IT is highly instructive to sit in any court at precisely 10 every morning. The first order of business before most judges in a High Court every day is to hear the freshly filed cases and to consider whether to entertain the petition or appeal, or whether to dismiss the case out of hand immediately.

Typically, a lawyer has just a few minutes to make out a case and try to convince the judge of the validity of the cause he is pleading. In those cases which make the cut and are not thrown out immediately, it is now usual for the judge to put the other side on notice (or in legal parlance, to issue a “notice of motion”) and thereby to call them on a future date to appear and rebut the petitioner or the appellant’s lawyer.

This system of issuing a notice in order to hear the other side before admitting a case for hearing at length was initially meant to weed out frivolous or patently unsustainable cases and prevent them from clogging the courts’ docket. But now this system has degenerated to the extent that the fresh “motion” cases take up most part of a judge’s working day and leave him very little time to hear the “admitted” or “regular” cases which require in-depth consideration.

In a violent departure from the intent behind this system of issuing a “notice of motion”, it has become the norm for a majority of the cases filed in the High Court to be carried on the “motion” docket for many years rather than being “admitted” or “dismissed” swiftly.

This is not, however, the main reason for the insurmountable pendency of cases which the High Court is faced with. The real reason why cases continue to pile up and the reason why one hears of lawyers and litigants going to great lengths to delay the adjudication of the cases by the courts is the practice of appending the vexatious sentence “stay operation meanwhile” to the initial order putting the other side on notice.

It has become a commonplace practice for the judges, who are presented with petitions or appeals against the orders or judgments of inferior courts, to direct that the order or judgment which has been challenged shall not be given effect to and shall be kept in abeyance until further orders. The hitherto successful respondent who finds himself called to the High Court even after winning a tortuous legal battle in one or multiple subordinate courts suddenly finds that the other side has managed to get his foot in the door in the High Court; and all the words of wisdom and the reasons hitherto marshalled by the judges in the lower courts are set to naught by this “stay” order.

An order by a High Court judge to “stay” a subordinate court’s order is nothing but a vote of no-confidence in that subordinate judge. Take an example here. Let us say that a landlord files a case against his tenant seeking his eviction from some rented premises. Let us say that the tenant puts up a spirited defence before the court of the Rent Controller but is unsuccessful. The tenant, who has been ordered to vacate the premises now files an appeal before the Appellate Authority who immediately “stays” the order of eviction and proceeds to decide the appeal — over a period of a few years usually. Now even if the landlord is successful in repelling the appeal filed by the tenant, the tenant has the right to file a revision petition before the High Court.

At this third stage in the course of the litigation, the High Court is well aware that the tenant has already been ordered to be evicted by at least two judges who function lawfully under the direct control of the High Court. Still, if the tenant’s lawyer is able to make out even the semblance of a case – on a technical ground or rarely on some substantive issue – then the High Court judge is almost guaranteed to once again stay the judgments ordering the tenant’s eviction. Having secured this order of “stay”, neither the tenant nor his counsel is going to be in any pressing urgency to have the petition heard and decided at any early date.

The order of stay is an embarrassment for the judge against whose judgment the High Court passes the order. The order of stay is a preliminary finding on the part of the High Court judge that the subordinate judge seems to have made a mistake and ought not to have decided the way he has. It goes to the very judicial competence of the subordinate judge and casts his ability, integrity and impartiality into doubt.

Needless to say, if the High Court feels that a particular subordinate judge is consistently ignoring the law or deciding wrongly, it is open to the High Court to discipline the judge or even withdraw work from him. This logical approach is unfortunately shunned in favor of “righting the wrongs” of a bad judge by staying his judgments and burdening the High Court with additional work and reopening the case for re-examining the facts.

The very fact that a judge has given a patient hearing to a case and has delivered a judgment ought to inspire sufficient confidence in the mind of a superior court’s judge that justice has been done. It ought to be presumed that the judgment of the subordinate judge must be correct and must have been arrived at after due legal assistance from the counsel on either side.

In reality, however, it is usually presumed by the judge issuing a notice of motion that the subordinate court lawyers as well as judges are incompetent and unless the High Court intervenes, no justice would be done. It is presumed by superior courts that allowing the judgment of the lower court to be implemented expeditiously would necessarily result in a miscarriage of justice.

The filing of an appeal is an attack on a lawfully delivered verdict and must never be treated as a routine affair, for if successful the appeal or revision exposes a miscarriage of justice. The reversal of a judgment by a higher or appellate court must be viewed as a very serious failure on the part of a subordinate judge and not treated as casually as it is these days.

To ensure that litigants and their lawyers do not indulge in speculative litigation or frivolous tactics, to restore the respect and authority of the subordinate judiciary, indeed to curb the enormous backlog of cases, it is imperative that the passing of stay orders in routine is deprecated.

The procedural law which is on the statute books provides sufficient protection for a person who is genuinely aggrieved of a judicially bad order or judgment to approach a superior court expeditiously and to secure a speedy reversal. There can be no justification, therefore, to condemn the subordinate judge and to doubt his judgment in the few minutes that the judge gets to hear the case on the very first occasion that the petition or appeal is set before him.

This self-discipline which the superior judges must exercise is by far the simplest and the most effective way to curtail the litigious rut our society is falling into and to restore the function of the constitutional courts to their correct role.

The passing of stay orders as a matter of routine undermines the authority of the subordinate judges and turns the multiple rounds of hotly contested litigation before subordinate courts into a mere formality which litigants must endure before finally getting justice in the High Courts.

(Published in The Tribune – Monday, October 26 2009)

A folk-State should in the first place raise matrimony from the level of being a constant scandal to the race. The State should consecrate it as an institution which is called upon to produce creatures made in the likeness of the Lord and not create monsters that are a mixture of man and ape. The protest which is put forward in the name of humanity does not fit the mouth of a generation that makes it possible for the most depraved degenerates to propagate themselves, thereby imposing unspeakable suffering on their own products and their contemporaries, while on the other hand contraceptives are permitted and sold in every drug store and even by street hawkers, so that babies should not be born even among the healthiest of our people.

Mein Kampf, Volume 2, Chapter 2. Adolf Hitler

Hitler was first and foremost a believer in the racial supremacy of the German people and obsessed with the idea of a pure race, physically and mentally perfect. In Mein Kampf, he bemoaned the loss of what he called Germanic ethos and rededicated himself to the goal of a Germany in which there would only be pure blooded individuals, conforming to his vision of a mentally and physically perfect race.

Disconcerting echoes of this ideal of physical and mental superiority were heard in courtroom № 11 in the Punjab and Haryana High Court earlier this month.

The court was hearing the arguments concerning the fate of an unborn child, conceived in the womb of a person who was possibly of unsound mind, and who it was said could not discharge the onus that society places on a mother.

The child was not the result of a union of love or even of consensual lust – the child was the result of one or more heinous rapes perpetrated on the unwitting woman. The child was the result of the failure of the Union Territory of Chandigarh to protect a person it had labeled retarded and whose safety and welfare was its primary duty.

