THE
LAWYERS AND THEIR DAUNTING PROBLEMS
By
Gur Rattan Pal Singh,
Advocate
H.No. 1599, Phase-10,
Mohali – 160062
Phone: 0172-4064931
Mobile: 9814210655
WHY THIS PAMPHLET?
“Na sataish ki tamanna na sile ki parwah
gar nahi hai mere ashar mein mayeney na sahi” (Ghalib)
gar nahi hai mere ashar mein mayeney na sahi” (Ghalib)
(I seek no praise; nor do I care for reward, if my couplets have
no meaning, be it so.)
I
joined the legal profession in the year 1960 and during the last 53 years, I
have seen hundreds of name plates of Judges being removed and replaced. This phenomenon of impermanence of age can be
attributed to the time factor. W.B. Yeats writes that:
“The innocent and the beautiful have no enemy but
time.” “Time crumples things; everything grows old under the power of Time and
is forgotten through the lapse of Time.”
Some of the retired High
Court Judges, before whom, I had the privilege to appear, have breathed their
last.
“Alas, my brother! Mighty kings
and lords, proud princes,
Courtiers, loveliest maidens gay,
Bards and their tales of ancient
chivalry,
Homage to time! All these have passed away.”
I wanted to
immortalise their legacy by writing about their illustrious roles in the legal
profession but certain limitations stand in my way.
I brought out
the present booklet giving vent to my feelings and in no case is it to be
construed as an attempt for self-promotion. I am fully cognizant of the truth
that:
“Sana-i-khud bakhood guftan
Na Zebad
mard-i-dana ra.”
(It does not
behove a man of wisdom to use his tongue in self praise.)
इक दिन चीच घचौलियाँ विच, तकिया अपना नाँ,
मुड़ तकिया, की वेखदा, चिड़ियाँ तोते काँ।
“Jawaanee jaati
rahee
Aur hamein
pata bhi na lagaa
Use dhoond
rahey hoon kamar jhukai hooey.”
(Youth
disappeared and I was not aware of its going.
It is my youth that I keep looking for with my back bent double.)
As per
Ghalib, age runs out with the speed of lightening:
“Umar
harchand kih hai barq-e-khiram
Dil ke khoon
karne ki fursat hi nahin.”
(Life is,
indeed, moving at the speed of lightening.
Nobody has a free time to bleed the heart.) How beautifully Ghalib
throws light on the fragile and unpredictable nature of life/age:
“Rau mein hai rakhshe umr, kahan daikhiye thame
Ne haath baag per hain na pa hai raqab mein”
Ne haath baag per hain na pa hai raqab mein”
(My life runs at a galloping
speed, who knows when it will come to a halt! The reins are not in my hands;
nor are the feet in the stirrups.)
I am now 77 years with the
failing health and the clock of my life points to the evening hour, therefore,
‘Duniya
ne tajurbaat o havaadis ki shakl main/ Jo kuch mujhe diya hai/ lauta raha hoo
main’
(I am returning whatever the world had
granted me by way of experiences).
उमर धरू के ले गयी, शक्लां, वक़्त, अतीत
ऐह खबरे किन्झ बच गए, कुज यादां कुज गीत।
IT WILL, INDEED, BE A VERY HARROWING
DAY
The harrowing
day will come if the judiciary becomes the extended hand of the executive; when
it becomes non-responsive and non-assertive towards the barbarity of the police,
the harassment by the income tax department and the organised tyranny of the modern State. From the 15th
century to the present time, the power of the State qua the individual had been
continually increasing. Politicians in our day are far more powerful and
influential than they were in the past. “The technique of acquiring dictatorship over
what has been a democracy has been familiar since Greek times, and always
involves the same mixture of bribery, propaganda and violence...”
An
innocent man is going to be killed in a fake encounter by labelling him as a
terrorist.
