Law and Life. IV

“Vera Jollie Eathu”

The Hon’ble Mr. Justice S.S. Subramani popularly called SSSJ needs a special mention. He is from Kerala and a workholic. He used to work like a factory and produce and pronounce judgements. It is widely believed that he worked 16 hours every day during 5 week days and worked for 18 hours during the weekend/holiday. On every Monday he used to pronounce 30 to 40 judgements.

Once on a Friday. I argued the last case at 4.40 p.m. and he said “post it for orders on Monday.” I could not believe as he had already posted over 40 cases for judgements to Monday and atleast 20 of them are hotly contested cases. While I starred at him for a minute he read my mind and said “Vera Jollie Eathu Enakhu” (what other work I have).

My Lord, it is just unfair

Once we had to file a batch of Civil Revision Petitions on behalf of M/s. Neyveli Lignite Corporation under the Central Land Acquisition Act, seeking to implead in Sec. 18 references as the Sub Court had dismissed the said applications. I filed 642 CRPs on the same day. I believe till date it is the record (the same counsel filing 642 cases on the same day).

The admission had to be moved before the Hon’ble
Mr. Justice V. Rathnam. The filing section found it very tough to scrutinize and number. Well, it was done.

When all the CRPs (642) were posted for admission the learned Judge said” Mr. Rao there is absolutely no difficulty in deciding the cases. But the number is only staggering. Mr. U.N.R. Rao said  “my Lord I will be happy if they could be decided early as the O.Ps are coming up for trial shortly before the Sub Court.”

“Mr. Rao I will hear and decide in a week”

The learned Judge directed the counsel for the other side who was present in the court to file Vakalath in a week and after admission the matter was posted for final disposal in two weeks. When the matters were listed it was pointed out not even in 100 cases the otherside counsel had filed Vakalath. The learned Judge said strictly, “Mr. Rao you wanted an early disposal. You also say this counsel only appears in the lower court. Hence we can hear and decide even though Vakalath is not filed, I will call them next week and decide.”

Some of the observations left us in no doubt that the Judge was against impleading. We had arrnaged Dr. Chitale, a Senior counsel from Supreme Court to come and argue. It was argued for nearly 2 hours. Dr. Chitaley cited a reported judgement of Supreme Court which is exactly on the point, under the same Act. The learned Judge reserved orders. No orders were
pronounced for over 2 years.

In the meanwhile we had filed a few Writ Petitions involving the same question and a 3 Judge Bench was constituted to hear and decide the same issue. The Full Bench heard and decided against impleading (1989 WLR).

The next day the Hon’ble Mr. Justice Viswanatha Sastry Rathnam pronounced a one line order in 642 CRPs.

“In view of the Full Bench decision all CRPs are hereby dismissed.”

We went to Supreme Court against both judgements and Supreme Court following its own earlier judgement (which we had cited in the High Court) allowed our cases.

I must only conclude saying “My Lord it is not fair.”

“Tell me a Method”

A Writ Petition was filed questioning the cancellation of an order of allotment of a house site (free of cost) on the ground that allotee converted it into a shop against the conditions of allotment.

Mrs. Nalini Chidambaram, Senior Counsel appeared for the petitioner and argued strenuously that her ‘poor’ client should not be penalized for running a shop. I appeared for the Government and defended the order of cancellation. The matter was heard by the Hon’ble Mr. Justice P.D. Dinakaran. After hearing both of us, the learned Judge turned to me and said
‘Mr. Tamizhmani, now tell me the method to allow the Writ Petition. I won’t dismiss. But you can suggest as to how to allow this.”

It was clear that the case was going to be allowed. I used the chance. I said “kindly set aside the order on condition that the allotment would be cancelled if the petitioner runs a shop again.”

From the instructions given to me it was clear that the Writ Petitioner was living in a big house of his own a few kilo meters away. This area (where it was allotted) is a commercial area; and he politically influenced and got this allotment. The learned Judge did not know this and allowed the writ on the above lines.

The other side was furious against me, naturally.

