On Boycotting Courts

(T.G. John, Advocate, Trichur)

On 23rd of July 1924 the members of the Calcutta Bar retired to their library and held a meeting within closed doors and decided to approach the Hon. Sir Lancelot Sanderson, K.C. Chief Justice of Bengal with the followingrepresentation.

My lord—

"The members of the Calcutta Bar regret to bring to your Lordship's notice an unpleasant and undesirable incident which took place in the Court of the Hon Justice Page yesterday. Mr. Sarat Chandra Bose, who was addressing the Court was not only shouted at in a most offensive way and was asked to sit down but when that order had been obeyed the learned Judge thumping the table with his clenched fists shouted at him "Leave the Court, leave the Court, leave the Court". The members of the Bar feel that to appear before the learned Judge is not consistent with their self-respect and if it were permissible they would have resolved not to appear in his Court at all'.

The term 'if it were permissible' gives us a good backlog for thought. The Calcutta Bar used the words 'if it were permissible' because the Calcutta High Court had held in Emperor v. Rajani Kanta Bose (Special Bench constituted-Sanderson C.J., Woodroffe and Mookerjee JJ) that "concerted action by a whole body of legal practitioners to boycott a judge or court in protest against an alleged wrong to one of its members or in respect of its conduct of the administration of justice generally, is not permissible because the Bar in any such case cannot constitute itself the authority to adjudge on such grievance and its duty is not to impede the administration of justice by collective abstention from Court but to make its representation through its Association to the High Court which has superintendence in such matters" (AIR. 1922 Calcutta 515).

Incidentally the question that arose in the reference was whether it was professional misconduct for a legal practitioner not to appear for a client for a particular hearing on the ground that the practitioners were staging a strike on that day by boycotting courts and the client loses the cause on account of such absence.

Sanderson C.J. observed 'No one is obliged to be alegal practitioner or to practise, but if he becomes a legal practitioner and holds himself out for and accepts employment, he becomes an officer in the judicial system in which his position, rights and duties and the authority to which he is subject are determined. A person may stand out of such a system, but if he enters he is bound by the rules and must submit to the authority to which that system subjects him.........it follows that a legal practitioner cannot join in anaction to boycott the Court or any particular judge of any grievance real or of a political or other character'.

It is to be observed that an advocate is more than an agent or servant of his client. He is also an officer of the Court and as such he owes the duty of good faith and honourable dealing to the Courts before which he practises his profession. The practice of the law is not a business open to all who wish to engage in it; it is a personal right or privilege limited to selected persons of good character and special qualifications; it is in the nature of a franchise from the state conferred only for merit and may be revoked whenever misconduct renders the practitioner holding the license unfit to be entrusted with the power and duties of his office.

Answering the above reference Sanderson J stated 'The pleader in question failed to perform his duty to appear for his client by joining a strike, one of the objects of which was to paralyse the administration of justice. Such conduct cannot and will not be permitted, whether it be on account of some alleged grievance in connection with the administration of Courts or in furtherance of some movement political or otherwise'.

Before our next boycott of Courts, let us as members of an honourable profession reexamine ourselves to find as to what is to be really done when contingencies arise.

The Process of Legislation

(C.J. Abraham, Registrar, High Court of Kerala Formerly Additional Secretary, Kerala Legislature)

This article is designed to give some idea about how statute laws are made. I have tried to describe it as simply as possible with a sense of brevity.

Necessity for making laws.

Law in relation to society is a bundle of rules and regulations laid down for the functioning of the society. Law so understood must reflect the" intellectual, ethical and spiritual values of society which it is designed to regulate. Law is modified from time to time ‘to make it conform to the broad prevailing sense of social values. The necessity for more and more legislation arises because the society wants so many changes now and then.

The sources of law.

There are two formal sources of law: Legislation and case law. Legislation means the creation of rules by the Legislature or some other body to which the power of making law has been delegated by the Legislature. Case law means the law created by the Judges through the process of deciding cases. The law of any land is principally made known by adjudication of cases and the enactment of legislation, In this article I propose to deal only with the laws made by the Legislature. In doing so I deal only with the Legislation sponsored by Government and not by private Members.

The sources of proposal for Legislation.

The proposal for Legislation can come from several sources. The proposal might have been part of the election policy of the party which has come to power and formed the Government. It may also be a matter of policy adopted by the Government after it has taken up the reins of the Government. It may as well be a proposal submitted by a department of the Government to the Minister in charge of the particular subject. It may also come from any private Member of the Legislature or from some outside organisation.

The various stages of action after the proposal for Legislation.

