National Shame

Often we witness in cinemas (in all languages) an influenctial male molesting a female is made to stand before a village panchayat and the Panchayat, on inescapable clear evidence of molesting, hands out a ‘severe punishment’ of ‘strict warnning’ to the said male that he should be very careful in future and avoid such moral aberrations. This ‘very rigourous’ punishment is meted out as the male either belongs to an influential family or son (sin) of a person who matters in many respects. This may shock us for a few minutes and nothing more happens. Fine.

But can the apex court of this country which has a constitutional responsibility to guide over a hundred crore population commit the same. Yes, it has and as  a legal practitioner I am ashamed.

A senior police officer reputed for his bravery molested, under the influence of liquor, a senior lady officer in a party in the presence of all which included also her husband.. The lady officer lodged a police complaint.

She could have quietly suffered in silence. But, she rightly thought, he must be punished for this, eventhough the complaint and prosecution would result in a sensational publicity which may spoil not only her reputation but also the future of her
children. I salute that lady for this.

It was extremly difficult to pursuade the witnesses to come to court and speak the truth against a senior police officer. But she did the truth was established in court (kindly read the just para again). The Court held him guilty but let off with a severe warning that he must behave properly thereafter, under the probation of offenders Act.

The matter reached the Hon’ble Supreme Court which  endorsed and confirmed this.

In my humble but firm view the Supreme Court has a duty to intrepret any law with a constitutional perception. 

It is not a Taluk court to plead helplessness and shut its ears and close its eyes. In the light of the constitutional provisions the Supreme Court (why? every court) has a duty to take all necessary judicial initiatives to secure the freedom of women and to protect their rights. At least, a right not to be molested. It is a pity that our Hon’ble Apex court could not do that. The Supreme Court has lost a golden opportunity to show that it is the champion of the weaker sections. As a tax payer I think it is a national shame. What surprised me was not even one women organisation came forward to protest against this verdict.

I, as a legal practitioner, put my head down in irredeemable shame.

Long Live Justice, If Any.......

Vishwanatha Sastri

Mr. M. Raghavan who later became the President of the Madras Bar Association in his early days of practice lost a case. The client felt strongly that Supreme Court would reverse if only a certain eminent senior represents his case. He was willing to spend money and sent Mr. M. Raghavan to Delhi. He met the said Senior Counsel who was practising in the Supreme Court and requested him to appear. The Senior Counsel after going through the case papers said that it was a bad case and Supreme Court would dismiss the Special Leave Petition and declined to appear.

Mr. M. Raghavan requested him to appear as his client was very keen that ‘he’ should appear. The brief and the fee were accepted. When the matter was called the senior counsel stood up. The judges said ‘what Mr................... there are no merits in this case. How do you accept this brief.” He replied “Yes, my Lords, there are no merits I had already told my colleague
(Mr. M. Raghavan).”

The SLP was dismissed. But Mr. Raghavan was very sad at this since the senior counsel did not make any efforts to convince the Judges.

When both of them came out of the court hall and reached the veranda, the senior counsel pulled out an envelop in which the fee was paid and returned it intact. He said, “I do not argue against my own conviction. I have agreed to represent because your client was keen and particular that I should appear for him. I do not charge anything for merely representing a client. Take back the fee.”

Mr. M. Raghavan was speechless. It was Mr. Viswanatha Sasthri. Such senior counsels were there;

Yes, were there.

law and Life. VII

What Happens - Now

Atleast one incident that had come to my knowledge has upset me and it is my bounden duty to record it here.

An orderly brought a middle aged couple to a Deputy Commissioner of Police, Chennai saying that they were waiting to see him for hours. The man complained that the Inspector of his area was not cordial and co-operative and was not interested in saving his life. The lady fell at his feet weeping
and prayed that her husband’s life be saved. A perplexed and tired Deputy Commissioner asked what it was all about. The sum and substance without elaboration was thus

a)  this fellow lives on the periphery of law and another rowdy (Dadha) has vowed to finish him in a day or two and he is capable as he had a few such murders to his credit

(b) despite repeated requests and some pressure the
Inspector of Police is not willing to help him (to arrest and remand the husband).

(c) He is willing to spend upto ten lakhs to save his life and he must be arrested immediately and put in central prison.

(d)         He wants such life protection only for two weeks as his political boss who is all powerful would return after a bye-election in two weeks and once he comes to Chennai he would solve all problems.

(e) He would be very safe in the prison as he had already sent five or six of his boys into prison and there are co-operative officers in the prison who would take care of him.

The Deputy Commissioner could not believe what washappening. Nor I am. The rowdy executed the above plan, was in prison and is o.k. now.

But this has raised questions within myself regarding

a)  The maintenance of prisons

b)  Administration of law and order

c)  How casually courts remand accused to prisons.

The Court of a Magistrate -

Value and Significance

About 28 years back one of my lawyer friends got married and the marriage reception was held at a hall in Egmore. A Judicial Officer working in Egmore Court then, also our class mate, too desired to attend the reception along with me. I promised to go in an auto, pick him up from court and go to the hall for reception. I went around 6.45 p.m. The Judicial Officer introduced me to his bench clerk saying I was practising in the High Court. The said clerk for some reason had no respect for High Court and exhibited his hatred in no small measure. He said

“What Sir, what high court or a lawyer there does, they always grant or get a stay against collection of taxes and other levies. Sometimes it is absolute stay and sometimes it is conditional. They sometime even stay statutes.”

Only we work here for 12 hours, you know sir, in the morning in one hour we collect atleast Rs. 10,000/- by way of fine every day in petty cases. (Rs. 10,000/- was indeed a big sum then). It is like collection in Lord Balaji’s temple at Thirumala. It is with our collection only other courts, why even your High Court  is run. If we do not show this revenue, courts would be closed.