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‘In passing by the side of Mount Thai, Confucius came to a woman who was weeping bitterly by a grave. The Master pressed forward and drove quickly to her, and then he sent Tze-lu to question her. “You are wailing,” said he, “is that of one who has suffered sorrow on sorrow.” She replied, “That is so. Once my husband’s father was killed here by a tiger. My husband was also killed, and now my son has died in the same way.” The Master said, “Why do you not leave this place?” the answer was “There is no oppressive government here.” The Master then said, “Remember this, my children: oppressive government is more terrible than tiger.”
The judiciary is to ensure that the governments work within their constitutional limits and respect them.
The words of Thrasymachus are of eminent relevance:-
“Each government has its laws framed to
suit its own interests; a democracy making democratical laws; and an autocrat
despotic law, and so on. Now by this
procedure, these governments have pronounced that what is for the interest of
themselves is just for their subjects; and whoever deviates from this, is
chastised by them as guilty of illegality and injustice. Therefore, my good sir, my meaning is that in
all cities the same thing, namely, the interest of the established government,
is just. And superior strength I presume
is to be found on the side of the government.
So that the conclusion of right reasoning is that the same thing,
namely, the interest of the stronger, is everywhere just.’
“Sh. Fali S. Nariman concludes that
“One of the lessons of the Internal Emergency (of June 1975) was not to rely on
constitutional functionaries. These functionaries failed us – ministers of
government, members of Parliament, judges of the Supreme Court, even the President
of India.”
 Hans
Raj Khanna was a
legendary judge of the Supreme
Court of India
(1971–1977). Who gave the dissenting judgment declaring that the Constitution
did not permit right to life and liberty to be subject to the executive
decree.
Previously
he had authored the Basic
structure doctrine
of the Constitution
of India
in Kesavananda
Bharati v. State of Kerala. The shining star on the firmament
of judiciary.
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It
may be remembered that higher judiciary as well as the intelligentsia failed to
protect the interests of the common man during emergency. In the case ADM
Jabalpur vs. Shukla, the State Counsel had the audacity to argue that Courts
were powerless to prevent any possibility of abuse and they could not grant redress.
It is only through the Forty-fourth Amendment Act, 1978 that the safeguards
against repressive measures were resorted to. However, the poets including
Surjit Patar and common men refused to rationalize the tyrannical period and
lamented that:-
Eh
nne ajkal mere daryavan de naan.
Aur maut azad hai lashon par guzarne ke liya
Are baghban ban ke uthe aur chaman bech diya.
और मौत आजाद है लाशों पर गुजरने के लिए,
अरे बाघबान बनके उठे और चमन बेच दिया।
(Mourning,
violence, fear, helplessness and
injustice prevail and are the names
of
the rivers of Punjab.)
मातम,
हिंसा, खौफ, बेकसी, अन्याय,
एह
ने आजकल मेरे दर्यावाँ दे नाँ।Aur maut azad hai lashon par guzarne ke liya
Are baghban ban ke uthe aur chaman bech diya.
कौन
आजाद हुआ और किसके माथे से ग़ुलामी की सियाही छूटी,
खंजर
आजाद है सीनों में उतरने के लिए,और मौत आजाद है लाशों पर गुजरने के लिए,
अरे बाघबान बनके उठे और चमन बेच दिया।
Yeh
daagh daagh ujaala, yeh shab gazida sahar
Woh
intizaar tha jis ka, yeh woh sahar to nahin. (Faiz)
(This
blemished light, this dawn by night half-devoured.
Is
surely not the dawn for which we were waiting.)
The place of justice is a hallowed place; and therefore ought to
be preserved without scandal and corruption. The supreme law for all is the
weal (welfare, well-being) of the people. There shall be no fish justice;
rather it should hearld an era where:-
“The wolf shall dwell with the lamb,
and the leopard shall lie down with the young goat,
and the calf and the lion and the fattened calf together;
and a little child shall lead them.”
As per fish justice,
it is the duty of the smaller fish to submit itself to be swallowed by the
bigger one and the right of the bigger fish to gobble the smaller one.
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Justice is when lamb is empowered to co-exist with wolf.