Governmental function is exercised through its various departments. If any one of these departments desires to have a new legislative measure or the modification or amendment of any existing law for its effective functioning or to deal with avenues which have not so far been exploited or to raise some new taxes, then the concerned department makes a proposal. When the proposal is made, the same will be examined and a policy decision will be taken whether such a legislation or modification of an existing law is required to be made If the policy decision is in favour of the proposal, the material papers are forwarded to the Law Department for drafting of the Bill. In the Law Department there are specialists in drafting over and above the specialists on the opinion side, the legislation side and the litigation side. When the proposal with the material papers are received in the Law Department, the concerned personnel in that department start on a detailed study of the subject. For information about the facts constituting the case to be dealt with by legislation, the draftsman naturally relies mainly on the department of the Executive government which is principally concerned with it. The officers of the department would supply the draftsman with necessary information or tell him where it is to be found or at least put him on the correct track of finding it. The draftsman must get himself fully equipped with information as to what the existing rule is, its history, development, its application and also the cases decided upon it. After collecting all the available materials on the subject and after studying all the aspects in detail, the drafting starts.

In making the draft Bill it has first to be ascertained whether the proposed legislation is within the Legislative competence of the Legislature concerned. It is also the duty of the Law Department to see whether the proposed legislation offends any of the constitutional provisions or any of the fundamental rights. It is also the lookout of the Law Department to ensure that there is no conflict between any existing law and the proposed law and in case there is conflict, to make suitable provisions to avoid the conflict. It is the special duty of the draftsman to express in appropriate legislative language the conclusions arrived at in introducing the measure. The draft so prepared by the Law Department is then given to the concerned department to see whether the draft contains all that they wanted. After discussion with the concerned department, the draft is revised once or twice or even more as is found necessary. When the final draft is prepared, it is forwarded from the Law Department to the concerned department for verification whether the provisions in the Bill suit their purpose. If something is wanting or if some additional provisions are also to be included, that department will make the requisite suggestions. After these suggestions and recommendations are considered and suitable modifications are carried out, the Law Department and the department which originated the proposal for legislation agree on the final draft and place the same before the Cabinet for its approval. If the Cabinet wants any modifications to the Bill by way of addition, deletion or amendment, then the draft will be sent back with the suggestions of the Cabinet. After carrying out these suggestions, the draft will again be placed before the Cabinet. After the Cabinet has finally approved the draft, the law department will send the Bill to the Assembly.

All legislative proposal must be brought before the Assembly in the form of Bills. Such a Bill should contain a statement of its objects and reasons. A Bill involving expenditure shall contain a Financial Memorandum inviting particular attention to the clauses involving expenditure and estimating the recurring and non-recurring expenditure involved in case the bill is passed into law. A Bill involving proposals for the delegation of legislative powers shall contain in addition a memorandum regarding Delegated Legislation. If the Bill is one intended to replace an Ordinance, a statement explaining the circumstances which had necessitated immediate legislation by Ordinance has also to be forwarded to the Assembly along with the Bill.

The Procedure after a Bill is received in the Assembly.

When a Bill is received in the Assembly the same is caused to be published in the Gazette under the orders of the Speaker. If the publication has been made prior to a motion for leave to introduce the Bill, then it shall not be necessary to move for leave to introduce the Bill and if the Bill is afterwards introduced, there shall be no necessity to publish it again. Each Bill undergoes three readings in the Assembly.

First reading.

This means the motion for leave to introduce a Bill or the introduction of a Bill already published. The Minister in charge of the Bill shall move a motion for leave to introduce the Bill. It is open to any member to oppose this motion. If the motion is opposed, the Speaker after permitting a breif explanatory statement from the Minister who moves the Bill and from the member who opposes the motion may, without further debate, put the question to the vote of the House and decide the motion in accordance with the result of the vote. If the House has voted in favour of the motion for leave to introduce the Bill, then the Bill stands introduced. This is the first reading of the Bill.

The Second Reading.

After the introduction of the Bill the Minister in charge may move one of the following motions namely:—

(1) that it be taken into consideration;

(2) that it be referred to a Select Committee or;

(3) that it be circulated for the purpose of eliciting opinion thereon.

When any of the above motions is moved, the principle of the Bill and its provisions are generally discussed. In case the Minister moves that the Bill be taken into consideration, any member may move as an amendment that the Bill be referred to a Select Committee or circulated for eliciting public opinion. If the Minister moves that the Bill be referred to a Select Committee any member may move as an amendment that the bill be circulated for eliciting opinion- thereon by a date to be specified in the motion.

Where a motion that the Bill be circulated for eliciting public opinion is carried and the Bill is circulated in accordance with the direction and opinions are received thereon, the Minister if he wishes to proceed with the Bill thereafter, shall move that the Bill be referred to a Select Committee unless the Speaker allows a motion to be made that the Bill be taken into consideration.