We face atleast 50/60 criminals everyday; there is no security here; Anyone can attack us. In short, we run the judiciary and you the High Court lawyers and Judges find out our faults and thrive on that.”

My friend, the Magistrate, instructed his clerk to stop the lecture. I must confess in all fairness, most of what the clerk spoke were/are not wrong.

For the Bar - A Few Things

It has been my long term grievance that the BAR often agitates for reasons and causes not very much connected with the Bar. As a ritual once in 3 months (atleast) an agitation is announced. That too either on a Friday or Monday for reasons not so decent to mention. But, there are bonafide grievances for which the Bar has a duty to agitate and demonstrate.

a)  There is no parity in court fees levied in the moffusil and in Chennai City and also within the City. The court fee due on a claim of Rs. 5 lakhs before a Chennai City Court or a Sub Court in moffusil need only to be paid for a suit or claim of about Rs. 30 lakhs before High Court. To say the least it is a robbery by the State from its own citizens. In my humble view the very payment of court fee is throwing good money on bad debt since in 80% of cases the decree can not be executed and the money realized. When I probed into this disparity I
gathered that mostly ‘whites’ lived in the Madras City earlier and ‘the whites’ enjoyed a concession in everything which included the court fee. It is unfortunate this continues. The ill effects of this system are too many viz.,

     i)  By maintaining a lower tariff parties are tempted to value their suits higher so that they file it in the High Court thereby increasing the pendency in the original side of the High Court.

     ii) The irony is that a decision on the same cause of action is available at a cheaper court fee but it is decided at the level of a constitutional court which is expected to have higher expertise, knowledge and assistance from lawyers.

     iii)    Periodically the pecuniary jurisdiction is varied and the suits pending in the High Court are transferred to lower judiciary. The interim order granted by High Court Judges are vacated by Subordinate Judges. Some subordinate Judicial officers decline to vocate since the interim order was granted by the Hon’ble High Court.

     iv) Once it is transferred the High Court lawyer returns the bundle and another lawyer who normally appears before that court has to be engaged, of course after paying his fee. A month back a case has been transferred to a Fast Track Court and a lady lawyer quietly handed over the bundle saying she does not appear before Fast Track Court. The client has been made to pay again. In fact, I know the facts of this case well form the beginning. How to use the common area in an apartment is the question involved in the case and it is the lawyer who suggested that the suit be valued high and filed in the High Court. Now on change of pecuniary limits this lawyer has handed over the bundle.

     v) If a suit were filed in the City Court there is bound to be a first appeal and then a second appeal which would only add to the litigation. For High Court suits no second appeal (with a gestation of atleast 10 years) is available.

         Now, there are about 10 Corporations in our State and the benefit of tapering court fee should be atleast extended to all Coporations as the first step.

b)  In majority of the courts most of what the learned Judge says or asks is not audible. There are several reasons for the same. At times, the orders we hear in the court and the one communicated to the clients vary. When the copy of the orders are received, we are embarrassed. Sometimes even the stenographers make mistakes. As the President of the Madras Bar Association I used every possible opportunity including welcome addresses for the new Judges to press for the installation of public address systems in the court. In some courts it was followed earlier. I must say in
all fairness the Hon’ble Mr. Justice
E. Padmanabhan was very keen in wearing the mikes before commencing the court works.

     Once I told the Hon’ble Mr. Justice Subhasan B. Reddi that lawyers particularly above 50/60 years have some hearing deficiency and PAS is a must.

     The Chief Justice said “Why 50 or 60 years old
lawyers, even Judges who hear continuously for two/three years lawyers like you with a loud voice loose their hearing capacity.” I replied “Yes Chief, Now only I understand, how and why learned Judges decide issues and points that were never argued before them.”

     “Mr. Tamizhmani, your mischief has no limits.”

     “No chief, I only admitted my ignorance has no limits.”

     The Chief Justice smiled not happily as he realized that any reply would land him in terrains not so comfortable. In my considered opinion PAS is absolutely necessary in our court halls.

c)  With the increase of the strength of Judges we do not get adequate and spacious court halls. Often the litigants and practitioners jostle. When we wait outside there are no benches or chairs to sit. Sometimes women wait with their babies for hours.

d) Now that we have one main building and one annex building, court halls and areas in the buildings could be earmarked viz., one area for original and company side; another for writs; yet another area for civil, criminal and writ appeals and for other miscellaneous works. This in my opinion, would, to some extent reduce the strain. Now, one writ court is in 3rd floor in the annex and another in the main building. When we hear the case is reaching fast, we tend to rush and cover quickly the
distance (hundreds of meters). All of us know that in undertaking such an exercise only, an advocate collapsed. Let there not be any more.

The learned Judges, I hope, would not insist in sitting in halls close to their chambers; nor the seniority should stand in the way of selecting the court halls. If the learned Judges are willing to co-operate subject wise areas and court halls could be earmarked permanently. There are many such genuine grievances and the Bar has a duty to ask for and agitate. They do not.

An Appeal with Folded Hands

For over 15 years I have represented the State and Central Government and Public Sector undertakings and Universities in Madras High Court. Anyone may send a petition against an Officer and file a Writ Petition seeking a direction to probe the contents of the said petiton, collect evidence and take action. Courts have been granting such orders just for the asking of it, right, left and centre and that too at the admission stage. A command is issued to the Head of the Department to enquire into those allegations and take suitable action. Very innocuous as it may seem. There is nothing wrong in the order. But very next day, it appears either in all newspapers or in some depending on the ‘organizing capacity’ of the petitioner. The writ affidavit containing the allegations is handed over to the press with the appropriate bait and all allegations are publicized over the State or beyond. Anyone who reads that would without any doubt gets the impression that the officer (respondent) has committed all those that are alleged and the High Court directed action.