But what was in issue in courtroom № 11 was not the question of whether the woman had been raped or not; nor even the question of what punishment should society mete out to those guilty of violating a defenseless woman. The question that had been brought before the court by the guardian and representative of the people was whether or not to pass the death sentence on the unborn child of the destitute woman.

The law recognizes several situations where an abortion is legal and acceptable. The acceptable reasons for an abortion include the decision of the woman herself (in case she was raped or if the contraceptive she used failed – causing her grave mental anguish) and also cases where the continuation of the pregnancy poses an imminent and real danger to the life of the mother. In this particular case however, the pregnant woman was said to be mentally unsound – her mental condition was described to the court, to be that of a 6 or 7 year old child. It was therefore argued most ably and most unfortunately by the high representative of the society at large that her inability to appreciate the joys of motherhood, or her inability to look after the child would impose an undue burden on society and the baby must therefore be killed before it had drawn a single breath in this, which is claimed to be the land of compassion and kindness.

The counsel for the Union Territory of Chandigarh was at his eloquent – and verbose – best when he argued in favour of abortion. The underlying subtext was there for all to see – the woman is retarded and herself a destitute burden on society – the child is likely to be retarded and an even greater burden on society – no one would be benefitted by letting the child live. So kill it.

What was unsaid or perhaps unappreciated in court over the several days that the doyens of the legal professions argued, even as the miracle of nature was taking shape in that woman’s womb, was that the only and the sole reason for the existence of the state is to protect its citizens and to provide them with all that they need to live with dignity and in peace. It remained unstated in court that while executing the social contract, we – the people – did not sign over the right to be killed, terrorized or needlessly incarcerated on the whims of the Leviathan.

Having failed in its primary duty to protect the weak and the infirm, how could the Union Territory of Chandigarh possibly hide behind callous statements in the doctors’ reports that “She did not volunteer for sex and did not like the sexual act” in order to avoid its further duty to the woman and her unborn child?

What was probably not urged before the Judges and what the judgment does not therefore say is that every child who is conceived has the right to attain an identity distinct of its mother – the right of being born. The exceptions that we as a people have carved out are only three-fold. Either the mother must not be desirous of giving birth; or the pregnancy threatens her very life. The last exception being, that there is credible medical evidence that the child is going to be born with congenital defects so grave, that it would be cruel to bring him or her into this world.

The second and third exceptions were clearly ruled out by the doctors’ reports. Shorn of the unnecessary and obfuscatory text, the doctors clearly said that there was no reason to believe that the child was likely to be handicapped or retarded; and that there was no reason to believe that the woman’s life was endangered.

The only limb of the exceptions left was the issue of the desire of the mother. The law gives the state the right to stand in as the guardian or the parent of a destitute, who is said to be suffering from mental retardation, to express her mind. So in this case, it was deemed that the alleged mental retardation of the woman precluded her from giving her consent to the continuation of the pregnancy and her statement that she wanted the baby was therefore discounted as irresponsible.

Without going into the complex issues of morality and legality incidental to such a stand, it was lost sight of in the court that the culmination of a pregnancy in a birth is the rule and an abortion merely the exception. The exception is invoked in limited cases – and only where there is a conscious desire arising from mental or physical trauma or necessity to invoke it. No consent – maternal or medical – is required to proceed with a pregnancy. But a conscious decision to terminate it is the essential requirement for an abortion.

In the case at hand, standing in as the parent of the unfortunate violated woman, the state urged the court to order termination. The reasons for such a prayer are most unfortunate and most unconscionable.

The first reason was that she was a destitute woman, incapable of looking after herself and therefore incapable of looking after the child. The second was that the child was the consequence of a rape. The third was that the child would be a perpetual burden on society. Another reason invoked was of her being unable to financially provide for herself or her child.

None of these reasons can stand in the way of the child being born. It is the sole function and Raison d’être of the state to provide for and to raise and nurture such people. The state which cannot look after its unfortunate is a state which has lost its conscience and a state which has lost its moral right to be called a state.

The unfortunate judgment sums up thus “We also can not over-look the fact that if allowed to be born, the child’s own life, grooming and future prospects may itself be highly disappointing.” These words “allowed to be born” are chilling and speak volumes about the assistance which was rendered to the court. No child is required to petition a court for the right or permission to be born. No court – legal, ecclesiastical, social or otherwise – can arrogate to itself the right to allow or disallow children from being born.

The conclusion “For the reasons stated above and in continuity of our previous order dated 9th June, 2009, we direct the petitioner- Administration to act promptly and forthwith medically terminate the pregnancy of the victim in terms of Para 38 of our previous order dated 9th June, 2009.” is an indictment and a death sentence pronounced on a child who has yet to be born, for some unnamed offence that he or she cannot even comprehend. It flies in the face of each and every theory of human rights and in the face of humanity itself.

The sum total of the judgment is an eerie and frightening resonance of the desirability of the qualities that Hitler expressed in his manifesto. It is an affirmation that this woman and her unborn child are “monsters that are a mixture of man and ape” and not in the “likeness of the Lord”.

Judgments, it is said, are a reflection not of the judges’ intellect or capacities. Judgments are a reflection of the assistance received by a judge in the court. Bad cases and bad submissions make for bad judgments and horrendous precedents. By all standards of legal standards and morality, this judgment was an abomination.

(July 24, 2009)

High Court’s Judgment

Article published in The Tribune – August 8, 2009

While condemning the terrorists as being undeserving of the protection of human rights, he said that human rights activists ought not to waste their time agitating for providing even a modicum of rights to these animals. These words would per se be quite unwelcome from anyone, but coming from one of the twenty-four guardians of our democracy, they are alarming.

With all respect due to the judge, I must differ. The basic minimal set of rights, available even to the most depraved criminal or the perpetrator of the most heinous terrorist crimes, is also a sacred charge on humanity and must never be allowed to be stripped, on pain of losing the very essence of humanity.

Near the end of the Second World War, many prominent wartime premiers and world leaders went public with vitriolic anger and demanded that the Nazi war criminals should be hunted down like vermin and be shot on sight or hung from the nearest electric pole without any trial. The logic employed by Churchill and his counterparts in Europe and in the US bears uncanny similarity to the sentiment echoed by the learned judge.

The thesis regurgitated by the judge is that by committing certain acts the perpetrators – Nazis in the case of Churchill et. al. and the terrorists in the case of the learned judge – have breached the boundaries of humanity and are therefore fair game for vigilante justice. The proponents of this doctrine seek to strip the Nazis/terrorists of their very human characteristics and declare them beyond the reach of humanity, outside the confines of law and thus non-human for all intents and purposes. Once this conceptual barrier of conscience has been breached, it is only a short step away from declaring the lives of these people forfeit without any further formalities; declaring that these people may be treated in any manner, killed or maimed or otherwise abused, by any and all, without fear of retribution by the law or the society.

This is a very dangerous concept and an extremely perilous conceptual jump. No law or human custom in current times sanctions such a de-humanizing process. Even the bloodthirsty post-WW2 leaders were thankfully detracted from rushing down this downhill slope by Henry Stimson who managed to convince the newly elected US president Harry Truman to prevail upon the allies to conduct war trials in Nuremberg and Tokyo instead.

