Musings At Law-VI
Being a Judge of a High Court is not given to any and many. In a country of 1.3 Billion, and just about 40 lakh or serious legal practitioners, the privilege to be anointed as Judges, is bestowed on just a couple of thousands, at any point of time. In the days of Chief Justice Chaglas, there was no ‘competition’ to become a judge. They were ‘picked and chosen from the best in the profession’ as Chagla called it. There were in fact competing claims among the best to refuse. It was a ‘sacrifice’ to become a Judge as Chief Justice Gajendragadkar put it. They were compulsively persuaded to become one, and they were ‘as humble and empathetic as they came’ as Justice V R Krishna Iyer.
“Forget the competence, skill set, knowledge and erudition- faculties as empathy and humility have gone out of the window. They behave like Law Lords just because they are addressed so.” said a retired Judge of the Supreme Court, in a personal mail. One was reminded of it, in the context of these series of Musings.
Each one of us, from the legal fraternity, can easily identify such peculiar characters of this genre, among us. Lord Mansfield always said, “Those good days is nothing new.”And he said it in 18th century, mind you. So, ‘this club of Law Lords’ as the retired judge alluded to them, have always existed. Not now, not previously, but always.
We had one among us, a very prominent judge who behaved not as if a Law Lord but as God incarnate. He shall remain Anonymous. He ‘looked down’ upon us from above, and we had to ‘look up’ to him, even for small mercies. He was rarely merciful, even to the deserving causes. He openly said that “We are lawyers first. So Law always takes precedence. Justice, only if law hands it out. Law is language. But it cannot be mutilated for the convenience of the litigant in the garb of being merciful. Even Blind Lady of Justice is presiding deity in the Court of Law, remember.”
It was tough to argue before this learned judge and to convince him, unless the law was straight, simple and specific. No “Do justice in spite of law”- hypothesis of Lord Denning, which was anathema to him. He frowned upon such propositions as judicial legislation and impermissible. There was a bee line of advocates, in every other lawyers’ offices, beating a hasty retreat, when the cases were listed before his court. The corridors always buzzed “Why is the High Court mis-representing as if the cases were posted for ‘Admission’, when they were actually being listed for ‘Dismissal’.”
I recall a petition filed by a nongenarian seeking to condone the delay of 25 days in filing an appeal, to assert his right over a property, which was being denied to him, by the younger ones in the family. The counsel for the Petitioner nonchalantly represented, “Milord, there is delay of just 25 days (loud emphasis) in filing. And I have interacted with the other side, and they have no objection. The delay may kindly be condoned and main appeal listed for early admission as my client is 91 years of age”. Judge, “Have you completed your submissions? Where is ‘sufficient cause’ to seek condonation? There is no cause even, as your affidavit is bereft of it. Who is the other side to say no objection? Then why bring the cause before this court? Why did you not get it heard in the corridor between yourselves? The stamp of approval has to come from this court. That is why I am sitting here.” Counsel, “Mi Lord, I have said that the Petitioner is 91 years of age and 25 days is easily explained. And the cause pursued on merits is impactful, at his age. It is as worthy as it can possibly be, from my experience.” Judge, “From MY (loud emphasis) experience, age is a number and it is no contributor to sufficient cause, when I last read the provision, unless it was amended by any Ordinance lately. Worthy cause is for me to Judge, not you to pronounce. Don’t waste this court’s time with merciful pleadings. If you have nothing useful, let me rightfully condemn it to the dismissal bin, where it belongs. The delay in my view is inordinate and not worthy of the exercise of discretion of this court. This court owes your client no apology, as it is law’s mandate”.
The counsel was furious but was helpless. I promised to take the issue to my benevolent Senior and notwithstanding the dismissal, we entered into a gentleman’s understanding, to protect the interest of the nongenarian, who sent a letter effusively thanking us for our gesture. Justice came to be done despite law.
A week later, we were summoned by the learned judge to his chamber. He told us that his sister was a grieving widow and was now constrained to rely upon the ‘interest from company deposits made by her late husband’. There were also dividend payments, which were not realised by the late husband, and if they could all be brought to life, she can breathe easy. The company deposits were not renewed in time, and the companies were not inclined, as they were bound to renew them only with a ‘break’ period, for which interest would not accrue. The judge wanted us to ‘put in a word to the client companies and the matter sorted out without undue delay’. He said the ‘delay of 6 years was understandable’ as it arose because his sister had been widowed and she was totally oblivious of even the existence of such deposits or instruments, and she had only providentially discovered them, when forced to shift her residence, recently.
My senior and I were sitting in the chamber of the Judge and I had just minutes before briefed my senior on the total lack of empathy of this gentleman and requested my senior to tell him, on his face, on the lack of it, even though we may have been the recipient of the benefit from his lack of empathy. My senior was having none of it. He was not crude enough to be what I wanted him to be. I could not understand why then. But now I understand why, for the instinct of self-interest of a lawyer in practice, may never be worth sacrificing. True to self, my Senior impishly said, “Be grateful the Judge has empathy for at least his widowed sister”. Touché!