In my experience 90% of the allegations are, not only baseless but also false, to the knowledge of the signatory. The writ is filed (1) when the officer is likely to be promoted (2) is likely to retire (3) is recommended for some award/reward (4) when the officer takes / is likely to take disciplinary action against another Subordinate Officer. The worst happened in another case. 10 days before the marriage of respontent / officer’s daughter a writ was filed and the usual publicity in the press followed. All third rate and vulgar allegations. The daughter attempted to commit suicide when the groom had asked her about these allegations over phone. God only saved their family.

One day the Hon’ble Mr. Justice K. Govindarajan wanted to see me around 4.45 p.m. I went to the chamber. He showed me one evening Tamil newspaper which carried in detail, the news item containing the various silly allegations about an officer and the High Court’s dirrection to take action which the same learned Judge passed around 11.45 a.m. that day. The learned Judge also informed me that his stenographer is yet to type the order and it was still available in short hand in her pad only. The  learned Judge was upset.

I gathered later from some other source that the
learned Judge also had complained to the Acting Chief Justice Mr. Justice N.K. Jain who in his usual emotionless voice appears to have said “Brother, we write, press write, all are right.” He again proved what an outside Chief Justice would do. They do not want to discharge their responsibilities if they consider one section would be unhappy.

Only honest officers are the victims of such writ orders. The present Chief Secretary Ms. S. Malathi, I.A.S., a woman of sterling character and great leadership qualities also suffered this once.

There were two occasions where serious allegations were made against me. While I was a counsel of the Forest Department in the High Court some one had sent a petition that I was paid huge sums in two cases. One day Mr. S. Ramakrishnan, I.A.S., Secretary to Forest Department (who retired on 31st August 2010 as Chief Commissioner of Information under the RTI Act) called me over phone and informed with some hesitation that a petition endorsed by a Legislator has been received complaining that I was corrupt. The Secretary knew me well and was sad that a complaint had come. But he had a duty to probe. I requested him to communicate the gist of allegations (not a copy of the petition) which he did. He received a reply within 2 hours from me as under.

a) one of the two cases was decided four days before I took over and how could one say that I was paid for a case argued by my predecessor and it was a case where the interim order was made absolute after 3½ years.

b)  In the second case I had argued and the Forest Department has won with costs.

And if some one had paid me in that case it should be as a reward for my capacity and sincerity in winning the case.

Mr. S. Ramakrishnan, I.A.S., rang up and laughed over phone, ofcourse, after going through the reply. I thanked him for his response.

Yet another incident was more serious and a little strange. I was a standing counsel for Corporation of Madras during 18.10.89 and 02.07.1992. In one writ petition an association of traders who were occupying the road margins between Udayam Theatre and E.B. Sub Station (on both sides) in K.K. Nagar, Chennai complained they have been trading in old furnitures
like second hand tables, chairs, stools and so on for several years and the authorities were threatening to evict them without providing another area for them. The matter came up before the Hon’ble Mr. Justice S. Ramalingam who suggested, out ofsympathy, that they may be permitted to occupy temporarily some nearby unobjectionable area and after one or two years they should move away. This suggestion was made as road
widening could not be postopned and unless the traders are evicted roads cannot be widened. The traders asked for a certain area which was free from vehicular traffic then, in 1990.

I objected to this resettlement proposal. The Hon’ble Judge directed the Government Pleader, myself and the counsel for Housing Board to find out as to whose land was this and the objections from their clients and assured us that the objections if any, of the owner of the land would be considered.

I addressed a demi-official letter to the Commissioner, Corporation detailing out the developments, seeking his objections and views on this proposal of resettlement. There was a reply that the land does not belong to Corporation and as such there are no objections. I preserved the reply. It was really strange that counsel for Government, TNHB also said the land did not belong to them. The learned Judge smiled and said that the traders could move into this strip of no man’s land and occupy it for one or two years. The Assistant Engineer of that Division (of Corporation) who was attending court under my instructions (I foolishly thought so) urged me to oppose and I told him we can not. He was very unhappy. An order was passed by the court.

A week or so later, I was informed that a complaint has been received in writing that I had accepted a huge sum not to oppose the above proposal. That petition was sent by a resident (with a counter signature of one M.L.A.) and the petition has been forwarded to the Corporation with a covering letter from the RDLA Minister with a direction to look into the issue and remove me from the post of standiing counsel, if found true. When enquired the Assistant Engineer who was present in the court had said that I did not oppose this proposal but did not know how much was paid and who paid me (his counsel, who
remained silent).

I probed into the entire issue through my political
connections. It turned out that the M.L.A. who has counter signed the petition was planning to let the traders occupy the same land with the help of Corporation Officials, (of course, for a hefty consideration) and the, court had allotted the same area depriving ‘all concerned’ of huge benefits and that was the background of their anger.

I had already said that this was not only serious but strange as sell. It is strange that the Minister who had sent a covering letter knew my ABCDD (Attitude, Behaviour, Character and Devotion to duty) from my childhood. Yes, it is my relative Thiru Ko.Si Mani. Either he had no time to read the petition or did not enquire anything. In all fairness to him I must say my name did not find a place in the petition. ‘Standing Counsel’ only was mentioned.

I had sent a strongly worded reply under a D.O. to the Corporation Commissioner reminding

(a)   my earlier D.O. letter on this

(b)   his reply that it is not Corporation land and as such we cannot object.