The ensuing trials before the International Military Tribunal for the Far East (IMTFE) and the International Military Tribunal at Nuremberg thus stand testimony to the renewed commitment of even the victims of the most horrendous crimes to the principles of humanity and human rights. Even those who had marched endless streams of the wretched into gas chambers at Auschwitz and Dachau were afforded a trial and were given the benefit of a decent defense. The efforts of Harry E. Clarke at the IMTFE are a tribute to the rule of law. From the ashes of a shattered world, Colonel Harry E. Clarke who was a serving US military officer deputed to defend the accused in Tokyo not only put up a spirited defense for one of the prime accused, General Yamashita but also reiterated the need for fairplay and due process even for the alleged perpetrators of the worst atrocities mankind had seen till that time. This serving army officer who had been a part of the war effort believed in the need for fair trials and even went to the extent of appealing the decision of the military tribunal before the US Supreme Court.

The learned judge would also be well advised to reread the intriguing episodes of Justice Radhabinod Pal, the Indian judge who was nominated to the IMTFE and of Justice Jaranilla who was himself a victim of the infamous Bataan Death March where 76,000 of his compatriots were forced to march across the unforgiving jungles of Philippines, of which only 54,000 survived.

While history remembers Jaranilla as a man consumed with hatred against the Japanese and who had vowed to convict and condemn each of the accused tried before him, Justice Pal had the strength of character and the capacity not just to decide according to his conviction but even to return the bow of the accused as they entered the courtroom each day of the trial.

A judge must not be seen to be an intemperate or harsh or opinionated person. Let me correct that sentence: A judge must not be an intemperate or harsh or opinionated person. Each case tried by him, each accused who is presented before him depends upon the judge’s strength of character to give him the benefit of the presumption of innocence. A judge who has already made up his mind one way or the other can scarcely be objective or judge while remaining honest to the oath he has sworn.

The learned judge may also like to revisit the adage about one man’s terrorist being another man’s freedom fighter. Wise men tell us that a person’s actions must be viewed in the totality of the circumstances. Nelson Mandela and even our nationally revered Bhagat Singh and Mangal Pandey were strictly speaking, terrorists if viewed from the strict perspective enunciated by the judge. These freedom fighters were offering organised resistance against the de jure government of the time and had adopted violent means to express their dissatisfaction. They were committed to overthrowing the extant government and were willing to resort to any means they could lay their hands on. Shubash Chander Bose’s Azad Hind Fauj was not averse even to collaborate with Hitler to achieve independence for India.

Needless to add, the First War of Independence is still called the Mutiny of 1857 by those who were at the receiving end. The violence of the Umkhonto we Sizwe is still a touchy subject for the Boers and other South Africans and must still be weighing on the conscience of its one-time commander, Nelson Mandela, even if infrequently. The victims of the Nazi Pogrom would not be averse to treating Bose with the same contempt and hatred reserved for the Italian Benito Mussolini or the other Nazi collaborators.

Would the judge condemn unheard Bose and Bhagat Singh and Mandela and the scores of others whose struggles succeeded, at the same time he condemns the terrorists he has prejudged as animals today?

A judge of the Supreme Court is the last word on the law. Article 141 of the Indian Constitution has traditionally been interpreted to mean that a pronouncement in court by a Supreme Court judge is the binding law for all courts in India. In this context, we must confess that there is scarcely any trial judge or High Court today which can remain unaffected by the intemperate outburst of the Judge.

We must therefore work harder now to ensure that the unlawful reluctance of the lawyers to defend the accused, compounded by this sharp outburst does not result in a faulty verdict in the case. International law accepts, and even the Rome Statute of the International Criminal Court impeaches and does not accept a domestic legal order which is unwilling or unable to guarantee a fair trial.

Maybe as an exception therefore we must show our commitment to law by turning over the trial to the ICC. Maybe judges need to be reminded by their peers and their predecessors time and again that having taken an oath, a person becomes a judge – and remains a judge all twenty four hours of the day till such time he lays down his office. His conduct within and outside the courtroom must always be judicious and in consonance with the letter and spirit of the law. A judge, especially one sworn to act as the guardian of our constitution and the very life and liberty of each citizen of India, should perhaps be a dove rather than a hawk.

(May 13, 2009)

The buying and selling of property is for the most part an experience composed in equal parts of mystery, awe, optimism and foreboding. Most buyers who end up in the property markets are treated to the same creed of clichés.

• It’s a seller’s market
• The property prices have shot up considerably
• The reports of the decline in prices are exaggerated and in any case relate to some other place
• There are just a very few properties up for sale
• I have only one last property left which is within your miserable budget and it is being chased by hordes of buyers brandishing fistfuls of ready cash
• You have to sign on the dotted line right now, or you will lose the property and / or forego the massive discount we are offering at the moment
• And don’t bother to read the contract – it’s a standard form and we get everyone to sign it.

There must be a special section reserved in purgatory for these really reckless realtors who manage to find enough gullible optimists and sell them plots which exist literally and not just figuratively in midair even before the ground underneath has been broken.

The recessionary trends of late have however brought the residents of these future properties crashing down to the earth with a not very pleasant thud. Realtors and developers are reneging on promises by the dozen and there are scores of people who find themselves seeking legal counsel and thereafter crying over the extremely unfair and one-sided contracts they have signed.

The conditions in most of the real estate contracts that one comes across these days are absolutely unconscionable of course. There are contracts which allow builders to delay and defer the construction, completion and handover of flats and houses almost till eternity. There are those contracts which can be annulled by the disgruntled buyer only on the pain of losing not just the interest on the money they had forked over to the developer, but in some cases even the principal amount itself. And then there are those contracts, upon reading which you can immediately conjure up images of a bunch of twisted lawyers and realtors sitting around a table in a dark room cackling with joy at the nightmarish terms and conditions that have dreamt up. One even comes across contracts which allow the buyer a slight window of time to protest the delay or non-delivery of the property beyond which the contracts bind the buyer down with yards of legalese which amounts essentially to denuding them of all legal rights.

Unfortunately enough contracts once signed have the force of law behind them. The law commands you to obey the terms and conditions of the contract you have set your hands to, without affording you the excuse that you did not read the conditions properly at the time. The law has no patience for people willing to profit from windfalls but who blanch at unanticipated losses.

Fortunately however, the law does not tolerate inequity either. If a contract is the result of a fraud or a misrepresentation, it can be cast aside; if a developer or realtor has not told you the truth he cannot profit from it.

But most importantly, the law also recognizes that at times a person may be forced to enter into a contract which is patently and obviously one sided and which is grossly unfair. The law disallows and bars sellers and traders from indulging in what lawyers call “Unfair Trade Practices”. So even if a property agent got you to sign a contract claiming that it was a standard industry practice and form, it remains open for you to show a court of law or an arbitrator that even that so called standard form and practice are deceptive, manipulative or even a result of a cartelization of the sellers.