(The wolf dwells with the lamb)
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The
state finds it necessary to acquire and exercise more and more growing control
over almost every activity of the individual’s life till no real personal
freedom of any kind is left to the individual. It is the solemn duty of the
judiciary to tame the State and to act as a watch dog for safeguarding the
interests of the citizens.
The Supreme Court expects
judges to live and behave like ‘hermits’ who have no desire or aspiration
having shed it through penance and the mission is to supply light and not heat. Though the judiciary has neither the power of
the sword not of the purse yet the power of its members is irresistibly drawn
from their moral and righteous course of conduct sanctified with learning,
purity of life and indifference to material wealth. Transparency, credibility, impartiality and
accountability to the laws of the land add more glamour to the judiciary.
Prof. Jafre, an eminent
jurist, expressed his views about an ideal judge, “A judge is exalted as a
law-giver and a prophet. He must have
the Wisdom of Solomon, the moral vision of Isaiah (A Hebrew prophet to whom the
Old Testament is attributed), the analytical power of Socrates, the
intellectual creativity of Aristotle, the humanity of Lincoln and the
impartiality of the Almighty.
The principal duty of
a judge is to suppress force and fraud; whereof force is the more pernicious (ruinous,
wicked) when it is open, and fraud when it is close and disguised.
As per Francis Bacon:
“When any of the four pillars of government, religion, justice, counsel and
treasure are mainly shaken or weakened, men need to pray for fair weather.”
The profession of law
is independent, honourable, paying and interesting with no age to retire. The
lawyer is the conscience-keeper of society and he must react to injustice with
indignation and disgust.
THE PRELIMINARY
HEARING
The preliminary hearing is a necessary evil. There is no lawyer on the earth who does not feel nervous or ill-at-ease while doing the kaccha peshi. Even the renowned lawyers like Shri Hira Lal Sibbal and Shri Jagan Nath Kaushal admitted that they did develop high blood pressure during the arguments at the time of preliminary hearing. However, according to them, the things would be different if the lawyer faces a judge as good listener, sympathetic, accommodating and courteous as was the case with Justice Sarkaria. Sardar Dara Singh, the renowned criminal lawyer never appeared in kaccha peshi.
Verily, the results in the preliminary hearing are highly uncertain and unpredictable. The lawyer is not sure whether he is going to get admission or dismissal at the hands of the Presiding Officer.
Justice R.S. Sarkaria was appointed the judge of the Supreme Court of
India on 17.09.1973 and retired on 15.01.1981.) He was gifted with the senses
of discernment, perspicacity and understanding. His priority as a judge was: “I
will ensure that no lawyer will ever complain that he was not given a patient
hearing in my Court.” He was patient, forbearing
and resigned.
The Urdu couplet of Allama Iqbal epitomises such like personality:
“Kahan Se Tu Ne Ae Iqbal Seekhi Hai Darveshi?
Ke Charcha Padshahon Mein Hai, Teri Be-Niazi Ka.”
(O Iqbal! From where did you learn to be such a dervish?
Even among the kings there is talk about your being contented).
Ke Charcha Padshahon Mein Hai, Teri Be-Niazi Ka.”
(O Iqbal! From where did you learn to be such a dervish?
Even among the kings there is talk about your being contented).
The
possibility of power going to the head of the judge cannot be ruled out as he
enjoys tremendous and enormous powers coupled with unfettered and unbounded discretion
and this is how that T.S. Eliot advised that the only wisdom one can hope to
acquire is the wisdom of humility. As per Justice K.L. Gosian, the lawyers want
the judges to be patient, courteous and accommodating. This is the panacea
which will transform the draconian preliminary hearing into a pleasant
experience.
It is the visionary spirit of the judge and the lawyer which does
matter in kaccha peshi.
“Nigah
Buland, Sukhan Dil-Nawaz, Jaan Pur-Soz,
Yehi hai Rakht-e-Safar Meer-e-Karwan Kay Liyah.”
(Lofty vision, winsome speech and lovable personality,
This is all the luggage for a leader of the Caravan.)
Once Helen
Keller, US blind & deaf educator (1880-1968) was asked, “Is there anything
worse than blindness?”
