remains of a snail. From that moment began a controversy which consummated in the celebrated case Donoghue v. Stevenson (M'Alister v. Stevenson) or more familiarly known as the snail-in-the-bottle case, which is an important landmark in the history of English law of damages and incidentally on the question whether an action lies for nervous shock and if so under what circumstances.

Taking a cursory glance at the English authorities on this branch of law, one of the earliest cases is Victorian Railways Commissioners v. Coultas (1888). In that case the buggy of the plaintiffs, a husband and wife, was nearly but not quite run over by a passing train at a level crossing and it was held that the resulting shock and illness was damage which was too remote and hence not recoverable. The above Privy Council decision contains the following dictum: "In every case where an accident caused by negligence had given a person a serious nervous shock, there might be a claim for damages on account of mental injury. The difficulty which now often exists in case of alleged physical injuries of determining whether they were caused by the negligent act would be greatly increased and a wide field opened for imaginary claims". The reasoning seems to be that if one were to arrive at a different conclusion it will open wide the gates of imaginary claims and frivolous litigations.

The view which was not popular even in England gradually gave way by the pronouncement of Kennedy J. in Dulieu v. White & Sons (1901). The plaintiff who was in the family way was behind the bar of her husband's public house. The defendants by their servants negligently drove a horse carriage into the public house and the plaintiff prematurely gave birth to a child and became ill also. Kennedy. J. laid down two propositions, which as stated by Mr. K. Venkoba Rao in "Conundrum presented by shock cases", have become the starting point for discussions on the subject namely that unless the plaintiff is within the area of physical danger, he cannot recover damages for nervous shock and secondly .if a man is killed by the negligence of the defendants in sight of plaintiff and the plaintiff becomes ill, the damage is too remote a consequence of the negligence.

The case of Hambrook v. Siok.s Brothers (1925) is the next important step in the tumultuous march of English case law in this subject. The defendants' servant left a motor lorry at the top of a steep and narrow street u--attended with the engine running and without taking proper precautions to secure it. The lorry started off by itself and ran violently down the incline. Plaintiff's wife who had been walking up the street with her children had left them a little below a point where the street made a bond when she saw the lorry rushing down the bend towards her. She became frightened for the safety of her children whom she knew must have met the lorry in its course. A bystander informed her that a child answering to the description of one of hers had been injured. In consequence of her fright and anxiety, she suffered a nervous shock which eventually caused her death. The action was filed by her husband under the Fatal Accident Act. Bankes and Atkin L. JJ. (Sargant L. J. dissenting) held that on the assumption that shock was caused by what the woman saw with her own eyes as distinguished from what she was told by the bystanders, she was entitled to recover notwithstanding that the shock was brought by fear for her children's safety and not by fear for her own. Atkin L. J. made the following observation; "The legal effects of injury by shock have undoubtedly develop ed in the last 30 or 40 years. At one time the theory was held that damages at law could not be proved in respect of personal injuries, unless there was some injury which was variously called 'bodily' or 'physical' but which necessarily excluded an injury which was only 'mental'. There can be no doubt, at the present day, that this theory is wrong."

Chronologically, in the chain of English Shock Cases, Donoghue v. Stevensun (1932) fits in here. "In that case a manufacturer or ginger beer sold his ginger beer in opaque bottles. A snail had crept into one of the bottles which the manufacturer filled and corked up without noticing the presence of the snail which could not be seen as the bot*le was opaque. It was held that the manufacturer was liable for the injury caused to the retailer's customer who ultimately drank, the contents of the bottle". (Facts as digested in Halsbury's Laws of England, Second Edition, Volume 10). The plaintiff in this case suffered from shock and gastroenteritis. In a suit by the plaintiff to recover damages it was held that the defendants were liable.