If you are the not-so-proud owner of a flat or house which exists solely in the imagination of your seller, then notwithstanding that the contract effectively ties you down and leaves you no recourse, you may still be able to have the restrictive covenants and conditions set aside. Your case is even stronger if you can show that yours is not a stray case.

These remedies are exceptions to the general, statutory and common-law laws of contracts and are an effective solution for one who feels cheated or unfairly bound down. Oppressive contracts are repugnant to the law and for that reason, untenable in a courtroom or before an arbitrator.

It is not sufficient for a seller or developer to brandish your signature on a lengthy contract to denude and strip you of your rights. The written word of a contract is sacrosanct but there are very exceptions to the rule and the litany of woes of many who have purchased homes resting on etheric foundations seems, in my opinion, a worthy reason to challenge the sanctimonious sellers.

The first step in your attempt to get any relief would be to have your contract read over. The sooner you do this, the better it would be to avoid any possible pleas of limitation or “time-barred” by the other side. If you are not so fortunate as to be able to spot any clause in the documentation which may help you get what you want, you would need to study what methods for redressal are mentioned in the document. If a contract is silent about the mode of resolution of any dispute, you would have an array of options including the filing of a civil suit, a consumer complaint etc. before an appropriate court. If however the contract mandates arbitration, then your remedy would lie before such a person. Most contracts one comes across however nominate the seller’s own officer or associate as the sole arbitrator and for which reason it is hardly likely that you would get an arbitrator’s judgment (called the “award”) which is likely to explore the larger issues of duress, false promises, monopolistic or unfair trade practices etc.

A much better option might conceivably be a “class action” before a superior court which may explore these issues and eschew the arbitral clause and strike down the oppressive conditions which make the contract contrary to public policy. A class action, or a representative action would have the advantage of not just exposing the malpractices which afflict the realty sector today, but also invite guidelines from a court or even better, prod the legislature out of its lethargy in order to better protect buyers.

As back as in 1916 the learned New York Court of Appeals judge Benjamin Cardozo laid the foundation for Caveat Venditor. Sellers, beware.

(Published in HT Estates, 18th April 2009)

On a clear Baisakhi day in Anandpur Sahib in 1699, the great warrior and saint, Sri Guru Gobind Singh Ji founded the Khalsa. The Khalsa, he explained, was the martial arm of the faith that Guru Nanak had established just a few short centuries ago. The creation of the Khalsa, he emphasized, was to provide protection to the weak from tyranny and to enforce a sense of discipline in the Akal Purakh Ki Fauj – the army of the almighty Lord. The tenth Guru blessed and praised his army of saint soldiers and wrote

Khalsa is God’s Army

It’s sustained by the Will of the Almighty

While the Khalsa remains pure

I will give it all my strength

When they mimic the habits of others

I will not offer it my assistance.

As the rightful successor of Guru Nanak Dev Ji, the Guru created this righteous army from amongst those who had answered the Guru’s call and had become a part of the Sikh faith and religion. By creating the Khalsa, the Guru did not repudiate or reject the piety or the faith of the Sikh masses – rather, he created a subset of the Sikhs whom he charged with the onerous responsibility of living their lives strictly in accordance with the military code of conduct and the uniform that the times demanded.

Interestingly, the essence of the induction of the Panj Pyare into the Khalsa Panth was not the adoption of the five K’s. It was the baptism with Amrit which was the defining moment of the Khalsa. Having administered the Amrit to the Panj Pyare, the Guru went on to become the sixth person to become a part of the Khalsa. Tradition tells us that the sharp edge of the Amrit that the Guru had prepared was tempered with the sweetness of the sweets added by the Guru’s wife. Baptism was thus supposed to infuse not just enormous courage and a fighting spirit in the Khalsa, but also compassion and empathy.

At no point of time in that assembly or even thereafter was the decision to be baptized into the Khalsa fostered onto any follower of Guru Nanak or his successors. The masses that had assembled at Anandpur Sahib on that day voluntarily chose to follow their spiritual and military leader into the Khalsa Panth.

The creation of the Khalsa by Guru Gobind Singh Ji was not a repudiation of the Sikh faith. In Guru Nanak Dev Ji’s times there was no occasion for the saint to take up arms – to defend himself or any others against persecution.

Guru Nanak had found sufficient reason and need to discourse with exponents of the Sufi way of life, saints following in the tradition of Prophet Mohammed, the Hindu Sadhus and sants as well as the learned men of every other denomination throughout his four great expeditions. Having distilled the essence of each faith, he gave it the name and form of the Sikh religion.

His Sikh were a classless class of people who had given up ritualism and unscientific superstition and who accepted the existence of the one God. A God whose essence could be found in the very forces of nature, whose fragrance was present in every living being and whose footprints could be found in every inanimate thing.

Guru Nanak’s Sikh was the perpetual student. Indeed, the word itself connotes a seeker of knowledge, engaged in this perpetual quest, ending only when one attains brahm gyan or enlightenment. Guru Nanak preached the presence of that infinite God in everything, including the very forces of nature. He exalted the wind as the teacher, the waters as the father and the earth itself as the mother while describing the lord.

Guru Nanak’s teachings and philosophy were wholly inclusive and one did not need to conform to one or the other method or system in order to find place at his feet. Many of his closest associates and disciples retained their linkages with other schools of theology or religion and even their accession to his nouvelle religion was a mere formality at a later point in time. They did not cease to be Sikh only because they followed him imperfectly.

The later Gurus, notably Guru Hargobind lived in times which demanded not just practice of Piri or piety, but also exercise of Miri or temporal power. As the defenders of the downtrodden, they bore on themselves the brunt of the retaliation by the rulers of those times.

The question which now begs to be asked is whether Guru Gobind Singh Ji’s Khalsa is in para materia with Guru Nanak Dev Ji’s Sikh? Is it the case of the custodians of the religion today, that by establishing the Khalsa, Guru Gobind Singh Ji repudiated the very concept and existence of the Sikh; or that the strict definition of the Khalsa is to be read as the new definition of Sikh, replacing that which Guru Nanak Dev Ji formulated?

I find it difficult to believe that the tenth master would have destroyed the benign, compassionate and expansive religion created by the first master. I find it difficult also to believe that those who tread the path of all the ten masters without drinking at the baptismal font would be damned into a Godless existence, denied even the right to call themselves Sikhs.

I like to think that the Sikh and the Khalsa constitute concentric circles. There is a vast circle constituting the Sikh, not excluding people of all faiths religions and beliefs, and including those who have eschewed superstition or other vices proscribed by the first nine masters. Within this larger circle, revolving around the same fulcrum, that is the collective wisdom of the Gurus, is a smaller circle consisting of those braves who answered the tenth Guru’s clarion call for a class of warriors. Possibly, even within this smaller concentric circle, you could also place another smaller circle, of the Nihangs – the fearless who fight with utmost faith and the tenacity and strength of crocodiles.