She
replied, “Yes, a man with sight but no vision”.
For effective and purposeful
results in litigation, the Courts should project their cosmic or universal forms 'Viratroop'.
The Courts
are to show their Cosmic or Universal form (Viratroop)for controlling and
taming the mephistophelian and diabolic forces let loose by the adversaries of
justice, fair play, equity and good conscience.
Viratroop =
Arjuna son of Pandu and Kunti was not willing to fight the Mahabharta battle
till Lord Krishna showed His Viratroop to Arjuna.
SEPTUAGENARIAN LAWYERS
MERIT PREFERENTIAL TREATMENT.
(Septuagenarian means A person who is 70 years old or between the ages of 70 and 80).
Sab cheez ko hota hai -- bura,
Haae,
burhapa.
(Old
age is the deadly foe of every charm and grace.)
The
office bearers of the High Court Bar Association should plead with the Hon’ble
Chief Justice that the cases of the lawyers aged more than 75 years should be
got listed at a higher place in the Cause List because of their state of being
old and no longer in good health. Even now certain judges bestow this privilege
on the lawyers more than 75 years. Old people say nothing and sit in a
vegetative state without much response or reactions and find themselves phased
out from the main stream of life.
The
main trouble with the aged lawyers is the urinary incontinence and unstable
blood pressure and they are to go the toilets very frequently. Even the newly
constructed stories in the High Court are without toilets and the aged lawyers
feel much inconvenience in covering a lot of distance for reaching the urinals.
Young lawyers may not appreciate the logic of the above suggestion but it
is only the bearer of the shoe who feels the pinch.
I have seen Justice Jindra Lal asking the top ranking but old criminal
lawyer Sh. Jai Gopal Sethi to argue the appeal while sitting because the
Hon’ble Judge wisely took notice of the lawyer’s old age. If the value of iron is to be appreciated,
don’t go to the blacksmith but go to the horse in whose jaws the bit is
thrust. The renewed Punjabi dramatist
Sh. Balwant Gargi stated that in life there is nothing more invigorating and
charming than the youth and the old age is a curse. In the cases of old lawyers, it is true that
they want to retire from the profession but the professional compulsions and
constraints are too demanding and commanding to be ignored.
THE OLD & UNNECESSARY LEGAL REQUIREMENT OF
TRANSLATING THE MATTER WRITTEN IN VERNACULAR LANGUAGES INTO ENGLISH MUST GO.
The legal requirement of translating the vernacular material into English
language is another hurdle in filing the cases in the Hon’ble High Court. It is very rare that each and every lawyer is
conversant with the Persian, Gurmukhi, and Devnagri scripts. The judges of the Hon’ble High Court can
easily decipher and figure out the relevant record written in vernacular
languages.
Previously there was a practice that each and
every prayer was to be made through separate applications but Justice J.L.
Gupta permitted the lawyers to include all the prayed reliefs in one
application, thus, doing away with the outdated technicality. The Supreme Court had observed:
“A besetting sin of
our legal system is the tyranny of technicality in the name of finical
legality, hospitably entertained sometimes in the halls of justice”.
THE REGISTRY
OF THE HIGH COURT MUST SHED THE FAULT-FINDING APPROACH.
It
is easier to get justice from the judges of the Hon’ble High Court but it is
more difficult to get the case passed from the registry of the High Court. The
procedural hiccups are nightmarish and agonising to the hilt particularly for the
new entrants in the profession. It is more than often that simple matters are
made complicated and non-issues are made main issues.
It
is to be appreciated that:-
अलफ़ाज़के पेचों मेंउलझते नहीं दाना,
गवासको
मतलब है गौहरसे ना के सदफसे।
(It
does not behove a wise person to be lost in the jugglery of words; The diver is
to make a search for the pearl and not for the shell.)
THE
RAPPORT BETWEEN THE MEMBERS OF THE BENCH AND BAR MUST BE ESTABLISHED.
Chaman mein ikhtilaat-e-rang-o-buu
se baat bantii hai,
hamiin ham hain to kyaa ham hain, tumheen tum ho to kyaa
tum ho.
