Wednesday, August 08, 2007

With cell phone, in jocund company

What do you make of red coloured walls in court premises? Some of the walls inside our High Court premises have been painted red recently. Bureaucratic lethargy is also conjured in the mind as preserved through red walls. If you are walking past the musty files strewn about in the corridors, waiting to be re- arranged in the steel shelves, you will realise, the mix of colour and smell give you rather a glum feeling. Courts are rather un-amusing places. Your own perception of what is just and what result that you can obtain for your client put you through an unenviable ordeal, when you enter the court halls. A judge knitting his eye brows to get at the truth through the facts and law enmeshed in a cumbersome snare of arguments is weighed down to hold a tough countenance.

However, cell phones have contributed their own bit to enliven the lives of all persons, notably lawyers in courts. Lawyers with cell phones, who are walking in the corridors or standing under the trees or sitting in the lively benches outside court halls, present themselves in various moods, depending on the persons that are holding the conversations at the other side. The ‘switch off cell phone’ warnings on the court doors, notwithstanding, they ring, tweet, hoot, sing, drum at all times through the court proceedings. Reactions to them vary from among the judges, court staff, lawyers and litigants.

A lawyer speeding out of the court hall is probably choking the instrument with his hands inside the coat pockets, when his fingers are not nimble enough to silence it by pressing the correct button. The judge looks up to the sound of disturbance but he normally lets it pass. Litigants face a rather stiff chase. Chopkidars trot out speedily to catch the culprit and snatches the instrument to hand it over to the court officer. One thing is certain, the ringing cell phone is an object of revulsion, its possessor, a guileless character at that moment. It requires therefore enormous resourcefulness to appreciate a moment of levity in the rather mundane, humourless forays within the court halls.

Recently, when the cell phone rang and not knowing where the sound was coming through, every one in the court hall looked up in embarrassment to spot the offender speeding out. The judge looked up too, leaned on his large table and queried with a twinkle in his eyes, ‘why does that person not have the latest ringing tone’? The lawyers just loved the interlude and broke into laughter. Yet another time, when the cell phone rang, the chopkidar, sitting near the judge facing the lawyers, sprang to his feet to trace the source of sound. He soon realised that it emanated not from the direction opposite to him but came from behind. He turned round and just then the judge slightly lifted himself from seat and pulled out the gadget from his pant pockets to switch it off! Now, the lawyers did not smile back; they exchanged glances with their friends with glistening eyes, by suppressed laughter! Some time ago, when an officer from the registry had been called to receive some stiff warning for some act of indiscretion reflected through some docket entry, he was standing near the judge’s table, when his cell phone rang. He dropped the file that he was clutching at and pulled out the cursed instrument to switch it off. The lawyers froze but the judge just smiled, asked him to leave the hall and see him in his chambers during the lunch recess!

SMSes are less intrusive and still lesser disturbance-prone. SMS jokes are a new genre and they also add spice to relieve the court room dreariness. They transport a whole lot of hilarious material, traversing through distant continents. They are meant to be discarded instantaneously or forwarded only to your most intimate friend! They shall not be, as a rule, allowed to be read from your gadget. Even when the recipient is standing next to you, the practice is to send it to his number for him to read it from his own cell. A joke through SMS is a personal possession!

Spontaneous laughter says Arthur Koestler in his book, ‘The Act of Creation’, is produced by the co-ordinated contraction of fifteen facial muscles in a stereotyped pattern and accompanied by altered breathing. Its manifestation may vary from smile to broad grin to the facial contortions typical of the loud laughter. Civilised laughter is rarely quite spontaneous. Amusement can be feigned or suppressed; to a faint involuntary response, we may add at will a discreet chuckle or a leonine roar; and habit formation soon crystallizes these reflex-plus-pretense amalgams into characteristic properties of a person. Whatever the type of person you are, carry humour with you always. Let the civility of the occasion, time and place dictate the decibels of that expression!

Lofty men in black robes!