There is no gainsaying that the Nihang who have been oft described as the vanguard of the Khalsa is also an intrinsic part of the Sikh faith. For a Nihang to denounce every non-Nihang as a non-Khalsa would be as deplorable as for every Khalsa to denounce an unbaptised follower of the great masters as Patit. It may be an oversimplification, but it makes sense to think of the Sikh as the entire population of the country, the Khalsa its glorious army and maybe the Nihangs as the elite units within the army.

The word Patit itself is most derogatory and conjures up images of the damned – the hopeless, those incapable of finding mercy before the Lord and those who are condemned for eternity. To apply this harsh descriptive to someone who believes in the words of the great masters, who abjures every vice mentioned in the holy texts, who shuns unscientific and superstitious nonsense, is most unjust and painful.

Some scholars say that after three days of being submerged in the Bein River, the young boy Nanak emerged as the enlightened Guru Nanak. His first words thereafter were Ek Onkar. Scholars, religious teachers and the wise say that having uttered these words, the Guru had said all that was to be said. The entire Brahm Gyan vests in these two short words. But because the key to these powerful words is not possessed by those of us who are far from enlightenment, he proceeded thereafter throughout his life to interpret and simplify that Godly message for the benefit of the masses. Each verse in each composition of every one of the Gurus is an exposition of this message which echoes throughout the universe, which the enlightened Guru Nanak received, and which they tried to pass on to us.

It cannot be said that the message passed on by Guru Nanak was incomplete. It cannot be said that the successive Gurus repudiated any part of the message and the wisdom passed on by their predecessors. It can also not be anyone’s case that the later teachers improved on the earlier teachers for any reason. The teachings and the way of life preached by each and every one of the Gurus has to be harmoniously read together.

It is important to remember that the Gurus hardly ever condemned or tried to convert someone who had not adopted their ways or their form. The savior of the oppressed Kashmiri Pandits did not require them to become a part of the Sikh religion before seeking his help. It is therefore quite tragic that the Sikh and the Khalsa are sought to be projected as one and the same, and those who are not baptized and those who do not become a part of the Lord’s army are denigrated as Patit.

The Sikh religion was always an inclusive and benevolent religion. It was said that to believe in the one God and to lead a life shorn of deceit was in and by itself sufficient to make you a worth Sikh of the Gurus. If one elected to be baptized in the way of the tenth Guru, so much the better. Even historically, most families in the region used to have the eldest male child baptized and made a part of the Khalsa.

The Khalsa lead a purer way of  life undoubtedly but even so, cannot claim moral or religious or other superiority over all others. This conceit would undermine the very essence of what a Khalsa ought to be.

What also seems to have been forgotten is that the defining criterion of the Khalsa in not just the external accoutrements but the very act of baptism. Many of those who inexplicably confuse the distinction between a Sikh and a Khalsa, claiming to be a part of the latter, are neither baptized nor adhere to the maryada in their personal lives. The dichotomy between the public and private persona of some is an open secret and defies credibility.

It only takes a moment to glance at the opening words of the Sikh Gurudwaras Act 1925 to resolve the dilemma that many Sikh have found themselves to be in. The law passed by the British all those years ago cannot and does not regulate matters of faith and religion. The Act says that is has been enacted to provide for the better administration of certain Sikh Gurudwaras and for inquiries into matters connected therewith.

The statutory enactment is clearly only for better management of the Gurudwaras. It neither confers nor pretends to confer any legitimacy to any spiritual authority nor lays down a list of do’s and don’ts for being entitled to call oneself a Sikh. It contains a definition of the word Sikh only for the express purposes of establishing a committee for the management of these places of worship and eradicating certain malpractices and corruption which had started to be noticed. Interestingly, the disqualifications disentitling a person to take a place on a committee not only include the consumption of alcohol, but also insolvency, inability to read and write Gurumukhi and being an unbaptised Keshadhari Sikh. To all intents and purposes, the enactment is more of a tool to provide for the control and management of the generous donations collected in the Gurudwaras than for any other purpose.

How can an enactment by the Governor General of India in August 1925 determine whether or not a person is a Sikh at heart or not? How can a person who holds the teaching and ideals of Guru Nanak and his successors be called a patit? How can it be said that a person who has internalized the teachings of his masters but has not been formally baptized into the Khalsa is unworthy of the grace of the teachers and of the Lord?

Questions of piety and religion and emotions cannot be the subject matter of legislation or litigation. The question of control over the drawstrings of the purse is of course squarely within the domains of the law. Whether a young boy trims his beard or cuts his hair; or a young girl has her arms or legs waxed or eyebrows plucked is far less important than inculcating in them the values cherished by the Gurus.

It may be of great concern today to some, whether the boy with shorn hair or the girl with plucked eyebrows is given admission in a college run out of money donated in a Gurudwaras by the baptized and the unbaptised, but let us not insult their faith and their devotion to the way of life shown by the Gurus.

The Gurus were always ready to adopt worthy ideas, thoughts, ideals and hymns from those professing other faiths. In that spirit, in the ongoing debate, would it not be appropriate to take a worthy idea from yet another great book and to suggest that let him who is truly Khalas cast the first stone?

(25 February 2009)

IN our eagerness to blame the mess, which the Indian justice administration system is currently faced with, on the judiciary, we frequently neglect to attribute the blame to where it rightly belongs – the lawyers.

The media of late has been reporting unhesitatingly incidents where lawyers have gone on the rampage, even on court premises. Images of ruffians wearing black coats and bands smashing furniture and clashing with the police have unfortunately become all too common on television.

It is not uncommon to find a mob of these “officers of the court” manhandling people accused of crimes in an apparent exhibition of moral outrage against their alleged heinous deeds. Each such report and each such unrestrained exhibition of hooliganism is acting as the proverbial additional nail in the coffin of the Indian judicial system.

Chief Justice SS Sodhi’s recent book “The Other Side of Justice” documents events which seem straight out of a Bollywood masala movie. The idea that lawyers affiliated to the Bar of one of the oldest high courts in the country could actually stampede and behave no better than common criminals, and with as much impunity, is shocking and ought to send alarm bells ringing everywhere.

The can of worms that the retired Chief Justice has opened is a clear signal that there is something terribly wrong with the way that we are training law students or calling them to the Bar.

In order to be called to the Bar in most “advanced” countries, a mere law degree is not considered sufficient. The entry barriers to the legal profession have been deliberately set sufficiently high as to preclude the entrance of any person unfit to participate in what is still regarded in those countries as a noble profession.

Legal education imparted in most law colleges in India is in itself shameful. “Professors” of law who have not published a single academic paper after having managed to get employed, or whose predated knowledge of the law is woefully inadequate, teach students only theoretical aspects of law. There is no forum or institute, nor any course or specialised training which a student has to undergo in order to make the transition from a law graduate to a lawyer.

The issuance of a law licence by the Bar Council too is a mere formality. There is no requirement for a law graduate to acquire any advocacy skills, to learn court etiquette or manners, or even have any knowledge of the law. If a person has been awarded an LL.B. degree by a university, he has the right to appear even before the Supreme Court of India the same day he gets his law licence.