(चमन में इख़्तिलात ए रंगो बू से बात बनती है,
हमीं हम हैं तो क्या हम हैं, तुम्हीं तुम हो तो क्या तुम हो).
Bench and
Bar are the two important wheels – supplementary and complimentary to each
other – of the chariot of justice. If
either of the two or both gets weakened, the cause of justice will suffer.
The members of the Bench and Bar must
understand the problems being faced by
each of them so that the wheels of justice move faster and in that connection,
the complaint box must be got installed in front of the Court of the Hon’ble
Chief Justice. The channel of
communication between the members of the Bar and Bench must be opened. I, unfortunately did not get the privilege to
meet the present Hon’ble Chief Justice but
“Suna hai bolen to baton
se phool jharrtay hain,
Ye baat hai to chalo
baat kar ke dekhte hain.”
WHY
THIS PUZZLE?
It
is observed that only 10% of the lawyers get work while 90% are left with
almost no legal work and this enigma must be solved so that there is fair distribution
of work and no one is allowed to monopolise the legal profession. This is true that the legal
profession is monopolised by rich and influential people including close
relatives of ministers, judges, and high-ranking bureaucrats. Through high connections, dinner diplomacy
and publicity, some lawyers manage to rise from limbo of oblivion to limelight.
The members of the Bench and Bar should devise ways and means to ensure the
distribution of work on ideal basis.
THE DELAY IN THE JUSTICE DELIVERY SYSTEM MUST COME TO AN END.
The
delay in the disposal of the legal cases is another matter of great
concern. Our family’s land at Kurali was
acquired vide notification issued under Section 4 of the Land Acquisition Act
in the year 1984 and till today, the full compensation money had not been paid.
The procedural hiccups are painful and tormenting. One after the other adjournments are
unnecessarily granted violating the Rules & Orders of Punjab & Haryana
High Court that evidence is not taken in driblets.
The top ranking Punjabi
poet, Surjit Patar, Sahitya Akademi recipient,
had epitomized the
devastating delays in the justice
delivery system through the following lines:
“Is adalat ch bande birkh ho gaye
faisle sundya sundya sukk gaye
akho ehna nu ujre ghari jaan hun
eh kadon teek ethe khare rehange.”
faisle sundya sundya sukk gaye
akho ehna nu ujre ghari jaan hun
eh kadon teek ethe khare rehange.”
(The
litigants have turned into trees;
they have
become lifeless awaiting
the
courts’ verdicts;
Ask them
to go to their desolate homes;
For how
long can they afford to wait till eternity?)
LAW AND
JUSTICE ARE NOT AT THE SAME FOOTING.
When I asked one Hon’ble
retired High Court Judge to narrate an interesting incident of his life, he
stated that when he was the Sessions Judge, he went to attend the Bhog Ceremony
of one of his friends. When an old lady
came to know about his visit, she reached there and narrated to him her tale of
woe as to how her only son was murdered by A and she prayed for justice. Judge Sahib sent for the S.H.O. who informed
him that there was truth in the old lady’s allegation, but he was helpless as
it was a blind murder and there was no eye witness. As per the Hon’ble Judge, he directed the
S.H.O. to prepare the case on the basis of the circumstantial evidence and to
put up the challan.
Eventually, the case came
up for hearing before Judge Sahib. The
sessions trial went for a day or so and ultimately, the case was fixed for
orders. The date of the order was duly
conveyed to the old lady. On the date of the order, the accused came with a
smile on his face as he was sure of his being acquitted. When the Judge sentenced the accused to life
imprisonment, of course, to the extreme jubilation of
the old lady, the accused and his Counsel felt crestfallen as the sentence was
like a bolt from the blue. The murder had to cool his heels in the jail for a
couple of years but ultimately, A was to be acquitted and was acquitted by the
High Court but the old lady got justice despite the course of law going against
the conviction.