I also added that (I quote) “I am at one with the Hon’ble Minister that all corrupt rascals should be flogged in public, if possible naked.”

I learnt that the Commissioner had lost his sleep for a night, at least.

But contrary  to the intentions and High Court Order the traders are still occupying the area and some have even put up super structures. Whenever I pass that side I am reminded of what happened and what did not.

The writ petitions seeking direction to investigate into the allegations are made mostly with a motive and it is so timed that atleast the cloud of court order and the shadow of investigation spoil their image and good opportunities in their carrier. I can cite several such damages caused wantonly with the aid of these socalled innocuous orders.

With folded hands and all humility at my command I make an appeal to the Hon’ble Judges

(a)   to avoid referring to the allegations against the authority in the order and

(b)   Merely direct that the complaint / petition / representa-tion dated so and so be investigated and follow it with the necessary action.

(c)   Direct that the allegations mentioned in the said representation should not be published in the press as they are yet to be looked into. No one has a right to publish mere allegations. Freedom of press does not mean freedom to publish unverified allegations.

law and Life. VI

Chief Justice from Other States

As I have said elsewhere in this book an outside Chief Justice does not take serious and keen interest in the improvement of our State Judiciary. They do not have the time also. During working days they sit in the Court and during week ends and vacation they are away at their native States.

But one Chief Justice made a difference. Though his tenure was not free from conflicts and controversies, the Hon’ble Mr. Justice Subhashan Reddi took pains to identify, locate and acquaint himself with the local issues and Advocates. He could atleast identify and address 500 advocates by their names in the High Court. He worked hard and followed up the proposals he had sent to / pending with the State Government atleast once in a week. He can locate even small towns in our State without
any difficulty.

On the judicial side he had a remarkable knowledge of law and peculiar presence of minid. He would listen to theAdvocates for 3 or 5 minutes without interruption so that the Advocate would have the satisfaction of having said what he or his client wanted. After 5 minutes the Chief Justice would just ask one question. The reply or the absence of any reply would determine the fate of the case. He always ensured that some relief was given without harming the other side. He had a special knack and flair for extending such reliefs.

Almost every Judge would say that their doors are always open to Advocates and Advocates may come to them for any help. But even Gates of their compound walls would also be locked. In the compound of some of the Hon’ble Judges even the cars are not permitted. One would be asked to leave the car outside the compound and enter. But Mr. Justice Subhashan
B. Reddi was an exception. He mingled with the Bar freely and was willing to extend a helping hand wherever possible.

He is responsible for bringing many facilities to the High Court. Whether the bifurcation and formation of Madurai Branch of High Court is appropriate or otherwise is a matter to be determined by time. But the entire credit (or blame) should go to Mr. Justice Subhashan Reddi. In my humble view he is the best Chief Justice of our High Court in the last 25 years.

Blaming the Judges

Now-a-days there is a tendency to blame the Judges for the failure of cases. The advocates find it convenient to say without hesitation that they have lost the cases because of either the impatience or inexperience or ignorance of the learned Judges. This is the greatest disservice the Bar does to itself. These cheap lies invented to console the clients would definitely, in the long run, undermine the dignity of the Bar and expose them to incurable helplessness. A well equipped lawyer shall never use these petty tricks to impress the clients.

European Judges were fair in their assessments. While discharging their duty as a Judge they had no bias of caste/race. There was one British Advocate General who was not shrewd or sound. One native Indian Advocate was instructing the Advocate General in a case and the Advocate General could neither catch nor grasp the instructions fully and our Advocate looked at the Judge helplessly. The European Judge observed “Mr. Swaminatha Iyer, I realize, you are pumping air into the punctured tube.”

The Brahmins as a class had done a great deal of service to the administration of justice. Till 1960 or so the Bar was dominated only by Brahmis in our State. Whatever they did or did not, they always ensured  that the dignity of the Bar was maintained intact. They never dance, drink or dine with the clients. Now men and women from all communities come to the Bar. I am also a non-brahmin, first generation lawyer. But I am not too sure whether we, the present generation of lawyers, would hand over the profession with the same dignity with which we received from the Brahmins to the next generation.

A very disturbing Development

As I have understood the criminal law of this country, the State have assumed the powers of prosecuting and punishing the offenders to ensure that the affected and their relatives / friends do not take law into their hands and revenge. In my humble view, sadly, it is failing slowly. There is a variety of reasons for the same.

a)   Police and other investigating agencies are unable to tackle the failure of law and order.

b)  80% of the men manning such agencies are
inexperienced, lethargic and corrupt.

c)   The other 20% of such men are willing to act and demonstrate their ability only when their administrative or political boss is interested in the investigations or some incentive is offered.

d)  Supreme Court has declared that death sentence shall be awarded only in the rarest of rare cases. And in such rarest cases either the State or Central Government deliberatelysleeps over or His Excellency, the most merciful President do not want to reject the clemency petitions. In other words they are not willing to perform even their constitutional duties. It is so even in the rarest cases like the assassination of a former Prime Minister or the attack on the Parliament. The resut is the offenders/culprits live longer at the taxpayers
cost.

e)   The State Governments on their part release the life convicts in 5 or 7 years under some pretext or the other.

In this background the common man is highly dis-illussioned and having lost faith in the State retaliate or revenge himself.

To say the least it is a sad realtiy. We, the lawyers, the Judges and the State have only brought about this situation. I am afraid the Soverign State is surrendering back its right to prosecute and punish the guilty to the citizens. It is bad for any civilized society.

Distribution of What?

Often I come across news items and television coverage showing senior police officers distributing stolen (recovered) ornaments and other articles to the owners in a kind of function got up for this. As a legal practitioner I do not at all follow this. The return of stolen articles is regulated under the criminal
procedure code. The trial courts do have a control or at least many think like that.