The two important pronouncements of the post-Donoghue period are Hay v. Young (1943) and King v. Philips (1953) I All E. Reports 617. In the former case a woman who was in the family way suffered from fright and shock on account of notice produced by the collision between a motor cycle and a motor car. A month later she delivered a still born child In as much as she did not see the accident, standing about 45 feet from the point of impact and she being not within the area of potential danger and the duty of the motor cyclist being to drive with such reasonable care as would avoid risk of injury to such persons as he could reasonably foresee, the House of Lords held that she was not entitled to recover In King v. Philips (1953) a taxi driver negligently backed his cab without looking where he was going and ran into a small boy on a tricycle. His mother who was in her house seventy or eighty yards away, heard him scream and looking out of the window, saw his peril. She suffered nervous shock. It was held that the shock was too remote to be ahead of damage. "The court of appeal affirming the decision of Mc. Nair J, held that the defendant was under no liability to the mother. Singleton L. J. approved of the observations of Atkin, L. J, in Hambrook y. Stokes but he thought that the case was distinguishable because there the mother was on the highway and not up a side street as in the present case. Denning L. J thought that Hambrook v. Stokes was not overruled by Hay v- Young and that the two decisions should be reconciled. The learned Lord Justice distinguished Hambrook v. Stokes on the ground that the slow backing of the taxicab was very different from the terrifying descent of the runaway lorry. The taxi cab driver could not reasonably be expected to have foreseen that his backing would terrify a mother 70 yards away whereas the lorry driver ought to have foreseen that a runaway lorry might seriously shock the mother of children in the danger area. Denning L. J., summed up the effect of care law on the subject thus: Wife or mother who suffers shock on being told of an accident to a loved one cannot recover damages from the negligent party on that account. Nor can a bystander who suffers shock by witnessing an accident from a safe distance. But if the bystander is a mother who suffers from shock by hearing or seeing with her own unaided senses that her child is in peril that she may be able to recover from the negligent party even though she was in no personal danger herself. Hodson L. J, rested his decision on the ground that in the absence of admission of negligence in Hambrook v. Stockes, Lord Thankorten, would not have approved of it in Hay v. Young (Venkoba Rao-Coundrum presented by Shock Cases).

The Indian Case-Law on the point is very sparse and sporadic. In Governor-General in Council v. Surajmal Esarka (A. I. R. 1949Nagpur 256) there was a very minor accident on the railway; a sentinel coach in which the plaintiff was travelling callided with a stationary goods train. Ail that occurred was that the cow-catcher of the coach got entangled with the couplings of the last wagon of the goods trian and was slightly broken. The plaintiff's eye and thigh were bruised and he had a slight scratch on the right foot. Bose J. observed: "Now it may be conceded that a person of normal fortitude might suffer slightly from shock in these circumstances. Now as far as the general damages go we are not able to interfere because mental pain and so forth are not matters which can be gauged in terms of money or money’s worth. We concede that the circumstances are such that a normal man might suffer from a slight temporary shock. He would be entitled for compensation for such suffering. What that should be is a matter on which men will differ widely. Accordingly following the usual practice we do not intend to interfere". Earlier after referring to Victorian Railways Commissioners v. Coultas His Lordship observed:" even if we do not apply the restricted rule laid down by Their Lordships we decline to open wide the flood gates to special and exceptional cases, many of which rest on the border line of the imaginary . The law and particularly a law of this kind must be founded on firm commonsense where ordinary reasonable men, with normal healthy constitutions and of normal fortitude and courage deal with each other".

The next noteworthy case is Mrs. Halliguav. Mohansundaram (1951, II M. L. J. 47l). The plaintiff and her husband who is a well to do merchant and landlord at Cochin and belonging to the community of Cochin Jews came on a four day visit to Madras They engaged the first defendant's taxi and the taxi driver after driving to the Caltex petrol bunk next to Messrs Lawrence and Maye, Ltd. on the Mount Road and after filling up the petrol was crossing the road to Bosoitos when a tram car proceeding towards the Mylapore side collided with the taxi and smashed up the front portion of the car. Mrs. Halligua immediately after collision was seized by what appears to have been a very severe pain in her arms and hands. It was only after a period of five months that she was able to use her arms and ringers. Even then she was unable to bend her right little finger which according to medical evidence was likely to be a permanent deformity. In an action laid by the plaintiff against the taxi owner who in his turn impleaded the Insurance Company as second defendant, for damages for bodily injury, pain and mental shock the defendants were held liable. Mack J. after referring to the view of Atkin L.J. in Hambrook v. Stokes Brothers observes: "With great respect I have no hesitation in following the view of Atkin, L.J................I fully appreciate the difficulty in estimating^; damages claimed by reason of shock............It is not possible to lay down any hard and fast rule and each case has to be dealt with on its own merits. I think the trend of English Case law having exploded the old view that damages cannot be claimed on the basis of nervous shock attributable to negligence, Indian Case Law based on old English decisions should in this domain of law have a similar orientation".

For a judicious summing up of Indian Case Law on this point we have yet to wait and see the march-past of judicial consensus for some more time.