6. In the Federal Republic of Germany: Article 103(1) of the Constitution provides “Every individual has a right to a fair hearing before a court”. Code of Criminal Procedure Para 137 provides that in criminal proceedings the accused has the right to be represented by a lawyer of his own choice. Code of Criminal Procedure paras 140, 141, 145 provide that in important cases, the services of a lawyer is imperative and if none is chosen, the President of the court appoints one. Para 149 provides that the close relatives such as the wife or husband or other relatives should be admitted during the proceedings. Para.338(5) provides that non-appearance of a defence counsel is a good ground for setting aside the conviction. If there was no fair hearing, the conviction will be set aside by the Federal constitutional court on that ground alone, apart from the merits of the case.

7. in Italy: Art. 24 of the Constitution guarantees the right of defence and freedom of appeal to higher tribunals by a lawyer and in serious cases if the accused does not engage a lawyer, the court will engage one and lawyers accept the engagement and conduct of the proceedings free of remuneration as part of their duty to that court. Non-appearance of a lawyer for the accused in such cases makes the proceedings void. Article 24(3) provides that “Indigent persons are assured through suitable institutions the means of conducting pro­ceedings and defending themselves in any jurisdiction”. There are institutions regulated by the State which offer legal assistance to poor accused. In large cities there are associations of lawyers for free legal assistance to the poor parties, senior lawyers undertaking the work with the instinct of helping the poor and juniors undertaking the work with the idea of gaining experience in practice of law.

8. In the U.S.S.R. these rights do not appear to have been recognized. The subordinate criminal judiciary do not seem to be an independent judi­ciary; the appointments are made by the procurator. Article 50 of the Indian Constitution provides for the separation of the judiciary from the executive, so that the judiciary should be uninfluenced by the executive in any manner. It is difficult to understand how an accused can have a fair trial from a magistrate who owns his position to a procurator. A lawyer has no place in the pre-trisil proceedings; accused is left to himself in the early stages of the proceedings. A lawyer can appear only during trial and that at the hearing stage when the court has already come to a decision about the matter pending. Even during trial, lawyer can appear only if the prosecutor appears; courts can conduct preceedings in the absence of both parties. According to the Indian Law, the evidence can be taken only in the presence of the accused, otherwise the evidence is inadmissible. Even during trial, proceedings in court can be conducted secretly. Under Section 352 of the Indian Criminal Procedure Code, trials had to be conducted in public. Article 76 of the Republic of China makes it imperative that proceedings shall be in public. The presiding judge can refuse to allow a particular counsel from appearing for an accused, so that the right of the accused to have a lawyer of his own choice is denied. Sentence by order i. e. the party secretary instructing the judges as to the judgment to be pronounced, the extent of punishment to be awarded and the judge acting up to that direction appears to be a normal feature. “Sentence ex post facto” i.e. the sentenceand execution of the sentence preceding the trial and conviction is followed in some cases.

9. It is hoped that those States in which there are no adequate provisions for safe-guarding a fair trial of accused in criminal proceedings, adequate provisions will be made and those States in which there are provisions which curtail the rights of accused, will repeal those provisions.

CRIMINAL LAW IN SOVIET UNION

V.A. Abdul Azeez, B.A., B.L., Legal Assistant, Kerala Law Secretariat

Once it was believed that there is no legal system in U.S.S.R., the country is ruled by terror, the only principle of order being that of hierarchical subordination. This has proved to be a dangerous delusion. The iron curtain has been lifted. Delegations of lawyers flew to Moscow from India and other Asian countries. Now the fact cannot be denied that the Soviets do have a legal system based on very definite principles of law and justice.

Criminal law is a means whereby the State may act officially to exert discipline on the people. In U. S. S. R., the State is interested not only in protecting the community against wrong doers, but also in training the people to be responsible citizens. The State itself officially undertakes the responsibility of the education of its future citizens. Society is conceived to be a single great family-rather a gigantic school.