In view of arrangements of such functions for return, the return is postponed for several months. I know one such function was delayed for 8 months as under.

a)   It was cancelled in view of a Minister’s visit to a town.

b)  The I.G. had gone on leave for his son’s wedding.

c)   S.P. was under orders of transfer.

d)  There was a tragedy in which (bus accident) several persons died.

At last when the function was arranged the owner was instructed to depute his wife for receiving as the I.G. felt that it was appropriate that ladies receive the ornaments from him(?) When she received she was asked to pay Rs. 2,000/- (her share for arranging the function). I saw the photo in which the I.G. gave away the ornaments with the pride and happiness that are usually noticed on the face of politicians when they distribute largess to the poor. She had to wait for 4½ hours for this function. Fortunately all her ornaments were returned.

An elderly gentleman from Sivaganga District settled in East Anna Nagar, Chennai whose house is only four houses away from the residence of a sitting Judge of our High Court had told me something different. He is wealthy. Police recovered jewels stolen from his house in his native Village. The acknowledgement for return of ornaments was taken well in advance. When he received and verified, about 15 sovereigns were missing. When a central cabinet Minister (then and now) holding a powerful portpolio intervened the police showed ‘Him’ the acknowledgement signed which stated that ‘he has received the entire ornaments after full verification and nothing more was due.’ The well qualified (in law) Minister advised him not to agitate as he cannot succeed in the light of his acknowledgement. Such functions are a disgrace to the Rule of Law. I am not sure whether such functions are a weakness of Judiciary. But convinced that they do not demonstrate its strength.

Fast to Kill Justice

In a function arranged in Madras High Court to felicitate the Hon’ble Mr. Justice K.G. Balakrishnan, the former Chief Justice of India, I participated and spoke on the topic ‘Role of Judiciary’ as desired by the then Chief Justice Mr. A.P. Shah. The substance of my speech (in 2006) was that the so called Fast Track Courts are on a wrong track. I said “One Fast Track Court heard, decided and punished an accused in a murder case in some 3 weeks, another in another murder case punished in 18 days and in that context another Fast Track Court Judge thought he must be super fast and accordingly heard, considered and punished the accused in another murder case in 8 days.” I concluded that “these trials are a mockery and the Fast Track Courts are quickly killing Justice.”

The Subordinate Judges are like Corporation school students. The former has a compulsion to attend all High Court meetings and the latter, the meetings of ministries. Both are supposed to clap hands for the speech of the Chief Guest. Many Fast Track Court Judges who attended that meeting were unhappy at my remarks.

Mr. Justice K.G. Balakrishnan refered to my speech and said that my views were not appropriate and Fast Track Courts were rendering a great deal of service. But he was very gentle and soft in his remarks. Chief Justice A.P. Shah became very much disturbed and agitated when I made the remarks.

In 2008 or early 2009 the Division Bench consisting of the Hon’ble Mr. Justice D. Murugesan had set aside the judgement of the Fast Track Court which I referred second in my remarks on the ground that concluding the murder trial in days was a mockery of justice. I am convinced that justice would prevail, of course always a little late. I do hope Mr. Justice K.G. Balakrishnan and Mr. Justice A.P. Shah would have read the judgement of the Division Bench.

Law and Life. V

“Today is the last Day”

Whatever Mr. Iyer spoke there used to be a subtle humour. There is a popular and successful lawyer in our court who can speak in English non-stop for one hour on any subject with the background music of European lawyers viz, ha, la, yah, ho ho and so on. Mr. Narashima Iyer said once about him “he can speak on anything without preparation; but he has a contempt and hatred for one thing viz grammar.

Because the said lawyer never bothered about anything called ‘grammar.’

But once Mr. Iyer spoke without any humour and a little cruelly. On 23-4-2003 around 9.45 a.m., I saw him climbing the stair case carrying a bag near the Madras Bar Association. I offered to carry the bag as he was over 80 years. He spurned it. As we were climbing together he starred at me and said “I have come only to vote you and I will not come hereafter; this is my last working day.” I was contesting for the secretary ship of MBA for the second term and the election was on that day. I could not gather myself and say anything. He was looking hale and healthy. He attended court, voted for me. Courts worked for two more days in April and he did not come and our summer vacation commenced. During the vacation he fell ill and was hospitalized, slipped into a coma and died on 25/26-6-2003. The Hon’ble Mr. Justice A.R. Lakshmanan (Judge, Supreme Court) was standing  sad throughout in the  creamation ground. I also was present. None could follow why was I so sad. I did not reveal that to anyone.

I do not know whether he was a sage or otherwise. But his words came true 100%. Something still I cannot believe or explain.

Why Justice Y.V.

The Hon’ble Mr. Justice Venkatachalam was a very tough Judge in every respect. It was more so since he had his own peculiar views on rendering Justice. Advocates who appear in his court would always be tense. Whereas one Advocate sitting in the court hall was highly relaxed and confident. None could follow that. When his case was called he got up with ‘an all smiling face’ and started arguing. The learned Judge as usual listened to him for two minues, read the case papers himself for eight minutes and dismissed it in one minute. After dictating, the learned Judge, said “Babu that Venkatachalam is different from this Venkatachalam.”

The said Advocate left the court murmuring something. The learned Judge is an ardent devote of Lord Venkatachalapathi of Thirumala. He had raised a loan from his P.F. and donated lakhs to that temple (to my knowledge). The above case was heard on Monday. The previous Saturday this Judge had gone to Thirumala and stood in the regular queue without disclosing his position to the temple authorities and this advocate had sighted him there and had offered small services to the learned Judge. He was full of hopes about his case on Monday. The learned Judge has had hopes only in Justice and in nothing else. After going out of the court the said advocate cursed loudly and described the details of his services offered on Saturday and warned advocates not to place any hopes on this Judge. Long live Mr. Justice
Y. Venkatachalam.