JUSTICE
AND MERCY ARE NOT SYNONYMOUS
Justice Surinder Singh
draws a line of distinction between ‘Justice’ and ‘Mercy’:
“A man with one leg
amputated had done lot of penance by standing on his only leg for many years,
hoping that God would restore his second leg, but nothing happened. One day, he accosted a traveller going on the
road and asked him where he was going.
The latter told him that he was going to meet God. The one-legged man asked him to convey his plea
to God that despite so much penance, God had not granted justice to him. The other man agreed to do so. After a few days the same traveller on way
back came to the spot but found the man he had met earlier with both his legs
gone. “Didn’t you convey my request to
God that justice should be done to me?” asked the legless man lying on the
ground. The other one replied. “I did convey but God said that according to
the law of Karma, real justice for you was to lose both your legs. It was only your penance that your only one
leg had been spared.” Now see, since the
man had asked for justice, he had to lose both his legs. The moral of the tale is: “In the Court of
Supreme, never ask for justice because you may be hanged. Pray only for mercy.”
MORE TOLERANCE TOWARDS DISSENT IS
REQUIRED IN THE MEETINGS OF THE GENERAL HOUSE.
“Ye dastur-e-zaban-bandi hai kaisi teri mahfil mein,
Yahan to bat karne ko tarasti hai zaban meri,”
(Why does this custom of silencing exist in your assembly?
My tongue is tantalized to talk in this assembly)
Chali hai rasam keh koi na sar utha ke chale
(There is
a practice emerging not to allow any person to hold his head high.)
I witnessed one of the lawyers being shouted down because his
views were not palatable. Do we know the
following words of Voltaire?
“I disapprove of what you say, but I will defend to the death your
right to say it.”
We can never be sure that the opinion we are endeavouring to
stifle is a false opinion; and if we were sure, even then the stifling would be
unfair.
There was a very disgusting incident in our High Court. One lawyer developed the illusion that he had
been elevated to the Bench and that he was not being administered the oath of
allegiance to the Constitution.
Consequently, he filed the Writ Petition in the High Court seeking
mandamus for being administered the oath and the Writ Petition was enlisted for
hearing before Justice M.S. Gujral.
Despite the fact that the Judge knew about the lawyer being mentally
sick, Justice Gujral gave the lawyer a very patient hearing.
Similarly, a person was arguing his case before Chief Justice
Mehar Singh. After sometime, he started
speaking against the judiciary in a vituperative manner. Some lawyers tried to stop him but the Chief
Justice told the lawyers not to stop the litigant from speaking.
Apart from that, the sound system is so bad that it cannot be
worse. The office bearers of the Bar
Association will try to improve the sound system so that there is better communication
between the speaker and the audience.
A FEW WORDS ABOUT THE
WRITER.
Sardar Gur
Rattan Pal Singh, scion of an illustrious family of Kurali, nearby town of
District Ropar, has been in the High Court Bar for the last 53 years and he
continues to my friend since the year 1963.
After passing
his Matriculation Examination in First Division from Khalsa High School,
Kurali, Mr. Gur Rattan Pal Singh joined Government College, Ropar, from where
he graduated in 1956. He was elected the General Secy. and in the subsequent
year, the President, of the all powerful Government College Students’ Union. He
joined double course at Muslim University, Aligarh, from where he qualified
M.A. in high second class and Bachelor of Law with distinction in 1958. He
qualified the examination in proficiency in land laws from Delhi University in
1959. He served Mata Gujri College, Fatehgarh Sahib as a Lecturer in Political
Science for a few months, and then, he joined the legal profession in the year
1960.
I have known
his excellent wit, laced with couplets, educative anecdotes, wise maxims and
penetrating vision. He is a versatile speaker and a prolific writer. He is a
noted writer having authored the well-known books: “The Illustrated History of
the Sikhs (1947-78)”and “My Reminiscences”. He has been contributing articles
to the various front rank news papers of India. His views relating to the
subject in question merit serious attention.
Chandigarh
JASWANT SINGH MANN
Dated:
01.04.2013 M.A., L.L.M (Advocate,
#570, Sector 36-B,
Chandigarh.)