No My Lord - No counter

All would appreciate that it is extermely difficult to file counter in Writ Petitions when one defends the Government. As a State Law Officer I used to manage without filing counters. Once the Hon’ble Mr. Justice K.P. Sivasubramaniam who is very affectionate towards me asked me “why don’t you file counters.”

The learned Judge was earlier a Government Pleader and knew the difficulties in filing a counter. I replied,

“No My Lord I will not file a counter unless

(a)   there is a specific direction from court or

(b)   there are allegations or malafide pleaded in the writ affidavit.”

The Judge was a little shocked and asked ‘why.’ I replied,

“My Lord the majority of the writ petitions fall under only two categories (a) Mandamus (b) Certiorari. In the case of  mandamus it will be ordered if there is a statutory duty. In the case of certiorari, Supreme Court has repeatedly held that the respondent can not improve his case by giving new or additional reasons in the counter for arriving at the impugned decision. The file and the impugned order should disclose the reasons. I am producing the original file and the order is before your Lordship.”

Though a bit technical the learned Judge accepted the reply and never insisted fo counters thereafter.

“Do You Now Understand”

Late Mr. S. Gopalaratnam, Senior Advocate was intimate to me during his last days. He liked me; I regard  him. But never a day passed without a quarrel; There was nothing personal. But perceptions differed on issues. I have never tried to adjust my views for his sake.

One day he suddenly asked me “Dai do you know why I like you.” The mischief in me surfaced. “Sir, may be I often oppose your views openly.”

“Baddava, know this, that is why I do not like you.”

I did not give up and pursued “Sir, you are not fair, it all started as if you were going to disclose the reason for your special interest in me, but you revealed now why you do not like me.”

The man was so quick witted pat came a reply.

“Tamizhmani, do you now understand people get only what they deserve.”

I was speechless. ....

Chief Justice from another State

The Government of India have taken a policy decision to post the Chief Justice to every State from another State and there is another ancillary policy that one State will have one representation only for Chief Justiceship. In other words from one State (say Tamilnadu or Rajasthan) one Judge only would be posted as Chief Justice in another State. It is only on his retirement or elevation to Supreme Court the senior most Judge of Tamilnadu (or Rajasthan) will be posted as Chief Justice. Both these policy decisions play a havoc.

Only one Judge from one State High Court will be posted as Chief Justice in another State is not followed strictly in the case of “powerful” High Courts like Bombay. In my welcome address of Chief Justice A.P. Shah in the capacity of the President of Madras Bar Association I mentioned it. At that time 3 Judges of Bombay High Court were functioning as Chief
Justice in 3 States (including Chief Justice Shah) whereas no Judge from Madras High Court, a chartered court, was posted as Chief Justice anywhere. The Hon’ble Mr. Justice N. Dinakar, the senior most judge of Madras High Court was waiting for elevation as Chief Justice for nearly six months. I pointed out this in my speech in the official function organized by the High Court itself.

Moreover the Chief Justice who comes from another State does not take any interest in the improvement of the judiciary in the State. Their only concern is they do not want to come to adverse notice of the Hon’ble Judges of the Hon’ble Supreme Court. In short an outsider/chief justice treats this court (every one for that matter) as a ‘transit lounge’ for going to New Delhi.

While I discussed a serious issue with a Chief justice the reply was “Mr. Tamizhmani, you should understand. I am an outsider and am not aware as to who is who and what is, what is not. It may take atleast one year to study the local issues
(including the one I discussed) and take appropriate remedial measures. I know your views about outside chief Justice. You must also appreciate the helplessness of  an outsider and you can not expect me to solve all your decades’ old problems.”

In all fairness I must say the above reply succinctly brings out the real position and Hon’ble Chief Justice was substantially correct.

Another incident that took place in a northern State High Court would demonstrate how helpless is an outside Chief Justice. The Chief Justice, 3 senior Judges and the Registrar were holding a discussion. The Chief Justice directed the Registrar to read aloud the names in the list of promotees in the Subordinate Judiciary. When the 3rd or 4th name was read out the Chief Justice interrupted and asked the Registrar as to how that name not found in the draft list found a place in the final list. Apparently, the Chief Justice has retained a copy of the draft list and compared as the Registrar read out. The Registrar instead of replying spoke something to the second Judge; the second judge replied. Another Judge also voiced his views. All these, ofcourse in their local language and poor outside Chief Justice could not understand. The second Judge started shouting in a high pitch at the Registrar. The  Registrar starred at that Judge and murmured something. All in their local language. As this
meeting turned ugly the Chief Justice called off that.