Moved Forward, Back; walked out

In 1979 I used to go to a popular Auction house on
Sundays on Anna Salai and spend some time in Shanthi Theatre Campus if I go there early. Once I saw an elderly couple near the fountain in the  Campus. The husband appeared to be very familiar but I could not recognize him. I was standing some 30 ft away from the couple and though their conversation was not audible (because of the crowd in the campus) it was clear that the wife was asking the husband to do something and he was in two minds.

When the wife insisted, he would walk a few steps towards the theatre and come back saying he would not. Again the wife would convince or persuade the husband and he would walk forward and come back. This scene was repeated at least four times and after that they went out as the husband mustered
courage to tell his wife that he would not.

The question about the identity of the familiar male was answered around 12.15 p.m. on Monday, the next day. It was the Hon’ble Mr. Justice Swamikannu. I located one of hispersonal staff who revealed that by the time the Judge and his wife entered the campus there was heavy rush and the Judge was not willing to see the theatre Manager, reveal his position and ask for two tickets on payment. Despite the best efforts of his wife the Judge declined saying it would be an abuse of power and they were planning to reserve and go next Sunday. I appreciated the meaning of the word ‘propriety.’

Mr. Justice Swamikkannu, a Senior Judge, after some illness died on a Vaikunda Ekadesi. The belief is that he would have gone to heavens.

Both the learned Judges, Mr. Justice Y. Venkatachalam and Mr. Justice Swamikannu belong to a class suppressed for long.

I wish we all of us learn to emulate their qualities leaving aside our bias about communities or caste.

Yes you may walk with constables

The Hon’ble Mr. Justice K.S. Bakthavatchalam issued notice on a Contempt Petition to the State Home Secretary. One Additional Government Pleader rang up to inform that he should appear in person on a certain day. The Hon’ble Home Secretary shouted at and said how dare a Government Pleader inform this to the Home Secretary “After all you are appointed by me” and the shouting continued.

The matter reached the then Advocate General
Mr. K. Alagiriswamy, a fine gentleman, who rang up the Home Secretary and said he had the option to appear or face the consequences. The Home Secretary appeared and faced Mr. Justice Bakthavatchalam. Bad days chased him. He was arrested and remanded on a murder charge. He refused to sit along with Sub Inspector of Police in the same car and travel together as he was the former Home Secretary. The Sub
Inspector told him curtly that there were two options.

(a) He may sit with him in the car and go to prison.

or

(b) He may walk on the road to prison along with two constables.

He jumped into the car.

Yes, Why Should I Advise You.......

I have represented Governments, Universities, State & Central Public Sector undertakings for over 15 years. No learned Judge had asked for any favour. As a policy I do not go to their chambers.

One day a sittinig Judge of High Court wanted to see me.I did not know him as he had come from the Subordinate
Judiciary. I went to his chamber.

Judge asked

“Is it right the Kancheepuram District Collector Mr.............................. is close to you?”

“No Sir, he is not close to me. I appear for him as a Special Government Pleader in some cases.”

“Mr., I know he is close and would listen to you. I want something to be done. I have constructed my house in the outskirts and at the rear of YMCA ............... (place). Now I travel along the lengthy compound wall of YMCA and take two left turns and one more right turn to reach my house. The road
is very bad.”

I thought I may be able to persuade the concerned local body to lay proper roads and understood why I was called.

I enthusiastically told him

“Not an issue Sir, roads can be laid or repaired.”

“Who wants the road. Listen to me. Ask your Collector to instruct YMCA to demolish the compound wall at the centre and provide way for my car so that I would travel across instead of taking a circuitous route. YMCA may even construct shops on either side of this pathway and it may get some income.”

“Sir, YMCA is an international body. We can not instruct all these.”

“Mr. I do not want your advice.........”

“Yes sir, why should I advise you free of cost,” So saying I left the chamber.

The Judge was speechless.

Any one any day may.......

In early 2006 The Hon’ble Chief Justice Mr. A.P. Shah entrusted an assignment to me. A public interest litigation was filed in the High Court seeking certain facilities in the railway compartments and platforms so that the physically handicapped may use them without any strain and with case. The facilities included special toilets, taps, seats, elevator and some holding facilities at the entrance of the compartments. These were claimed as per a special welfare statute. The Railway administration contested the case.

The Chief Justice directed me to visit Chennai Egmore and Chennai Central Stations, the platforms and the compartments, examine the demands and give a report.

Mr. V. Radhakrishnan senior Advocate appeared for the Railways and Mr. Inbarajan of M/s Surana & Surana represented the Association for the handicapped, the writ petitioner.

The Chief Justice had fixed a remunaration for me in the order. I declined to accept any remunaration on the ground that I propose to do this as a service to the handicapped. I inspected both the stations took photographs and gave a detailed report as directed. The Senior Officers of the Railway administration
were very co-operative and appreciative of the difficulties of the handicapped. Many of my suggestions were implemented by the Railways. I had concluded my report like this

“Every one should appreciate that anyone, any day may suffer any accident and incur a disability”

In retrospect now I think that I had foreseen the accident I had met with on 6-5-2009. Because of the accident there is shortening of my right leg by 3.8 cms and Now I walk with the heep of a stick.

Perhaps all those suggestions for facilities for the handicapped made by me would be useful to me now.

Did I anticipate this?