Mr. Iftikhar Muhammad Chaudhry was reinstated as Pakistan Supreme Court Chief Justice by the judgment of the 13 member Bench of the Supreme Court on 20th July 2007. In a second part of the verdict, the Supreme Court, 10-3, threw out the reference against the Chief Justice filed by President Pervez Musharraf, calling it illegal. Earlier, Chief Justice Choudhry was engaged in doing precisely what the administration least wanted. He aired its dirty laundry and issued judgments seeking rectification. In 2006, he blocked a government bid to sell the majority of the state-owned Pakistan Steel Mills to a private consortium, a blow that proved a rare and embarrassing check on the administration. Following public outcry in January 2007, the judge also compelled the government to trace the whereabouts of terrorism suspects, many of whom had been allegedly jailed without evidence and prevented from contacting their families. When results were not produced fast enough, he chastised a government lawyer and expressed disappointment with the administration's efforts, a spat the media seized upon.
On 9th March 2007, General Pervez Musharraf virtually suspended Justice Choudhry from the high office on charges of misconduct. If you would want Musharraf’s side of the story, according to him: (i) CJ forced government officials to unlawfully help his son get admission to medical college and then had him appointed as Grade 18 Police Officer. (ii) CJ was entitled to use a 1700cc car, but he used a 3000cc
Mercedes and kept several other vehicles in his use in Lahore, Islamabad and Karachi. (iii) CJ required more protocol than he deserved. (iv) He required senior officials to receive him at airports and was also using helicopters and planes to go to private functions. (v) Use of a BMW Car "RAZIA 1" by his family. (vi) Different Oral and Written Orders in cases worth 55 million PKR. (vii) Asking for more perks than he was eligible for.
Within hours, the public and the lawyers rallied behind the Chief Justice to support him. On 12th March 2007, lawyers across Pakistan began boycotting all courts. There were widespread protests in cities of Lahore, Karachi and Quetta. In Lahore alone, more than twenty lawyers had been injured in clashes with police during demonstrations. What started with lawyers’ protests outside courts, in the streets, ended fortunately through a judicial denouement, was significant victory to the rule of law administered through the system of courts.
Who said that lawyer community has a crab mentality of pulling its fellow beings to doom in times of adversity? Forget small time occasions, when someone amongst them is considered for things slightly higher and petitions go aplenty against the candidate. Put up even an imaginary name as a likely candidate, the complaints box would still be full against a non-existent candidate! But symptoms of mass behavior have been exemplary, when it comes to upholding the independence of judiciary. On 25th April 1973, three eminent judges, Hegde, Shelat and Grover JJ had been superceded and a judge junior to them had been made the Chief Justice. The governing establishment said that they were looking for ‘forward looking’ men who understood the ‘winds of change’. Justice Hidyatullah J represented an emotional concern of the Bar in one word. He said that this was an attempt of not creating 'forward looking judges' but the 'judges looking forward' to the plumes of the office of Chief Justice. On 26th April 1973, the Supreme Court Bar Association passed a resolution strongly condemning the supercession and called upon all Bar Associations in India to observe 3rd May 1973 as Bar Solidarity Day and to abstain from court work. The call was enthusiastically supported by most of the Bar Associations all over India. This was probably the first occasion when the lawyers resorted to boycotting courts, which have become commonplace to express dissent to all types of situations affecting the dignity of the legal fraternity.
Musharraf wanted Choudhry out of way only to clear the decks for an easier extension of the Presidential term when the elections were scheduled around November 2007. With Choudhry firmly in seat and Musharraf’s strength further undermined by the skirmishes at Islamabad’s radical red mosque, it is Advantage Judiciary! Members of the legal fraternity have aspired for high political offices, though seldom have the politicians aspired to enter into the high offices of the judiciary. Subba Rao resigned his judgeship from the Supreme Court to contest for election to the post of President. Justice Jagannath Mishra was elected to the Rajya Sabha on a Congress ticket. Justice Bahar-ul-Islam got a Congress party ticket and then resigned from the Supreme Court to contest a parliament seat from Assam. All this proves that if Hercules could shoulder the globe, the men from legal fraternity could hold aloft at least the moon!

Legal conundrums

"Words, words, words", says Hamlet, in response to Polonius' question, "What do you read, my lord?" Of course, Polonius wants to know the meaning of the words in the book that Hamlet is reading, but Hamlet's answer suggests that they are meaningless. Polonius then follows up with a clarification, "What is the matter, my lord?" By "matter," Polonius means "subject matter," but Hamlet again deliberately misinterprets. He takes "matter" to mean something wrong (as we do when we say "What's the matter with you?") and answers Polonius' question with a question ("Between who?"), as though someone were quarrelling with someone else.
Shakespeare exposes but a facet of comic situation when every word that we say gets misinterpreted the wrong way and the whole conversation gets to circumlocution. This is not just among ordinary persons’ oral exchanges. What do you think happens in statutory texts, where the desired goal is certainty but words fail? When words convey more than what they are intended?
You have to grapple with a whole lot of rules of statutory interpretations, as when “singular” means the “plural”; “masculine” includes “feminine”; the “present” includes the “future”; “shall” means “may” or vice versa. The expressions may pertain to tense, sex, numerals and what have you!
Recently, the issue before the court was what the expression, “children” meant in a college prospectus; whether it included “grand children” and all the progeny through successive generations. In curtailing the meaning to what the word meant in common parlance, in the context of extending privileges of reservation of seats for admission to educational institutions to children of freedom fighters, the judge showed the absurdity of argument by taking it to the logical end. He wondered if the extended meaning canvassed would not make possible a claim by a descendent of a freedom fighter that participated in the First War of Indian Independence.. He rejected, by the same breath, that even if there might not be any person among the present generation of students who could be children of freedom fighters, it shall not avail to a student to make an artificial construct for a plain meaning of an English expression.
Even under the Indian Succession Act, if the child who is a beneficiary predeceases the testator, the legacy does not lapse but survives to the grandchild. However, a bequest to A and his children or to A and his heirs or to A and his family will be taken as gift to A only. Here the reference to “children” or “heirs” or “family” would be taken as superfluous and discarded. How will you interpret it, if the bequest is to A and his brothers? Discard “his brothers” and give the legacy to A? No, logically, it may be so, but the provision of law would state that the legacy would be taken by A and his brothers. Please also note that the masculine does not include the feminine! The sisters cannot be taken as included, in the absence of specific expression in the bequest.
Again, words which express relationship, such as ‘child’, ‘son’, and ‘daughter’ must be understood as denoting a legitimate relative, says a provision under the Indian Succession Act. How do you reconcile this rule when the traditional Hindu Law accorded to an illegitimate son, subject to some exceptions, a share in the property of the putative father equal to half as much as a legitimate son could get? Later amendment to the marriage law enabled a child born through void or voidable marriages to claim a share to the property of the father as if he were a legitimate child. This change in law did not help, said even a liberal-minded judge, in restricting the bequest only to a legitimate child.
Just not the succession laws, the General Clauses Act have whole lot of expansive definitions. There, the ‘person’ will include any company or association or both, of individuals, whether incorporated or not. The expression ‘sign’ says another definition as including a mark, if it is with reference to a person who is unable to write. A will would include a codicil and a son would include an adopted son.
All this, give us lawyers privileges to be imaginative. Any accidental slip in a document could be explained by supplying words. Poor legislative draftsmanship could be buttressed by expansive interpretation. Expressions in judgments could be given extended meanings or restrictive interpretation, depending on what favors your client. Words, words, words… now, the expression is used not in the sense that Hamlet used but in the sense Polonius wanted to know!