Later this helpless Chief Justice probed into the matter and found out what happened. After the list was approved the second senior most Judge appears to have instructed the Registrar to include a name not found in the draft promotion list and assured the Registrar that he had secured the consent of Chief Justice already. Hence, a new name was added at the time of typing the list finally. Now coming to the conversation that took place in the local language, it was thus. Registrar turned to the second Judge “Sir, you only asked me to include this name. Now you do not defend me.”

II Judge, “Keep quiet Mr......... just do not reply” Registrar “Sir why should I incur Chief Justice’s displeasure.”

II Judge, “Mr. ............ he will be here only for four months and retire. I am going to be here for over two years; remember that you must come to me only for everyting.”

Registrar ............. angrily murmured something.

Another Judge looking at the Registrar

“You should know your limits and position. Do not let down our Judge.”

The second judge thought Chief Justice will not find out the inclusion since all names in that State are rather peculiar and very much resemble one another. The Chief Justice hadretained a copy of the draft list and verified with the final list since the second judge was very much interested in the illegally included candidate and earlier pleaded with the Chief Justice for inclusion which aroused the suspicion of the
Chief Justice that the final list may not reflect the reality.

That shrewdness saved the Chief Justice. Thus the temple of Justice was guarded against the entry of a demon.

But none is sure how many times this weakness of the Chief Justice viz., the lack of knowledge of the local language had let down that Chief Justice or similar hapless Chief Justices elsewhere. Long live this policy of posting outside Chief Justice.

Policy of Judges Transfer

Another policy followed is transferring Judges from one State to another. To say the least it is, stupid. The worst affected State is our own. At one point of time the first five judges (CJ + 4) were from other States in Madras High Court. All important administrative decisions are taken only by the Senior most Judges in all High Courts. After 1993 the first 3 (CJ + 2) only recommend the names for appointment of High Court Judges. Well, all by Judges from other States.

I shall point out something which would establish beyond any pale of doubt that there is no policy or norms or guidelines and the wholething is whimsical. In a neighbouring State two learned Judges had some differences and the differences persisted. The Hon’ble Supreme Court transferred both of them to our State. If the Hon’ble Supreme Court was honourably
interested in an Hon’ble solution one could have been
transferred retaining the other there. What a wisdom?

Instead of Clearing they are Smearing

It is often said corruption is a major reason for transfer. What an irony? If one were corrupt she/he must be corrected. Where is the assurance that in the transferred State one would turn a new leaf. In my humble opinion it is easier to be otherwise in a new State as compared to his native State where he has roots, relatives, and he is likely to settle down after retirement. The fear of social boycott and loss of reputation may atleast tie the hands and keep them under control. In a new State where he would be serving only for a few years he would only find new routes to indulge in and come back to settle down in the home state decently. Any dust must be cleared and certainly not smeared.

Collective decision of Collegium?

The appointments and transfers of High Court Judges; Chief Justice of every High Court and appointment of Supreme Court Judges is within the exclusive jurisdiction of Hon’ble collegium of the Hon’ble Supreme Court of the Hon’ble India. When I was the Secretary of Madras Bar Association on
18-6-2003 Mr. Sriram Panchu, Senior Advocate casually informed me that Mr. Justice kuldip Singh (Retired Judge S.C.) was at chennai on some official work. I requested him to kindly presuade the Judge to come to Madras Bar Association and speak. Mr. Sriram Panchu was kind enough to bring him to our Association. The learned Judge came to the Association accompanied by Mr. Palanichamy the then State Election Commissioner. He sopke. The highlight of the speech was the collegium of Supreme Court does not at all function in every sense of the matter. There is no set procedure; no norms; nothing worth mentioning is followed. He cited two cases (1) transfer of a Chief Justice of a State and (ii) Elevation of a Judge as Chief Justice to a State. On both the occasions he was a member of Hon’ble Collegium and both informations he learnt by reading newspapers. When he asked the Hon’ble Chief Justice of the Hon’ble Supreme Court about the newspaper
report the Hon’ble Chief Justice curtly said “Yes, I only appointed.” In the second instance another Chief Justice declared that he had decided himself and it was upto Justice Kuldip Singh to go and complain wherever he liked.” This is nothing but the statement (confession?) of a Judge of Supreme Court who is presumed to have (in law) cleared those two cases as a member of the collegium. How wonderful is this?