I fixed it

As I had said elsewhere in this book. I represented the State Government for a few years before the High Court Mr. S. Manikumar, a good friend, (now a learned Judge of High Court) also represented the state Government. As we live in the same area I used to go home in his car in the evenings.

One day he was looking very tired and a little disturbed. He was appearing for the Excise Department which was tough to handle. He told me that there was some problem in respect of one IMFL shop (brandy shop) in Kanyakumari district and a few writ petitions and contempt Applications have been filed. They came before different learned Judges and the Judges were very unhappy about the Excise department. He said those cases had become a serious headache. He is sincere and hardworking. Hence I told him not to worry and we both of us would sit together and try to find a solution.

Next evening by 6.30 I went to his enclosure. The field officer from Kanyakumari was waiting there with Volumnious files. The files were heavy. But the officer said that he was working in that area for a considerable lenth and he could instruct us and clarify anything. We discussed the matter with him and went through the files. In about 20 minutes we had found out the problem. It was very simple but highly complicated.

The location of shop is fixed by the Excise officers and the  District Collector approves the same before public auction. There are a lot of restrictions in the Rules. There shall be no schools, colleges, hospitals, and place of worship nearby. Bearing all these in mind a place within the notified area is fixed and put to auction. Thus the choice / fixation of location of a shop is a delicate job. After spending sometime it was the cause of so many writ petitions and contempt cases. In short the fixation was
stupid. I shouted at the officer. The fixation was like this viz at the junction of eyebrows and left leg. How could there be a place like that. I was extremly angry and started shouting. “How this place was fixed; there can  never be a place like this, the officers just do not work; how can they be so foolish and stupid; The collectors just sign and they do not read the description I have no doubt that the officer who fixed this place is mad” I was very harsh.

At that the truth leaked and the field officer said “Sir do not say mad, foolish and all that.”

“What nonsense is this, what else will you say, he is mad”

“Sir No,....... No, donot say all that I only fixed that place. I persisted “Then you are foolish; what else” The officer starred at me for a while and said

“I am not a fool; I know there cannot be a place at all answering the description in the auction notification.”

He became cool a little later and explained that even during the earlier auction period the present writ petitioner was running a shop in the same area at a diffeat place. He appears to have illtreated or slighted this officer for something. This officer was looking for a chance to teach him a lesson. When the notification for the auction for the subsequent period was prepared, this officer fixed a place which does not and cannot exist. This officer knew that the same person would bid and take the shop in that area for this time as well as he is an influential person. Thus he revenged. It gave rise to all cases.

He pleaded with my colleague not to let him down. We were helpless. But we discussed the matter and decided to offer another place to the shop owner in the same area. My colleague spoke to Mr. Ramalingam I.A.S. the commissioner of Excise who had a lot regard for him. He briefly told him that the
location was wrongly fixed and another place should be offered. The commissioner agreed and next morning another place was given and all cases were dismissed.

Though anger is not a quality I am more than convinced that my anger and outburst only brought out the truth and solved that case.

Award Costs Rs. 20,000/-

While I was the President of the Madras Bar Association it was decided to institute a Life Time Achievement Award for serving the field of law. The first award was conferred on late Mr. Justice
K. Veerasamy. I had neither seen nor met him
earlier. I am of the firm view that his Judgements are like Indian Evidence Act viz so brief and so meaningful we cannot skip or remove even a cama or semicolon. Nor can we add anything.

The award carried rupees One Lakh and a citation. When I called on him to inform he asked me what would he do with that amount.

I was almost waiting for such a query. I suggested that gold medals may be instituted to be given to the top students in the Law University in the field of constitution and so on. Justice K. Veeraswamy did not expect this ready reply. In a trice he understood I had planned it in advance. He said “It is really fine that this amount be spent for promotion of law.”

He asked me as to how to implement it. I told him that I am a Senate Member of Law University and there should not be any difficulty. When I looked into that it came to light that an additional sum of Rs. 20,000/- (Rs. 1,20,000/-) would be required to institute of such gold medals (3 or 4).

Mr. Justice K. Veeraswamy said “perhaps this is one thing you did not expect and plan.” I smiled embarrassingly. He hugged me and said “no problem, I shall donate Rs. 20,000.” He immediately called The Manager Indian Bank, Adyar and requested him to foreclose one fixed deposit with immediate
effect.

The function was arranged at Raja Annamalai Hall, Parrys on 08.04.2006 and the Hon’ble Mr. Justice S. Rathnavelpandian the first one from our state to become the second Judge of the Supreme Court after independence (another achiever) conferred the award. The Hon’ble Mr. Justice A.R. Lakshmanan was very helpful in getting the hall free of cost.

Dr. Darwesh the Vice-Chancellor of Law University also was invited to the function and the said amout of Rs.1,20,000/- was handed over to him by Mr. Justice K. Veeraswamy. The gold medals are awarded every year now.

I knew Mr. Justice K. Veeraswamy was not financially sound when he donated Rs. 20,000/- He did this more to relieve me of the embarrassment. During one of the discussions around that time, I told Mr. Justice K. Veeraswamy, suddenly “What sir, there are a lot of conflicting views about you.” Come to think of it now it was my height of impertinence and immaturity. But with a smile he answered “see
Mr. Tamizh Mani I am also a human being.”

Yes, he was a great human being indeed.

People always get Justice

While I was the secretary of Madras Bar Association a lady research student from Australia who was preparating a thesis on the ‘Administration of Justice in the Sub-Continent’ sought my help. The Sub-Continent consists of India, Pakistan and Bangladesh.