When a Bill has been referred to a Select Committee the Select Committee shall go through the entire text of the Bill clause by clause to see that the provisions incorporated therein bring out clearly the intention behind the legislative measure and that there will be no procedural defect in its working. The Select Committee may hear expert evidence and also the representations of special interests affected by the proposed measure. After a close study, the Select Committee will submit its report to the House together with the Bill. It is open to any member of the Select Committee to record a note of dissent. After the presentation of the final report of a Select Committee on a Bill, the Minister in charge may move that the Bill as reported by the Select Committee be taken into consideration.

When a Bill in its original form or when any Bill as reported by the Select Committee is allowed to be taken up for consideration, it is open to any member of the House to give notice of amendment to one or more clauses of the Bill. The amendment proposed shall be within the scope of the Bill and relevant to the subject matter of the clause to which it relates. These amendments are arranged in the list of amendment issued from time to time and they are considered in the order of the clause of the bill to which they respectively relate. Thus the Bill is considered by the House clause by clause. Such of the amendments which the majority of the House agree are incorporated in the respective clauses. This is the second reading of the Bill and it is concluded when the clause by clause consideration of the Bill is completed.

The Third reading.

This refers to the discussion on the motion that the Bill or the Bill as amended be passed. After discussion the motion is put to vote and the Bill is finally passed, when the majority votes for the same.

When a Bill is passed by the Assembly, the Bill shall be signed by the Speaker and presented to the Governor. The Governor shall either assent to the Bill or withhold assent therefrom or reserve the Bill for the consideration of the President of India. The Governor is constitutionally bound not to assent to but to reserve for the consideration of the President any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that court is by the Constitution of India designed to fill. Certain Bills can be assented to by the Governor. They are those falling in the State List. When the Governor does not agree with any of the clauses in the Bill it is open to the Governor under Article 200 of the Constitution of India to return the same with a request that the Assembly should re-consider the Bill or any specified provision thereof or any amendments. In such cases the Minister may move that the Bill be taken up for reconsideration in the light of the directions contained in the message of the Governor. After discussion and amendments, if any, the Minister may move that the Bill as originally passed by the Assembly be passed again or passed again as amended, as the case may be. When a Bill so returned by the Governor has been re-considered by the House and is again passed with or without amendment and presented to the Governor for assent, the Governor does not withhold assent therefrom.

Similarly certain Bills have to be sent to the President of India for assent. They relate to Bills falling under the concurrent list and containing provisions repugnant to existing or earlier Laws passed by Parliament.

After a Bill has received the assent of the Governor or the President as the case may be, the Bill is published as an Act. Then it becomes the law of the land and the Legislative process in respect of that measure comes to a close.

FACTUM VALET DOCTRINE

(N. Parameswaran Nair, Advocate, Ernakulam)

“Quod fieri non debet factum valet”-what ought not to have been done if done is valid -is obviously untrue if taken in a literal sense. Like most of the maxims it is true only under certain limitations and restrictions. It may be that an act done contrary to express direction or established practice of law will not be found to invalidate the subsequent proceedings. The maxim will be found to apply where a form has been omitted which ought to have been observed but of which the omission is ex post facto immaterial. R references may be made to matrimonial cases. Though a person whose consent is essential may take steps to prevent a marriage, yet, if the marriage has taken place the absence of consent does not invalidate it. Where parties have lived together as husband and wife, the courts are loth to cancel the marriage unless the law is directly and substantially infringed. It is an axiom of law that all things are presumed to have been rightly and properly done; so there is always a presumption of lawful marriage.

There is a distinction between circumstances which are the essence of a thing required to be done by an Act of legislature and clauses merely directory. Often the omission to comply with the directory clauses is considered not serious enough to invalidate the primary Act itself. Though no rule can be laid down for determining whether particular provisions are to be considered as mere directions which may be disregarded or as imperative provisions whose disregard will be fatal to validity, still certain principles are usually indicated by authors which serve as a criteria for making the requisite distinction. Where the pre­scriptions of an act affect the performance of duty especially by a public officer such prescriptions may be directory. But where powers, rights or immunities are granted with a direction that certain regulations, formalities, or conditions shall be complied with it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred. Imperative and directive clauses really rest on the doctrine of factum valet.

But enactments regulating procedure in Courts seem usually to be imperative and not merely directory. For instance where an appeal from a decision is provided with provisions requiring the fulfillment of certain conditions such as notice of appeal, transmitting documents, etc. a strict compliance would be imperative and non-compliance would be fatal to the appeal.

It is said that this maxim of factum valet owes its origin to Roman Jurisprudence but it may be noted that this maxim is not peculiar to any one system of law but is based on general principles of Justice, equity and good conscience. This doctrine applies to acts in violation of prescribed texts referring to secondary matters whose violation is excused as a matter of Justice and convenience.