Outside Chief Justices - Methods

The Hon’ble Chief Justices who come from other States introduce and implement certain procedures followed in their respective States. They are contrary to our established procedures practiced for about 145 years in this chartered High Court. Let me narrate a few.

a)   One Chief Justice directed that the first senior most puisne Judge should sit with him in the First Division Bench and it was claimed to be the practice in his State. It has never been our practice. The Senior Judges here would head 2nd, 3rd  & 4th Division Benchesrespectively.

b) The sitting arrangement for Advocates in the First Court hall in Madras High Court is impressive and it is unique and charming. It is a gallery like arrangement made in fine timber. The bottom of the seats could be pushed back when another Advocate enters the row. A Chief Justice removed all this. Arranged cushion sofas. The first court looked like either a conference hall or air conditioned tea stall. Fortunately, another Chief Justice restored the wooden gallery.

c)   Another Chief Justice directed that case papers like pleadings should not be kept in the bundle form and should be neatly arranged in the file form like office files. Well, lakhs of such files were printed and used. The moment that Chief Justice retired  those costly files were discarded and bundle system was restored. All at the cost of tax payers.

d) Yet another Chief Justice directed a special filing box to be kept for filing cases by the senior citizens. When the Judge left our High Court that box also disappeared.

e)   One Chief Justice directed the creation of a Green Bench on a permanent basis for hearing pollution cases. It was followed as long as long he continued as Chief Justice.

I do not want to add more as my aim is not to show them in bad light. My only view is that the outside Chief Justice should not compel our Bench and Bar to implement systems followed elsewhere.

“I leave it to your Lordship”

This phrase is often heard in the High Court premises. This is pronounced in the most reverential manner so that the Judge is shown to be always right and his view could never be wrong and the Advocates / Bar immensely obey it.

A learned Judge always drew pleasure in not listening but speaking. The learned Judge knew even the names of some of the medicines prescribed for some common ailments. In short medicine was his pet subject.

One young advocate had to argue a Civil Revision Petition under the Rent Control Act. His client, the tenant had lost before both the lower courts. The case was not strong on merits. Moreover the mother tongue of the Advocate being Telugu he was not very fluent in English. Hence he had rehearsed his submissions for admission at home (in English) and appeared before the learned Judge. Because of the eviction order from the house where they have lived for over 40 years and as they were not likely to get a cheap accommodation anywhere nearby the daughter of the tenant became upset and committed suicide. This young advocate thought this may evoke some sympathy from the learned Judge and decided to mention that as a last
submission. If the learned Judge did not agree to admit and grant a stay he had resolved to say

‘I leave it to your lorship’ and sit and accept the dismissal.

The Advocate tried his best for getting admission (also stay) but the Judge did not relent. Hence, the Advocate used his Bramasthra “Mylord, because of this Eviction Order the daughter of the tenant, committed suicide.”

The Judge replied

“What to do; we also will have to commit suicide.”

Without thinking for a minute the Advocate said what he had already rehearsed.

“I leave it to your lordship.”

Half of the advocates ran away from the court hall to gain freedom to laugh.

Some (including me) laughed even by remaining inside. But the entire day the learned Judge did not speak one word extra or smiled.

You Only.................

Late Mr. K. Ashokan, Senior Advocate who passed away on 22.08.2010 had a lucrative practice as both a trial and
appellate lawyer on the criminal side. As a Senior counsel he is not expected to meet the clients and discuss the case.