The Criminal Law of U. S. S. R. has much in common with the Western conceptions of crime and punishment. But much has been added in recent years. That is inevitable for a planned economic order. To understand a people’s law, one must also study their social background. A study of Russian literature and history will go a long way to help one to understand this background. The fundamental difference between a religious and social conception of crime is well expressed in the Novels of Dostoevsky and Tolstoy.

Socialism involves an extension of the domain of criminal law to new areas. Socialist property has to be protected Negligence and willful misconduct of State Business have to be prevented and punished. For this new economic crimes are devised to protect the State against deviations from the fundamental principles of the established order. Breaches of planning discipline are severely dealt with.

The Soviet Criminal Procedure resembles the English method in providing for a bi-lateral hearing, the right of confrontation of witnesses and judgment based on rational proofs. Parties can represent by lawyers. The option is with the party to go in appeal over the decisions of a lower court. In criminal cases, if the accused refuses to have a lawyer, the prosecution is not allowed to be represented by either. In such cases, the court itself conducts the trial. The Soviets give much importance on pre-trial investigation. In the preliminary examination, the examining. Magistrate interrogates the accused and the witnesses. The indictment is prepared only after this examination.

Verdicts are always based on relevant evidence only. The Judge plays an active part in interrogating the defendant and the witnesses on both sides. The prosecutor and the defence counsel question the witnesses. The defendant may also put questions personally at any time during the trial. Clarification ofthe entire situation in the mind of the accused as well as in the records of the investigation is achieved by the preliminary investigation. The whole history of the accused is investigated including his past misconduct. The examiner will have to find answer for several questions- whether the crime took place under coercion, threat or by reason of economic strain? Was the alleged offender in a state of destitution or influenced by personal or family conditions? It is not simply the offensive act that is to be punished or exonerated, but the man himself.

The rights of the accused will be clarified to him and he will be always protected by the court from the consequences of his ignorance. The fact that the convicted person is dead does not prevent an appeal, if newly discovered circumstances can rehabilitate his reputation. Public censure and money censure are imposed as a penalty on an accused person.

A delegation of Indian lawyers who visited Russia some years back have given the working details of the Soviet legal system. There is a misconception among the people of other countries that in Soviet Union there is very little codified law and the whimsical directions of the executive generally prevail in the judgments of courts. But it is a fact that laws in Soviet Union are simple, comprehensive and codified. It is said that there are nearly 1,500 lawyers in Moscow, and in the Supreme Court there 350 lawyers. Thirty per cent of them are women. Instead of the Bar Council, they have the Collegium. For enrolment, one must get a certificate from this Collegium. Apprentice period is six months. All juniors are assured of a minimum income and it is the duty of the Collegium to look after this. Clients are at liberty to choose their own lawyers. Payments are made directly.

Cases of hooliganism are common. It generally occurs out of heavy drinks. There is a positive effort by Government to discourage drinking. Theft as an offence is very rare. Cases of divorce are numerous, but Government discourages divorce for the well-being of future generations.

A former Chief Justice of U.S.S.R. once remarked. ‘‘The important function of a Socialist State is the fundamental remarking of the conscience of the people and graft upon them higher and nobler feelings”.

In Soviet Russia, the whole man is dealt with in a Criminal procedure, just as a teacher or parent deals with a child. Soviet law is built on the foundations of a new concept not merely of society and the State, but also of man himself.

'Amicus' Missed the Bus!

(By N. Dharmadan, B.Sc., M.L.)

Normally when a court of justice is in doubt in a matter of law any counsel in whom the court has high esteem will be called upon to help the court. The counsel undertakes the job out of regard for the court and endeavors to present the best. Invariably the court gives glowing tributes to the amicus curiae for the performance at the end of the case. But the 'Amicus' appeared in Kerala Law Times does not deserve it. (refer to Article by 'Amicus' in 1980 K.LT 67 Journal). He has not endeavoured to present the best. The performance of the 'Amicus' appears to be haphazard and incomplete.