The real basis of the factum-valet doctrine, the exact principle recognized in Hindu law (mimamsa rules) is what is known as “Yatha Sakthi Nyaya” “^{ÏÅÞÖµñß ÈcÞÏ”}ie., the maxim of doing as far as possible. The religious acts enjoined by Sastras are divided into perpetual or compulsory (ie. mitya) and those prompted by desire (Kamya). First category comprises those which are compulsorily enjoined independent of any desire. Mityas (such as evening prayers, marriage and other Samskarams) can never be avoided by anyone. They are eternally enjoyed Compliance does not enhance the merit of the doer but non-compliance leads to spiritual evil. While on the other hand kamyas confer a privilege or power which one may not care for, but if Cared for there is no injustice in insisting on religious compliance. This distinction bears a close parallel to the distinction in modern law between cases where prescriptions affect the performance of duty and where they relate to a privilege or power. This concept in Hindu law may be translated as the maxim of substantial compliance. That is, non-essentials may be performed in mitya ceremonies as far as ability exists and may be omitted without detracting the validity of the principal act.

Religious and moral obligation is not co-extensive with legal obligations. A person may sell away his properties to enrich an unworthy neighbour than to his own kith and kin and the neighbour may be selfish, treacherous and unworthy. Hindu sages have given precepts for guidance of life keeping in mind the distinction between law and society and status of person. That certain transactions are condemned in books like Smrithies does not necessarily prove it to be void; what kind of condemnation is meant by the precept whether it is a moral condemnation or a legal one. The doctrine of factum valet is applied in favour of validity of marriage which has been irregularly performed or performed in disregard of texts which are merely directory. In the case of adoption, three main matters constitute its elements apart from the form. The capacity to give, the capacity to take and the capacity to be the subject of adoption seem to be matters essential to the validity of the transaction. There are of cause questions of formalities, ceremonies and other points which amount to moral and religious suggestions. To such matters which do not affect the essence of adoption this doctrine of factum valet would undoubtedly apply. Understood in the light of the above observations the factum-valet doctrine has a definite unambiguous use in deciding questions of validity based on non compliance with certain rules and injunctions.

ADDRESSING COURT

(N.K. Kuttiraman, Advocate, Trichur)

It won’t be far from true to say that the administration of justice in India is copied from England which is one of the seats of very ancient monarchy. King in England is the Supreme Law-giver, Supreme Executive and Supreme Judge. As he found it inconvenient to discharge all these functions together, he delegated them. He created the Parliament and delegated his legislative powers; he appointed Ministers and delegated to them his executive powers and appointed Judges and delegated to them his judicial powers. That is how Judges in England became more or less the representatives of the King. The legal fiction is that King in England is administering justice through his representatives called judges and as such they were addressed ceremoniously as ‘Your Lordship and Your Honour!

This ceremonious form of address is confined to the court room, that is, the Judge is addressed “as ‘Your Lordship’ or ‘Your Honour’ only when he is on the Bench. When he is in Chambers or outside, he is addressed as ‘Sir’. One is not obliged to address him as ‘Your Lordship ‘or’ Your Honour when outside the Bench.

In India we have copied the practice of England and ceremonious forms as ‘Your Lordship’ and ‘Your Honour’ are used on the assumption that Judges in India represent the British Monarch who was the ruler of India. This is quite right so far as we remained a colony of the British King.But what is the position when we became a Republic on 26th January 1950? Are we to continue the old forms or are we to adopt new forms? That is the question.

In Republican countries the forms used are different, for instance, in America, a Judge in the Bench is addressed as ‘Mr. Judge, Sir’ for, he does not represent the King, who America has none, on the other hand, he represents the people. In Russia the Judge is addressed as “comrade Judge”. It has to be noted that in Republican countries Judges are not addressed as ‘Your Lordship’ or ‘Your Honour’.

In India we have to change the present form for two reasons. For one thing India has become a Republic and as such Judges are not the representatives of the King, on the other hand they represent the people of this country from whom they have received their authority. For another, the present forms tend to show inequality in status. In a democratic and Republican country any citizen is equal to any other citizen and to retain such forms of address as would tend to show inequality will be a violation of the fundamental principles guaranteed by the Constitution. So we have to change the present form into ‘Mr. Judge’ ‘Mr. Munsiff’ and so on. I also suggest that “submission” and “make myself clear” and such other things must also be dropped. I hope that people who are competent to effect the change will bestow some thought upon this matter.

Of course, I am mindful of the possible opposition from such quarters as are very much pleased with these forms. But this is not a question of the pleasure or displeasure of some people; it is a question of choosing some forms consistent with our Constitution.