While he was cross examining a prosecution eye witness in a trial for murder his instructing counsel told him that this witness is an accused in a murder case pending in Chennai before another Sessions court and wanted Mr. K. Ashokan to suggest that the witness is obliging the police by giving false evidence hoping the police would  help in the other case where he himself is an accused. Such imputations are commonly made to weaken the strength and value of the evidence. Mr. K. Ashokan turned to the prosecution witness and said “you are giving evidence in this case because police has promised to help in a murder case pending before the VIII Additional Sessions Court in which you are an accused.”

The witness did not reply immediately. The Junior Counsel of Mr. K. Ashokan was extremely happy that his strategy has worked and the witness was silent. After some hesitation the witness replied to Mr. Ashokan “Sir, you only appared for me in that case and got an acquittal 4 months back.”

The Session Judge could not control his laughters.

A Snake is Always Poisonous

Mr. N. Natarajan, Senior Advocate popularly called ‘NN’ is a counsel of sound criminal knowledge. There are several famous cases in which he had appeared for the defence. He defended the present Chief Minister (Mr. M. Karunanidhi) in the case in which the charge was he attempted to murder
Mrs. Indira the former Prime Minister.

At a considerable personal risk and substantial loss of income he accepted the post of special public prosecutor in the Bombay Blast cases. No one has any doubt his acceptance was only to serve the nation. He represented the CBI.

In terms of the provisions of the code of Criminal
Procedure, only the Public Prosecutor can decide as to
whether to continue the case or close for lack of evidence. Mr. N. Natarajan is one of the finest prosecutors this country has come across. He withdrew a prosecution as he was convinced that there was no evidence. The CBI, true to its colour and quality, filed a case against Mr. N. Natarajan for the withdrawal. Ultimately Supreme Court came to the rescue of Mr. Natarajan and quashed the case against him. Better one thinks twice at least before offering his services to CBI.

“You may reflect it in the Judgement”

Mr. N.R. Chandran, former Advocate General and Senior Advocate is always witty. He never loses his cool. He is always called NRC. I also refer him as NRC for another reason. He is upto date about the Judgements and would always quote the latest verdicts. Hence, I call him Notes of Recent Cases.

He defended the action of the police (he was only
Additional Government Plerader then) in arresting 3 girls from a massage parlour and sealing the parlour. The case was argued before the Hon’ble Mr. Justice S. Mohan. The learned Judge was against the action. He had liberal views. He asked “Government Pleader tell me what did they do; why did police arrest them.” “My Lord they committed nuisance.” “What you mean by nuisance.” “I can not explain my lord. I would only say nuisance.” “Mr. Chandran, then I would say you are also committing nuisance in the court.”

This apparently disturbed NRC.

He said, “My Lord if I commit nuisance I am entitled to do it and your Lordship is entitled to reflect it in your judgement.”

The Hon’ble Mr. Justice S. Mohan did not speak a word thereafter.

Fairness as to what

Late V.P. Raman (Baala for his friends) was a very fair and shrewd lawyer. He was the youngest Public Prosecutor of our State when he occupied that seat. Later he was the Advocate General and also Additional Solicitor General of India. He always spoke briefly. But every word was meaningful.

He appeared for the State as Public Prosecutor in a
Criminal Appeal before High Court. I do not remember the entire facts. But the counsel for the accused who had murdered his wife in a quarrel was trying his best to convince the court that the accused attacked his wife under a sudden and immediate provocation and it was not a planned murder. Despite his best efforts, the court was not ready to accept. After 2 hours he sat tiredly. As Mr. V.P. Raman got up the court asked “So, you want us to confirm the life sentence
Mr. Public Prosecutor?”

Mr. V.P. Raman said “No my lords, it was a murder under a sudden provocation and life sentence is uncalled for.”

The Public Prosecutor read out a portion of the evidence of one eyewitness who had watched the quarrel and murder. The wife (deceased) in a fit of anger had said “I shall not live with you. Rather I would share my bed with a cobbler.”

The Prosecutor explained the community of accused and deceased had its own views about caste system. Particularly in that district in such a remote backward village the above outburst of the wife was more than a sudden provocation. The Judges said that the submission of the Prosecutor is more than fair and reduced the sentence to a few years. Well, Good old days.