The ruling given by Mr. Justice Khalid in Manuel v. Thomas reported in 1980 KLT. 283 was branded by 'Amicus' as a "patent nullity having no legal existence or binding force". Had he attempted an exhaustive study on the subject I am sure he would not have come to this conclusion.

The facts of the case in which 'Amicus' appeared' are simple. In an appeal to be disposed of by a Division Bench, pending before the High Court, the respondent took objection regarding the court fee paid by the appellant and that matter came up before the single judge in the ordinary course. After hearing all parties concerned, including the government pleader, the court passed order, finding that court fees already paid by the appellant is not correct, granting sufficient time for payment of proper court fee. This is a case squarely coming within S. 149 read with CI. (2) of S. 107 and Order 7 Rule 11 CPC. and the judge has. ample power to pass such orders (AIR. 1951 All. 64 (F. B.) AIR. 1977 Punjab 248).

The main plank of the argument of 'Amicus' to attack this judgment is that S. 11 of the Kerala Court Fees and Suit Valuation Act 1959 applies in this case and the learned judge failed to advert to it. According to him "no judge has jurisdiction to take it up and determine it outside of S. 11 of the Court Fees Act in the High Court." He also argues that the view of the learned judge that the disputed court fee question is an interlocutory matter"appears to be clearly incorrect".

The disputed court fee question in a pending appeal can only be a matter incidental and ancillary to the main appeal and any pronouncement in respect of the same can only have the character of an interlocutory order. One cannot treat the court fee question in a pending appeal and the subject matter therein as two separate unconnected matters to be dealt with independently. Without considering the subject matter and valuing the same according to law nobody can take a correct decision regarding the proper court fee payable in respect of the same. The Supreme Court has repeatedly said that court's duty is not to exaggrate the efficacy of procedural or other defects. ((1976) 3 SCC. 607) The duty of the courts is to take a pragmatic view of the matter and do justice to the parties. There is no justification for any technical pleas for defeating just claims of citizen ((1979) 1 SLR. 757 (SC))

A more fundamental flaw committed by the 'Amicus' in this matter is with regard to his argument based on S 11 of the Kerala Court-fees and Suit Valuation Act. On a plain reading of the section it is very clear that this section has no application in a pending appeal. That section applies only when a 'suit' has been filed before the High Court and a difference arises between the ta'xing officer and the party regarding the proper court fee to be paid it can be decided by the taxing officer or if he thinks that the question is of general importance it can be referred to the Chief Justice or such judge of the High Court as the Chief Justice shall appoint In this case that stage is over and there is no difference between the taxing officer of the High Court and the party so as to attract the provisions of S. 11 of the Act Here the difference is between the parties in the pending appeal and it will have to be decided by the Judge of the High Court and the Civil Procedure Code, provides for the same. Even if there is no provision the judge can deal with the matter for there is a catena of decisions both of the Prevy Council (1942 PC. 189) and Supreme Court (1962 SC. 527) to the effect that High Court has also inherent power to deal with any matters which are not specifically provided for in the statute in the. interest of justice. The High Court has very wide powers to enlarge time for payment of proper court fees.(1960 AP. 590) To say that the High Court has no power to deal with questions of deficit court fees in a pending appeal is very strange and rather astonishing.

Admitting for argument sake that the entire reasoning of 'Amicus' is correct the pertinent question to be asked is whether the decision of the single judge of the High Court on a matter involving deficit court fee without observing the procedural formality or without authority of law is a nullity having no legal existence at all and can be ignored?