Incredible as that may seem, it is nothing in comparison to the fact that Bar Councils like the Bar Council of Punjab and Haryana have also implemented a “tatkal” scheme for obtaining a law licence. If you pay an extra three thousand rupees on top of the six or seven thousand rupees normally charged, you are guaranteed your law licence within 24 hours.

A scheme enacted some years ago by the Bar Council required fresh law graduates to work with established lawyers for a year before being awarded the licence – and was predictably met with a huge outcry from the Bar as well as from the student community and was abandoned soon afterwards.

It is hardly surprising, therefore, to see ill-trained law students, bred on a diet of ridiculous courtroom scenes in trashy movies and professing motivation by reports of the so-called “public interest litigation” appearing in newspapers, making a mockery of the law.

The legal system in India is not a creation of a year or a dozen years ago. Despite all the criticism we may level against the English, we have, as a matter of fact, inherited a legal system with roots which go back hundreds of years. For a lawyer to ignore the historical legacy of the English system and its (usually) high traditions, especially those governing the conduct of lawyers, is to reduce the system to a pitiable condition.

For the most part, we lawyers are to blame for the common man’s creeping disillusionment with the legal system. Unfortunately, a bad lawyer makes for an even worse judge and in turn is responsible for a further corruption of the legal ethos.

Chief Justice Sodhi’s book is an unusually honest and candid admission by an insider of the ills that plague the legal system. The situations he recounts are being re-enacted across the country on a daily basis and the actors he names can be found in one form or another, professing leadership of bar associations and councils everywhere.

It is high time that a concerted effort is made to restore the dignity of this system, the honesty of character and the idealism of law students.

It is the right of every citizen, and the duty of every law enforcer to know the procedures which permit the removal of a person from society, whether permanently or temporarily. By and large, the due procedure that is followed today is contained in the Code of Criminal Procedure – a law enacted by the Parliament of India in early 1974. One of the main reasons for the consolidation of the procedural code was the desire of the parliament and the recommendation of the first Law Commission that every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to society.

It was perhaps this intention which became a part of the written law in the form of Section 309 of the Code of Criminal Procedure. This section fairly guarantees that the trial of an accused shall take place as expeditiously as possible. In fact, this section makes it obligatory for the judge to hold proceedings on a day to day basis especially when the examination of witnesses has begun. Any adjournments have to be explained by the judge in writing and a strong hint is provided that whenever either side seeks an adjournment, they must be required to pay costs to the court.

As always, the intent of the legislature and the practice in courts have little in common.

While the legislature desired, that a trial once started, should be finished in one session, possibly spread over multiple days, it is not unusual today to see trials continuing for months, years and decades. It is also not unusual to find the accused under-trial incarcerated during the length of the prolonged trial despite a provision in the section that “remand” ought not to be for more than fifteen days at a time. In some cases which have come to light it has been seen that the accused under-trial has spent more time in jail during the trial, than he would have had to spend in jail even if he had been held guilty and punished with the maximum possible sentence.

It is worth remembering that the International Covenant on Civil and Political Rights which India has ratified and which is therefore a part of Indian law since 1979, makes it obligatory that

Anyone arrested or detained on a criminal charge […] shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody […].

The fact that the Convention is part of Indian domestic law, does not need much discussion, the issue also having been finally decided by the Supreme Court in the People’s Union for Civil Liberties case in 1997.

It is also worthwhile to notice that the European Convention on Human Rights also imposes a similar obligation on the state to initiate and conclude a trial quickly. The European Court in Strasbourg has taken governments to task repeatedly for their failure to ensure quick and speedy trials and has gone on to discharge accused under-trials on “process grounds” simply because their human rights were violated by the failure of the prosecuting agency to conclude their trials within reasonable time.

Some years ago while interning in a prominent Barristers’ Chambers in London; I had the occasion to ask out one of the Queen’s Counsel for dinner. The date I suggested had to be changed because the Silk had blocked off a five day period for a trial he was conducting. The court had not only intimated the date of the beginning of the trial to the barrister, but had also set the date on which the trial was to conclude – a useful lesson, and one worth emulating indeed.

Its not that we have not had speedy trials in India – Bhagat Singh’s trial for the assassination of Saunders and the eventual dismissal of his appeal by the Privy Council took less than half a year.

Unfortunately however, lawyers and judges have got used to hiding behind statistics to justify the adjournments in criminal trials. The mandate of Section 309 notwithstanding, trials are adjourned endlessly and for every reason except those envisaged in the Act. Each adjourned date means that the judge and the lawyers need to refresh their memory about the facts wasting precious court time and requiring still more imprisonment of the accused and a posse of policemen to escort him to the court.

The phase of militancy in Punjab in the 1980s and 1990s gave the “system” yet another excuse to turn a blind eye to the violation of the law and the rights of the accused. The days of terror were not conducive to day-to-day trials, we were told; and for various reasons, the trials had to be adjourned time and again. Be that as it may, the same reason can not possibly shield our incompetence and lethargy today.

Justice KT Thomas, speaking for the Supreme Court a decade ago said volumes when he wrote

“It causes anguish to us that in spite of the exhortations made by this Court and a few High Courts, time and again, some of the trial Courts exhibit stark insensitivity to the need for swift action, even in cases where the accused are languishing in prisons for long years as undertrials only on account of the slackness, if not inertia, in accelerating the process during trial stage.”

On another occasion, the Court had to lament

“Thus, the legal position is that once examination of witnesses started the court has to continue the trial from day to day until all witnesses in attendance have been examined […] The court has to record reasons for deviating from the said course. Even that is forbidden when witnesses are present in court, as the requirement then is that the court has to examine them. […] Now, we are distressed to note that it is almost a common practice and regular occurrence that trial courts flout the said command with immunity. Even when witnesses are present cases are adjourned on far less serious reasons or even on flippant grounds”

There are scores of judgments where the Supreme Court has had to specifically direct the trial court to follow the law and to conduct day-to-day trials; which in itself is a sad comment on the “system”. A judgment of the Supreme Court is the law for the High Courts and subordinate courts – but possibly not a law that they care to bear in mind while depriving a person, who has not yet been convicted, of his liberty.

ALL decisions are made in the given set of circumstances and keeping in view the prevalent sensibilities and desires. Almost six decades ago, the people of India, speaking through the Constituent Assembly, decided to make free India a secular state.

Secularity can, however, have many connotations. A secular state may be one which does not promote or endorse a particular religion; or one which treats and tolerates all religions in the same way; or even one which does not tolerate any religion and actively suppresses all religious activities.

Back then, we chose that while the Indian state would not subscribe to any religion, all people would be free to pick whichever denomination they choose. We even gave religious bodies special constitutional rights so that they could preach and practice their beliefs without hindrance or obstruction. It is quite amazing, therefore, to come across the vociferous recent attempts to arouse the anger of people against the French.

Almost four years ago, the French government passed a law prohibiting the carrying or display of religious grab or symbols in public primary and secondary schools. The Khalsa leadership today seems to have taken it as a direct challenge to the tenth Sikh Guru and has been misguidedly seeking to polarise public sentiment ever since.