Bahasuran or Parasaran

Mr. K. Parasaran, the second person to become Attorney General of India from our State is highly religious and an exponent of Ramayana and Mahabaratha. When he was arguing a matter the Hon’ble Chief Justice Mr. M.N. Chandurkar has asked him to explain promissory estoppel. Mr. Parasaran
without any hesitation replied the promise of Karna to Kundhi Devi not to use the  Asthra and the Arrow for the second time which had cost him his very life was the first act of promissory estoppel. The Chief Justice was taken by surprise at this immediate reply and enjoyed it very much.

When he went to argue a case before Bangalore High Court, Mr. M.N. Krishnamani, now a senior Advocate practising at Delhi brought tiffin from home. When they opened the box they found it very heavy and at least five to six persons could share it. Mr. Parasaran asked “what your family members thought I am a Bahasuran.”

Mr. M.N. Krishnamani was very much embarrassed and to console him Mr. Parasaran disclosed a secret. When he was named in a ceremony held at home as per their family custom the proposed name was intimated into the ears of the senior most lady of their family and she was requested to write the name on the paddy grains spread on the floor of the hall where all the relatives had assembled for this ritual. The lady had some hearing impairment. She nodded her head and wrote “Bahasuran.”

No doubt he proved to be a Bahasuran for his rivals in the profession. He swallowed all.

You are Impatient

Late Mr. N.C. Ragavachari, Senior Advocate was an acknowledged doyen of the original side, (civil trial work in the High Court). He had appeared in several popular cases and a trusted legal adviser to Late Mr. M.G. Ramachandran, former Chief Minister.

He underwent a heart surgery in a city hospital some 28/29 years ago. Those days the period of healing and hospitalization used to take a little longer. Hence Mr. N.C. Ragavachari was pestering his Doctor as to when would he be discharged. Mr. N.C. Ragavachari felt that it was not fair to take rest in the hospital after surgey when a number of his clients (who are to tender evidence) were waiting for his discharge from the hospital. Close relatives of Mr. N.C. Ragavachari had requested the doctor not to discharge him till he was fully fit for resumption of court work. But Mr. N.C. Ragavachari felt highly guilty in taking rest when the cases are getting adjourned. The Doctor was unhappy that Mr. N.C. Ragavachari was nagging him about the discharge every time he went into the room of the patient.

In this background Mr. Justice S. Padmanabhan had undergone a similar surgery at the hands of the same doctor and hospital. The Judge also was in the hospital for over a fortnight. When once during the visit Mr. N.C. Ragavachari slightly changed the question “Doctor when are you going to discharge Justice Padmanabhan?

The Doctor became extremely irritated but was
trying to control himself in view of the age and social
status of Mr. N.C. Ragavachari and kept quiet. Poor
Mr. N.C. Ragavachari thought the doctor did not follow his query. He tried to explain “Doctor, I am asking about Justice Padmanabhan, your patient.” The doctor got the opportunity to retort “Yes, I know he is my patient, you are impatient.”

Mr. N.C. Ragavachari never opened the issue of his discharge thereafter.

My Car runs on human Power

:Late Mr. P. Narashima Iyyer had a lucrative practice at Sivaganga and Devakotta. He was a known civil lawyer and a close follower of Rajaji. He shifted to Madras High Court later and was in the Office of the Hon’ble Mr. Justice A.R. Lakshmanan. In fact he helped a lot in shaping and training Mr. A.R.L. Sundaresan, now a successful senior lawyer.

Once he had an injunction application before a Devakottai Court, around 11.00 a.m. his junior took a short pass over on the gound that Mr. Iyer had left Sivaganga already in Car. The matter was called thrice thereafter and the junior wanted pass over on the same ground. The Judge was irritated. Finally a tired Mr. Narashima Iyer appeared in the court around 4 p.m.

An agitated Judge asked him

“What Mr. Iyer, it is hardly 30 miles and my car takes only 90 minutes to cover the distance, but your car seems to take 5 hours, why.”

“Your honour, your car runs on horse power and my car moves on human power.”

“What Mr. Iyer what are saying, it is baffling.”

“Your honour your car is new and runs on the determined horse power. Mine is very old. It stopped at several places, we had to get down and push viz., moved only on human power; that is the reason.”

The court was impressed with this. Needless to say he got the injunction order without any great argument.