This is answered and dealt with in clear terms by H.W.R. Wade in the following passage (Administrative Law by Wade 4th Edn. Page 287)

"In one class of cases there is a long-standing doctrine that collateral challenge is not to be allowed; where there is some unknown flaw in the appointment or authority of some officer or judge. The acts of the officer or judge may be held to be valid in law even though his own appointment is invalid and in truth he has no legal power at all. The J logic of annulling all his acts has to yield to the desirability of upholding them where he has acted in the office under a general supposition of his competence to do so. In such a case he is called an officer or judge de facto, as opposed to an officer or judge de jure "

This principle has a long history and it has been applied by House of Lords as early as in 1851.(Scadding V. Lorant. (1851) 3 HLC. 418) though the courts in England were taking a different view for some time recently they have changed this trend. The prevailing view is that unless and untill a determination of a court or tribunal is set asideit will be good since it bears no brand of invalidity on its forehead (Page 77 Lord Denning's. The Discipline of Law)

It is true that in certain cases there is the possibility of creating a dilemma when an authority in excess or error of jurisdiction directs an illegal act. Then the question will be as to whether the citizen should suffer it until upturned in a legal proceeding. This is a also answered by a learned author (Rubinstein-Jurisdiction and Illegality Page 205) in the following manner. "It is not an instrument with a bit of wax and the seal of a court put on it; it is not an instrument with the signature of a person calling himself a registrar; it is not such a quantity of ink bestowed upon such a quantity of stamped paper; a sentence is a Judicial determination of a cause agitated between real parties, upon which a real interest has been settled". Even if the defects go to the root of the matter it will not knock down the order with nullity. ((1978)3 WLR.1) 'An order, although void in law, remains for many purposes effective and operative until it is challenged and its invalidity is declared by a competent body or court.(1979 K.LT. 845; 1971 KLT, 646; 1970 KLT. 430) Thus an order which is unauthorized by law is null and void, but it continues to operate against the person against whom it was made'. It remains valid and operative till it is set aside by a court or competent authority. The void decision is only voidable. According to Mr. Justice Krishna Iyer in this branch of jurisprudence there is a legal chaos and it should be avoided by evolving simpler concepts by the Legislature ((1974) 2 SCC. 121). But this decision has been severly criticised by Sri. M. P. Singh, Reader in law, University of Delhi. ((1979) 2 SCC. 1 (Journal))

So far as Kerala High Court is concerned there is no legal chaos, in this branch of jurisprudence. Three important decisions of this court on the subject have laid down the law in clear terms beyond any doubt. 'Amicus' has missed these decisions when he has stated that the decision of Mr. Justice Khalid in the above case is still born having no legal existence or binding force. He has really missed the bus led is not entitled to any glowing tribute from anybody.

Farewell to Mr. Justice N.D.P. Namboodiripad

Justice N.D.P. Namboodiripad has retired after conspicuously serving in the High Court of Kerala from 1972 onwards, leaving behind a splendid record of work. His rich and varied experience as an advocate, a member of the Legislative Council, as a District Judge, Law Secretary of Kerala State and of the Central Government, as Chairman of the Salestax and Agrl. Incometax Appellate Tribunal and as Chairman of Foreign Exchange Appellate Board, rendering signal service, enabled him to be a successful and able Judge of our High Court. His judgments reveal his analytic faculty and great learning and at the same time serve as models of clarity and brevity in expression, and precision in discussion. They flow in logical sequence and are compact and complete, carrying no immaterial discussions and losing no weight-through grammatical leaks or rhetorical cracks or hazy obscurity. He was a judge who sought to discover and to formulate principles rather than to build upon precedents. He displayed a strength of decision of a rare type. Being naturally quick in grasp and decision and rather impatient of long-winded arguments and repetitious advocacy, sometimes he showed a certain amount of restiveness and cold exterior with disciplined control, solely arising from his passion for justice and truth unshackled by technicalities of procedure. He has a bold and blunt way of stating what he felt but without any offensiveness or venom or ill-feeling. He is essentially large-hearted and spontaneous with outspoken mind, forthright sincerity and freshness of outlook. Unassuming and simple in habits, his attitude as a Judge was always honest and reflected considerable anxiety to decide cases justly and correctly without fear or favour. With his retirement Kerala High Court loses one of the ablest Judges. In bidding him our respectful farewell we convey to him our wishes for long life, happiness and prosperity.