It would also be quite interesting to observe the reaction of the SGPC to a Muslim pupil in one of its schools or colleges who insisted on breaking lessons for performing Salah or Namaz. Till recently, the SGPC had been reserving half of all seats in its educational institutions, including medical colleges, for baptized Sikhs.

If you were not baptized in the way of the tenth Guru, you were denied admission to the college, even if you were meritorious. The Punjab and Haryana High Court’s judgement, correctly striking down this unhealthy practice, has only been more fodder for the malcontent’s cannon.

The SGPC can’t possibly defend its own actions in “defending” their right to practise their beliefs while at the same time denying the French public its right to have a secular state policy. It had already prohibited Muslim Rababis from performing kirtan in the Darbar Sahib in 1925 and recently denied permission to Ghulam Mohammad Chaand, a descendant of Guru Nanak’s companion, Bhai Mardana, as well.

All this can easily be defended on the strength of claims of religious independence and freedom. We are rarely this charitable when the shoe is on the other foot. But first let us get some facts straight. The French schools, much like the Indian schools, fall in three categories: purely government-run schools, purely private schools and private school which receive government funding.

The law banning the wearing of religious attire or carrying religious symbols does not apply to private or aided schools but only to the government schools.

The law is not aimed specially at the Sikhs or Jews or Muslims or Buddhists or any of the thousands of religions actively practised in the world today.

A pupil wearing a turban is as likely to fall foul of the law as one wearing a Catholic cross on a necklace or a Jewish yarmulke.

There have been barely a handful of cases where students have been expelled form schools for violation of the law. Out of the handful of Sikh children expelled, at least three were studying in Catholic schools.

A student who does not wish to give up religious symbolism is under no compulsion to continue to study in a government school. There are plenty of private or aided schools where such restrictions are not in force.

The average fee for a student studying even in a private or aided school can be as little as £20 – £30 per month, depending also upon the financial capacity of the family. Given that even an old age a person drawing social security in France is entitled to at least £6,700 a year from the government, this is a miniscule and eminently affordable amount.

The law does not ban the wearing of headscarves or any other conspicuous symbol in public places, universities or in private schools.

Sikhs made up 0.01 per cent of the French population in 2006. This is the same as the number of Zoroastrains in India!

In a nutshell, the French legislature has merely said that if you wish your child to study in a purely government funded school at the primary or secondary level, then you must ensure that the child dresses in a neutral manner and is not wearing or carrying any religious symbols. If you can’t accept this restriction, then please send your child to a private school which does not enforce this condition.

Given the huge number of reservations on religious, caste, economic and other criteria that we have in India, one would have thought that we would have no qualms about this as being a completely reasonable restriction.

The vocal minority is, however, painting an entirely different and sinister picture for the common masses. It is being sought to be portrayed that no Khalsa child is going to be able to attend school in France; that unless the Khalsa pitches in with money to start a new school in France, the children are going to grow up unlettered. Or worse, the only alternative that a child wanting to be educated is to convert to another religion. This is simply untrue and highly scurrilous.

Even otherwise, what objection can ever be raised to children growing up in an atmosphere that is free of religious connotations? A healthy percentage of children, even including those of many of the rabble-rousers, study in convent schools and say their daily Christian prayers with children of all other denominations. There are plenty of opportunities to share your religion and culture with the children at home or on weekends, without having to make the poor little ones stand out differently in schools.

Some time ago, a delegation of some enlightened ones went to present a petition to the International Court of Justice against the French law. It’s a different mater, of course, that any of the “affected” school students would be able to tell you that only nations have the right to go to the ICJ.

Private individuals or religious organisations, even if confronted with such grave matters, have no standing in the court. Marches have been planned and conducted against anything remotely French sounding, whether or not it has any influence with the law-makers in that country.

It’s also small wonder that of all the methods suggested by the vocal minority fall short of the recourses allowed by the law in France or in Europe. The only suggestions that stem are those of mass agitations, ridiculous decisions to approach human rights organisations etc.

The Sikhs are a well-respected, highly industrious and integrated part of most European nations. They have traditionally been regarded as non-controversial and productive members of society and have won laurels and admiration from all over.

It would be wrong to use them or their sentiments for populist or opportunistic ends or for finding fresh money-raising causes. Let us not make things so warm for them that they find themselves unwelcome in those countries anymore.

Published in The Tribune, 24.2.2008

THE function of a judge is to take a given matrix of facts and then apply the law, as it was on a relevant moment in time, to return a decision on the question posed to him. A judge is not a law maker and a judgment is incapable of conferring a right or a duty on any person. Judgments are only endorsements of the rights or duties already attached to people, but which may have been disputed or called into question.

Really, a person claiming to be the rightful purchaser of a disputed property cannot say that the court or the judge gave him the right to have the property; at best, he can only claim that the judge vindicated his claim and rejected the contentions of his opponents.

A writ petition before a High Court or a Supreme Court bench is essentially to be treated in the same manner. The judge deciding a case where the petitioner claims the violation of his right to life, or of personal liberty or free speech — or of any other right that “We the people” have conferred on him — may only examine all the facts before him and decide whether that right has actually been conferred upon him by the Constitution or a statute and in breach direct the government or other persons to restore what was rightfully his, to begin with.

A court of law is, therefore, a restorative forum at best. It is not a forum for social or economic or cultural change at all. A court must only function within the confines of the conditions which the people, acting through the legislature, have enacted in the form of laws. If the people are unhappy with a particular rule or law, then the supreme and exclusive power to change it rests exclusively with their chosen representatives, and it is patently indefensible and unjustifiable for a judge to substitute his will or conscience and go against that law.

A law made by a parliament or a legislature represents the will of the majority of the people, and neither their motives nor their intent may be questioned by a judge.

A judge may, of course, examine the process which leads to the making of the law and determine whether or not the process satisfied the procedures (again, only the procedures prescribed by the people in laws authorising their representatives to legislate). If the judge finds the procedure adopted by the legislators to be contrary to those procedures, he may hold the law to be badly made. But for a judge to go into the motives of the legislature cannot be justified, not in a democracy at least.

It is quite instructional to read the oath which every judge is obligated to swear while being sworn in. The oath, itself prescribed in the Constitution, enjoins a judge to be true to the Constitution but makes neither demand nor requirement for the judge to owe any form of allegiance to the font of all authority, the common man, who collectively with his peers makes up “We the people”.

This has two connotations. One, the judge has no right to empathise with or to be revolted by any litigant or cause. Two, the judge is subservient only to the law — and the law as given to him by Parliament and legislatures. There is no other law nor source nor conscience which he may obey.

Judges, unfortunately, express their frustration at the manifest injustice being caused by particular pieces of legislation in their judgments. Latin and Greek maxims are often the chosen vehicles of such transgressions and in wanting to appear to do justice, judges inadvertently perform the greatest disservice possible to the law.