By the time she came to me 90% of her material collection was over. She said of the three in one country there is no system, In another a semblance of the system is maintained to satisfy UNO and the world bank. She stopped at that with a smile. Out of anxiety I asked her what about our country. She replied with a twinkle in her eyes. “In your country people
always get Justice”, she paused, smiled at me and continued
“when equals fight in Courts.”

I almost fainted. But she is largely right.

The Facets and Failures of Apex Court

In my considered opinion there is no consistency in the approach of our Supreme Court. Very often it leaves an impression that the learned Judges could have acted with a little more seriousness.

Majority of special leave petitions are dismissed. Fine. There is no quarrel. But some of the observations made there in not so much to meet the ends of Justice, has the effect of reviving the very litigation from the trial court once again.

Thus the second round of litigation commences with the blessings of our apex court.

Some of the observations made in the court hall (and published in the press) do not augur well for the height at which the courts are held or worshipped. I do not propose to quote them.

In an occasion there was an article in a newspaper
against a certain State Government and the Government registered a case and wanted to arrest the editor. The editor approached the Supreme Court. A mention was made to take up the case urgently. The Hon’ble Judges asked ‘What is the urgency.’

“The police is going to arrest the Editor” was the reply

“Mr.Ganesh” (name of the ounsel) you do not know. Let him be arrested, the circulation of his daily will go up by a few lakhs.

I do not think this kind of approach is called for when an editor omplains of violation of his right to freedom of expression.

Unfortunately the Supreme Court - has not been consistent in its view on many important issues and fails to guide the courts which are expected to follow the Supreme Court.

Adding insult to injury the Hon’ble Mr. Justie Markendeya Khatju when deiding a narcotics case and aquitting the accused (in a well argued case) has held that the said Judgement should not be cited as a precedent.

It is a reported Judgement. I do not appreciate this. The learned Judge in pursuit of his duty has heard both sides and decided the legal priniples involved therein, one way or the other. There is nothing personal here. It is the duty of the apex court to guide the other courts. This learned Judge atleast should have ensured that it is not reported, in case he thought, his Judgement was not that correct or up to standards or wrong. The least that it reveals is the lack of confidence of the learned Judge in his own  capacity to decide the cases.

Often we come across Judgement which contains in abundance the seeds of future / further litigations. This is not a welcome trend.

There is a growing tendency to slight or ignore the
Judgements of Supreme Court and sometimes there is also an open criticism. It all started two decades ago and it was rewarded. Mr. Justice Sabhaya Sachi Mukerji of Calcutta High Court stayed the State assembly elections after it was notified. It was unheard of in the Judicial history of any democratic
country. Rightly the Hon’ble Supreme Court came down heavily on this verdict and passed strictures while permitting the elections to go on.

Mr. Sabhaya Sachi Mukerji said the power and authority under Art 226 is wider and hoped “Larger heads would prevail in Supreme Court” This came in the press I foolishly thought that it was a clear case of contempt of Supreme Court. The said Judge was elevated and became the Chief Justice of the apex court, thanks to the political clout he had enjoyed.

Recently in a service case the Hon’ble Mr. Justice Markandeya Katju has said that a Judgement of the Constitutional Bench on the same issue will not bind his mind. Well, Indiscipline has too many facets.

Yey another issue I shall write about is the availability of 3 or 4 Judgement expressing different views on the same issue. With the result the advocate cites the one which is favourable to him. Sometimes, when all are cited, the Judges choose one which is close to his views, that need not be correct.

At least till 1985 or so we had Judges who could handle cases in all fields of law, viz Civil, Criminal, Constitution, Service, Taxation, Labour and so on. Now-a-days perhaps it is rare or we do not get such Judges at all. One notices while reading the history of this court, Senior Judges and often Chief Justices had sat on the original side.

To-day the Judges who were successful as appellate side lawyers at the Bar find it very difficult to sit in the trial work.

Mr. Tamizh Mani is there any

contempt in this case

When I was representing the State forest department there was a case of contempt against one District Forest Officer. The allegation was the said officer removed the encroachment after the interim injunction not to disturb the same granted by High Court expired. (it was not extended but the main case was pending). The law is very strange that even after the expiry of interim order the encroachment cannot be removed. A contempt case was filed by the encrocher.

The case came up before the Hon’ble Mr. Justice
S. Ramalingam and late Mr. K.V. Sankaran who always took up the case of down tordden appeared and as usual vehemently argued against everything that he thought wrong. My good friend Mr. A.U. Ilango had engaged him. I filed a detailed counter.

The learned Judge directed the District Collector, Nilgiris to examinie all the original records like the trip sheet of the Jeep said to have been used for removal and the diary of the officers and give a report.

The collector perused all the ‘correct records’ as produced and came to the ‘correct’ conclusion that the encroachment
was  not removed by the forest officers as alleged.

Mr. Sankaran’s anger was exhibited in no small measure. The learned Judge had some suspicion. He knew me well that I do not  utter a lie or mislead in the court. The learned Judge suddenly turned to me and asked me “Mr. Tamizh Mani is there a contempt in this case.” Such a straight question in Such a hotly contested contempt of court case was not only unusual but also uncalled for. Neither the Judge expected me to admit anything. He wanted to decide the case depending on the nature and language of my reply. I was nervous. I could not take long to reply as that itself would strengthen or confirm the suspicion. I replied loudly (and quickly) “My Lord I have filed a detailed counter.”

The Judge smiled broadly and turned to Mr. K.V. Sankaran and said “well it is clear; you move a petition tomorrow for putting up the hut again. I shall permit. In any case I cannot punish any one for contempt.”

Mr. K.V. Sankaran fuelled by anger and propelled by helplessness failed to follow what happened and shouted“No, why should we seek your permission for restoration, I shall not.” He left the Court Hall without realizing he had won the case.