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.