"Alarming Arrears"

(P.V. Aiyappan, Advocate, Ernakulam)

1. The other day, the Union Law Minister, Shri Shiv Sankar revealed in the Lokh Sabha that more than 36,000 cases are awaiting their fate in the Supreme Court, but did not disclose the alarming Dockets in the High Courts. Fortunately, the Law Minister is an Ex-High Court Judge, yet he was not able to tackle this problem of accumulation of cases in various courts because he has -miserably failed to diagnose the disease and to prescribe the remedy. There is no use of bewailing over the sad state of affairs obtaining in the various High Courts in India and subordinate Courts. The decision reported in 1978 SCC. (Criminal) Page 23 onwards "Hassainera Khatoon v. Home Secretary, State of Bihar, proclaims the urgent necessity of salvaging human life, and liberty by adopting efficacious remedies. It would appear "that almost all the States are unconcerned with the administration of justice, for, according to them, law will take its own course and take care of itself. This marks the beginning of the end of "Rule and Law" zealously guarded by-our Constitution. The alarming and astonishing arrears in courts is not commendable to the judiciary as a whole, because so many suffer by waiting for the verdicts.

2. Informed sources suggest, increasing the number of judges in every High Court, to cope with the situation but the only difficulty the Government feels is the problem of accommodation. According to me it is an unwise suggestion. This malady cannot be cured by increasing the number of judges. The courts in India, want efficient judges with remarkable legal equipments and proven ability as of old but in the present method of recruitment, and conditions of service, efficiency, ability and equipments are casualties. At present, the qualification for the appointment of High Court Judges is laid down in Article 217 of the Constitution. In the said Article 10 years' Judicial service or ten years' practice as an advocate in any High Court alone is the qualification prescribed for appointment of High Court Judges. The total absence of an efficiency test is accountable for the deplorable state, obtaining in almost every High Court in India. Sri. Sivasankar, because he was also an High Court Judge, is incapable of suggesting an efficacious panacea for this incurable disease of deterioration in quality of the judges recruited under Article 217 of the Constitution I am aware of the, limitations of a citizen to entrench more upon the High Court and the judges presiding over it, for every High Court in India, is court of record under Article 215 of the Constitution.

3. Instead of the present method of recruitment, why not the Central Government try to secure the services of renowned jurists and legal luminaries to adorn the High Courts, of course, after introducing drastic changes in their conditions of service and emoluments, by setting up a "Recruitment Council" consisting of at least three or more Supreme Court Judges with unquestionable integrity to make recommendation to the President of India direct for appointment, without routing through the Chief Justice of the respective High Court and the Governor through Government and Law Ministry to Chief Justice of Supreme Court. Since politics play an important role in government level, the would be judges would have to sacrifice their dignity and self respect sometimes in waiting at the doors of politicians and other influential persons—a deplorable state of affairs—for those who have got an iota of self respect in them. Could we expect an impartial and independent judiciary if the present-set up for recruitment of judges is allowed to continue? Rule of Law is the Guardian Angel of Democracy and an Independent and fearless judiciary could only safeguard the "Rule of Law" and in a democratic set up, these are indispensables. The Law Minister, since he is an Ex-High Court Judge, will be more zealous in safeguarding the independence, and efficiency of the Indian Judiciary and with that idea in view, I expect him to suggest suitable amendments to the Constitution by deleting the present Articles governing the appointment of judges and by introducing suitable Articles enabling the establishment of a "Recruiting Council" from among the Supreme Court Judges, so that efficiency, ability and common sense in abundance alone should, be the criterion for appointment of Judges both in High Courts and Supreme Court. If extraneous considerations and nepotisom make their entry into the recruitment, the sacred precinct of court hall will give free entry to politics and favouritism, too poignant an enemy to the judicial independence and a sad day for the Indian judiciary.