We came away with the details, promising to lend the much needed succour and relief to the widowed sister of the Law Lord. Within a week, the logistics were gone through, and the ‘inordinate delay in seeking renewal, stood condoned upon exercise of discretion’ by the Companies’ and the widow received the sums due to her.
I have always carried this episode in my mind, every time I appeared before this Law Lord. That made a huge difference to my representations. I learnt the lesson that more than sympathy for the vulnerable, it is empathy, that men who matter need to have. Particularly those who are ordained to hold the scales of justice in a court of law. The public posturing of the Law Lord to be ruthlessly objective and stick by the letter of the law as an Originalist, was tempered by mercy only to his own kith and kin. You don’t call it Empathy. But something else
Musings At Law- VII
It is no apocryphal tale. C K Daphtary, former Solicitor General of India, was known for his witty repartees. They were not laced with humour alone, but could sting as well. Such practitioners are now long lost in the profession. He was always known to encourage his juniors to represent causes before Bombay High Court, themselves, instead of always seeking his appearance. He reminded them that they were ‘in practice’, as lawyers, and unless they made personal representations before the courts, they may never come good in the profession.
One day, his junior declined to appear on his own, as he felt the Judge in question behaved rudely with juniors as he ‘felt that his stature as High Court judge demanded the appearance of Senior Advocates’. Perforce, Daphtry had to make his appearance, before the concerned judge.
A few minutes into his submissions, the judge asked Daphtary whether he could support his submission with any authority. Daphtary sent his junior to the library to fetch a citation. And passed on the edition to the Judge. As the Judge opened the marked page, he noted a bug. Judge: “Mister Daphtary there is a bug in your book.” Without batting an eyelid, Daphtary responded, “Yes, Milord, these days some bugs do travel from the Bar to the Bench.” The junior was the most pleased with this exchange and shared it with all his junior colleagues.
And Mohammed Ali Jinnah was another of those advocates, who was capable of putting such characters on the Bench, those who were disdainful of the juniors appearing before them, just to pander to their egos, in their place. Once, a local Munsif in Allahabad, in similar vein, castigated a junior and asked him to ‘go bring your Senior’. As Jinnah entered the Court hall, the Judge shouted out, “Mister Jinnah, what sort of juniors you are having in your stable. They will spoil your credibility and standing. They do not belong there. Even basic principles are beyond them. I wanted to warn you, for your own good.” Jinnah: “Your Honour, I am deeply touched by your concern. You are right. The day the junior joined my office, I told him plainly that he was only fit to be a Munsif and not a successful advocate”. Quietness in the court was broken by Jinnah junior’s guffaw, as the Court clerk called out ‘Silence’.
I had experience before the High Court, of a Judge, who was diametrically the antithesis of such characters. He went out of his way to encourage the junior members of the Bar and made it clear to the Seniors that their appearance made no difference, and it would be better, if they let their juniors have the welcome ‘practice’.
I was fortunate with a Senior who was an ‘irresponsible delegator’, as I called him, to his satisfaction. It suited us both. It was 10.25 am on a weekday, with vacations round the corner. The court hall was teeming with designated Senior Advocates, who had lined up to Mention, for emergent hearings. One by one, each of them was declined the request, “It can wait. You can move the vacation court, if you so please”. The last of the Seniors slipped out, not wanting to be slighted. I was wondering what to do. Whether to go ahead and take a chance or suffer the insult, for the sake of the clients.
I chose the latter course. Judge: “Young man, your request for lunch motion is denied. You can bring up the case at 13.00 before lunch”. I rushed out as the entire court watched in amazement, as If I had got god’s own boon, which most of those who had craved got it had been refused.
I came back to the Court by 12.30 p.m., to be well in time. Seeing me standing outside the Court hall, I was asked to come in. “Counsel, I finished my Board work early. I have read your papers. You have made out an excellent case. The PSU entity has no business to snap the lien in employment of your clients. I am granting interim injunction restraining them from acting on their threat. I have verified and found that Mr. X appears for the PSU. I have sent word to him….Oh he is here. Counsel, I have admitted this writ petition and granted interim orders. I am listing this case next week, no matter you file your counter or not and take it from me, I will keep the final order ready, as I cannot see any case for your client to behave in such an unjust manner. Young man, be ready to file a Caveat in appeal, as the present Bench is always inclined to dispose of such matters on admission itself. Good Luck. See you next week.”
It all happened so fast that I failed to see a full court hall waiting to see what was so special, about my cause. God knows what was it the learned judge saw in me that day or this cause. My Senior said, “I have known this judge in practice, and he always felt that he had a tough time as a junior, for he always ‘grudgingly’ engaged me as his Senior, though he wanted to appear on his own, but was compelled to avoid it, as his clients’ cause was paramount, and he made it his life’s mission, to be different, if ever he got a chance. And that, my boy suits me more than it does you’. It was peculiar to see junior advocates being ‘engaged’ by Seniors before that Judge.