Pain & No suffering

Pain and suffering are a twosome expression that is believed to follow one another, like dark clouds and rain or, that goes well with each other, like, bread and butter. They constitute an important head of claim in tortious action and for quantification of damages. Pain is a qualitative response to an unpleasant stimulus that could be either physical or mental. Physical injury as resulting in pain is more common than psychiatric injury resulting either to a primary victim to the words expressed or to a secondary victim to the scene beholden of a physical wrong done to another. Both the Indian Penal Code and the laws that allow for compensation for civil wrongs recognize physical and mental injuries as coming within the definition of injuries. If a person inflicts pain voluntarily or accidentally to you in a legal relationship that requires an obligation not to cause harm, the act becomes either an offence or a civil wrong. If it is self inflicted, such a consequence may not follow.
When an injury is caused to you, by whatever means, how do you make any sense to it? The answer to it is not always legal and it is in the realm of religion. Medical dictionaries will list several entries to pain but when we are talking about suffering, it is to theology that we turn to. The scientific attitude is just that -- scientific: a methodical, reasoned approach that intends to understand the subject and so achieve human control. The religious attitude, on the other hand, tends to trail off into the big questions. It asks about the meaning of pain and philosophizes about how one can bear pain.
Suffering, the Hindu tradition tells us, is for the body but not to the soul. They are the result of your past actions, of the unfolding of the law of karma. So long as there is body, there has to be pain in some form. The issue is how to cope with it, without suffering. Rabindranath Tagore expresses the sentiment: “Let me not beg for the stilling of my pain but for the heart to conquer it.” Acquisition of worldly wealth does not always yield pleasure. It is the renunciation that relieves the human suffering, the Buddha expounded. Christianity sees pain and suffering as symptoms of the sin in our world. So the pain and suffering in and around us can become occasions for us to turn to deeper realities. They can invite us to repentance, forgiveness, compassion and ministry. Teachers of Islam say that pain and suffering are the ultimate test to humanity to righteous conduct - To see if we will turn towards Siratul Mustaqeem (the Straight Path), or away from it.
The Saint-Poet Tiruvalluvar devotes a whole title (no.63) to the attitude to be adopted in response to pain caused through sorrow and tells us how not to suffer. There is no better technique than laughing away sorrow. Stifle the suffering by equipoise. Realise that sorrows always target human beings and hence do not suffer. The person that does not crave for happiness will not sulk that sorrows bring suffering. Treat happiness and sorrow alike. Confront suffering with cheer; it is a quality that even your enemy will extol in you!
As lawyers, we unwittingly play a vital role in alleviating or adding suffering to innumerable litigants. The litigation itself is pain. If it secures the relief sought for, the suffering is obviated. If it denies it, there is a greater suffering. The one thing that we need to resist is to stop undermining the judicial system by malicious comments. We have the tools to stem the rot. Say ‘no’ to vexatious litigations; have a penchant for research and hone the skills of pleadings and advocacy; have passion for law and strive for justice. In pain and injury, learn to laugh. Lawyers pick up several techniques to let the news of the client’s defeat to unfold: One, by telling the client that the judge has advised the client to go to the higher forum! Two, money has changed hands; three, the courts cannot enforce the decree in the near future; four, a fresh suit is possible to stifle the decree. A lot of us are not given to such crafty ways. We also suffer with the client. It is vicarious. Even if we have personal calamities unrelated to a case we have handled, we attribute our sufferings to some wrong done on behalf of our client to the other side. The best prescription seems to be to suggest settlement. What is your take?