THE LAWYERS AND THEIR DAUNTING PROBLEMS

By

Gur Rattan Pal Singh, Advocate

H.No. 1599, Phase-10,

Mohali – 160062

Phone: 0172-4064931

Mobile: 9814210655

E-mail:  grpsingh@rediffmail.com

WHY THIS PAMPHLET?

“Na sataish ki tamanna na sile ki parwah
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”

(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 15^th 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.

 

‘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.

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:-

         “Matam, hinsa, khauf, bekasi, anyay

Eh nne ajkal mere daryavan de naan.

(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।

Kaun azad hua aur kiske mathe se ghulam ki siahi chhooti,

Khanjar azad hai seenon mein utarne ke liya,
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।

(Who has got freedom and removed the blot of slavery? Dagger is free to strike, death free to walk over bodies. They started as gardeners but sold off the garden.)

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.

 

Justice is when lamb is empowered to co-exist with wolf. (The wolf dwells with the lamb)

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)

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).

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'.

                                                            (Lord Krishana)

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.”

(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.)