The most desirable characteristic of any law is its predictability. The law ought to be a predictable set of rules and, given the same set of facts and circumstances, must return only the same one answer each time. A legal system which depends on the personality of the actors — the litigants, counsel or the judges — may well be a great social system, but is a poor system.

When judges start tweaking the law to make it seem more just as per their individual conscience, they introduce the “x” or the uncertainty variable into our interactions. Judges can’t possibly be expected to comprehend each and every ripple that would be caused by their plucking at a single strand in the fabric of the law as it exists and often end up causing unthinkable effects.

While saying that judges cannot “make the law”, I also contend that judges can’t even opine about what the law is going to be, even a moment into the future. To change the law or to wipe it out all together is the exclusive domain of the legislature, and for a judge to premise his judgment on a future expectation would be equally fallacious.

Democracy by definition means that if we can get enough people to agree to the same thing, then our representatives can enact it as a law and even the minority which doesn’t agree with it must still abide by those rules.

Now if a judge feels, with all the strength of his conscience, that a particular rule is unjust — generally, or in a given case — even then he must not try to mould the law to his personal prejudices. Not only because it makes the law arbitrary and unpredictable, but also because it goes against the collective will of the majority. The presumption must be that every law which is on the statute books is desirable and essential to the majority of the people. One must also acknowledge that most of the judicial misadventures are largely due to the extremely persuasive and misplaced advocacy of advocates and counsel.

The most vocal critics will, of course, point out that the executive and the legislature have abdicated their responsibilities and have forced the constitutional courts to “legislate”. If there has been a vacuum in good governance, then it is because either the legislature or the executive has been failing in its duties. The failure of the executive should possibly trigger off a rethink of our entire system of civil service and warrant its revamp or abolition. The failure of the legislature may possibly be because we don’t want better legislators representing us in Parliament. But neither possibility, horrifying as it may be, warrants the flexing of judicial muscle.

If a Judge feels that the law is imperfect and he is unable to impose it in its full majesty, let him resign rather than be untrue to his oath. But let not a judge feel that he alone can save this overburdened land from its unruly masses.

An oft-speaking judge, said Francis Bacon, is like an ill-tuned cymbal. And that unfortunately is the reason why a cacophony is emanating from our courts today. Judges have got used to speaking through their judgments and can rarely restrain themselves from proselytising. Extremely learned judges have written literature in the guise of judgments; but for a lay person to comprehend the implications of the “flowing of the Ganges under the bridge” is a tall order, indeed.

Published in The Tribune, 30.1.2008

Advertisement in the legal services sector unlike many other sectors like retail, entertainment, aviation, telecom and apparels among others is banned in India. M.L.Sarin and Harpreet Giani talk about the impact that this ban will have on Indian legal services.

In India, the cumulative effect of the Advocates Act, the Rules of the Bar Council of India and other professional bodies is that lawyers are prohibited to advertise their services. Lawyers may not solicit clients and cannot do anything that might influence the decision of a potential litigant from engaging one or the other lawyer. Even if a lawyer argues a case brilliantly, the newspapers may report the issue but the publication of the lawyer’s name in the report is frowned upon. Consequently, a person intending to buy an automobile has more information and research resources at his disposal than someone intending to entrust critical litigation to an advocate. A litigant exposed to the vagaries of the judicial system in India for the first time has no way to draw up a short list of practitioners specializing in that particular branch of law; there is no single place or agency which can possibly supply a list of “good” lawyers to the lay person.

The majority of clients are therefore at the mercy of “friend of a friend” for their legal requirements. The legal profession works more by oral referrals than by any standardized criterion for grading lawyers. Litigants forced to enter the court system for the first time seldom have any idea about the usual fees for similar cases either. Unlike many other legal systems, the Indian lawyers and law firms are disallowed from many measures that would greatly benefit the public at large. For example, a website by a family law specialist or a rent law barrister where essays or monographs about the law are published, or where the public at large can get relevant information would be classified simply as an advertisement and is thus proscribed.

The prohibition on advertising or information dissemination is usually attributed to and rationalized by the age-old homily about the law being a “noble profession”. All attempts at a dialogue so far have been snubbed simply by hiding behind the excuse that members of this lofty profession ought not to degrade themselves by hawking their wares. However in the age of information, these excuses can rarely be sustained. The consumer of legal services, like the consumer of any other services (including medical services from a doctor etc.) is entitled to look for and obtain the best value for his money. The litigant must be able to find an advocate within his paying capacity and whom he can trust. There has to be some mechanism from where an impartial evaluation of the lawyer, his track record, and competence in various disciplines can be obtained.

One of the possible methods can be to permit limited advertising, possibly through “infortising”. The Bar Council can possibly lay down standards within which the lawyers may be allowed to advertise or publish information, which, apart from attracting new business for the lawyer, provides an opportunity for the practitioners to share information or legal analysis with prospective clients. Lawyers who have written articles, treatises or monographs on some aspects of the law or on specific judicial pronouncements already enjoy the right to have them published in the journal sections of law reports. Unfortunately, these scholarly pieces are rarely available to the public at large since these reports do not enjoy wide circulation amongst non-lawyers. Allowing lawyers to publish these articles and analyses in their in-house brochures, newsletters or on websites would be a healthy step.

As long as the “advertising” is not just gratuitous; and promotes legal awareness and gives the litigants an opportunity to evaluate the calibre of their potential counsel, advertising per se ought not to be barred. In many countries now, the legal profession itself provides a way for litigants to find the lawyer best suited to their needs. The Bar Council of England and Wales introduced its own benchmark for lawyers way back in 1999. Called the Barmark, it indicates that chambers comply with the Bar Council’s Practice Management Standards and Guidelines. This kitemark, which is regularly reviewed, sets standards of best practice for administering chambers.

Barristers’ chambers regularly update their websites on the internet. These websites usually carry detailed curriculum vitae of the practicing barristers, their achievements etc. These websites also routinely carry information on the practice areas of interest of each individual as well as links and references to judgments in cases where that lawyer had appeared. The websites also carry sufficient contact details for the chambers. Since every chamber enjoys the same right to put up a website, this privilege does not tilt the playing field. On the contrary, it is a very valuable resource for the lay people. It is now high time that the Bar Council and each advocate in India realize that the legal system is not just about the lawyers. The Bar Council must not confine its activities to the welfare of the legal community. The Bar has a greater role to play, as the first line of contact between the lay public and the lawyers.

Many of the malpractices that lawyers commit for obtaining work, which are commonly acknowledged in private, but seldom publicly admitted, can be better addressed if “infortising” is accepted into our system. The legal profession is undoubtedly a noble profession. But at the same time, it is catering to the needs of the public at large. It must therefore open itself up to the scrutiny of the public and appear reasonable and accountable. This is even more relevant today as the legal services sector in India is likely to be thrown open to ‘foreign lawyers’.

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M.L.SARIN is a Senior Advocate and the former Advocate General for the states of Punjab & Haryana.

HARPREET GIANI is a Bar-at-Law and has done his LL.M from London School of Economics.

Published in the India Law Journal - http://www.indialawjournal.com/volume1/issue_1/legal_articles_sarin.html