Tuesday, January 29, 2008

Marriage, the only way to dignified living?

Being conspicuous by absence is a popular expression. It would have been everyone’s experience that when you attend a social gathering, and if you happen to get there without accompanying your spouse, the host more often asks about the absence of your partner, than greeting your presence by a warm hand shake or a welcome hug. It has not however, probably ever happened that a country’s Premier is making an official visit and the press and people, diplomats and dignitaries have been talking about the absence of visiting dignitary’s girl friend at the Republic Day celebrations at New Delhi than about the significance of his visit. The paparazzi would have it that Nicolas Sarkozi looked melancholic at the Taj Mahal, making an obvious inference to his emotions without his girl friend, Ms.Carla Bruni. “Le Sarko show” reveals that if Sarkozi decides to marry, Ms.Bruni will be his third wife; Ms.Bruni has herself been never married before and about the institution of marriage itself, she is reported to have said, “Monogamy bores me terribly.” The couple’s unmarried status has led to criticism from conservative parties during their trip to Egypt and protocol would dictate that as boyfriend and girlfriend they would be offered separate bedrooms when they visit Windsor Castle in March, 2008.
The institution of marriage did not arrive by any single fiat of any ruling establishment. There have been several theories for the purpose of marriage. The traditional view is that it is to ensure successful procreation and child rearing. (This theory takes a serious beating from American experience and hence a prescience of what is in store for us. The U.S. National Center for Health Statistics reported that in 1992, 30.1 percent of births were to unmarried women and in 2006 that number had risen to 38.5 percent. In contrast, in northern
Ghana, for example, payment of bride-wealth signifies a woman's requirement to bear children, and women using birth control face substantial threats of physical abuse and reprisals). Another view recognizes that it must have been a slow progress to this stage, when promiscuity gave place to stability in interpersonal relationship between two persons that was the foundation of a family, with procreation as an incidental by-product. A third perspective holds that marriage is an instrument of societal domination and so is not desirable. A fourth is that relationships between consenting adults should not be regulated by the government. It is not uncommon for two or more viewpoints to coexist within a given society.
Marriage requires religious, social or governmental approbation and each has a method of legitimizing it. Almost all the traditional weddings are celebrated by religious- rites-route. The 1967 State amendment to Hindu Marriage Act was the most important piece of legislation, inspired by Periyar’s teachings that legitimized suyamaryadha form of marriage, when any act that expressed an intention of the spouses to take each other as matrimonial partner was sufficient to solemnize a marriage. The legal imprimatur is best secured by registration of the marriage. Sometimes all the three forms of marriage are performed. Religious ceremonies within family, suyamaryadha form for the consumption of rationalists and for show of progressive mindset and registration for practical purposes. In some countries, such as France, Spain, Germany, Turkey, Argentina, Japan and Russia, it is necessary to be married by the state’s prescribed ceremony separate from (usually before) any religious ceremony, with the former being the legally binding one. Civil marriages are all conducted before the eyes of the public, although Australia permits a wedding to be a wholly private affair, at any location, be it a ranch, yacht or in an idyllic beach setting in an unknown archipelago.
There are endless types of conjugal living. Arranged marriages, love marriages, mutah, live-in relationships, gay marriages, lesbian marriages, POSSLQ (pronounced pɒsəlkju, which is an acronym for "Persons of Opposite Sex Sharing Living Quarters," a term coined in the late
1970s by the United States Census Bureau as part of an effort to more accurately gauge the prevalence of cohabitation in American households) and living apart together (LAT). Another new variant is a person in ‘an intimate relationship’ called the Significant Other, also referred to as, sig ot, sigot, sigoth, SigO, or SO. India has recognized a live-in partner, who could be an offender or a victim under the Domestic Violence Act, 2005. In all respects, it is the legitimacy of marriage that is a guarantee for several of the civil rights in India. Property rights, including alimony and inheritance, depend on legally valid relationships. Tax benefits for a ‘family’ will have immediate relevance only to legally approved union. A shared household belongs only to ‘married’ couple. Relationships in extended family through the spouse with suffix ‘in-law’ could be obtained only for legitimate kinship. Above all, unlike in Sarkozi’s case, you will be enquired with genuine concern only if you are or not accompanied by your legitimate spouse and not any other modern variants.

Thursday, January 24, 2008

Legal news in newspapers

Did you know that it was Julius Caesar who started the first newspaper in 56 BC? It was called Acta Biruna. Despite lingering declines in circulation and advertising revenues in some regions of the world, the newspaper industry continues to be a powerful and expanding force. The World Association of Newspapers (WAN) reported that in 2005 that more than 8,000 newspapers were published worldwide, with an estimated daily readership of one billion. According to WAN, the number of free and paid-for titles was up 9% since 2001, which represented about 550 new dailies. A large percentage (76%) of worldwide newspaper circulation was concentrated in just five countries. China is the world leader, with 23 of the top 100 most-circulated papers, while Japan had 22 titles in the top 100. India, the United Kingdom, and the United States follow the lead, with 17, 7, and 7, respectively.
You should pick up the newspaper first before anyone else at home does; when the papers are neatly folded and seem like nicely ironed shirts. Online reading from computer screens are a bore and do not carry the aroma of fresh newsprint. But this new generation of youngsters at home is essentially a generation of “electronic readers”, as opposed to “paper readers”. These youth read, but they read on computer screens, on electronic games and on their mobile phones. They are already “multimedia people” says a news analyst, where as the other generations are “monomedia”. They read the headlines from Internet sites. They discuss on discussion forums and blogs. They look at the broadcasts on information channels on television.
From staying up-to-date to whiling away time, newspapers serve different purposes. All newspapers have a standardized format in consigning to specific pages the kind of news that you have to look for. Sports and obituary columns usually come in the same page, as if to suggest that you shall be trained to take the news of death in a sporting fashion. The editorials in the centre-spread, big daddies always assumed, are a way of ‘improving the language’ and knowing the value loaded statements of the respective papers of what are correct. They used to be a kind of imposition for every boy or girl blossoming to adulthood to be advised to read them. Even small time papers, having only a few thousands of copies for circulation, will have an advice or two to the UN Secretary General or the US President, as though they take notice of their editorials. Big, colorful advertisements in the last page are some times more entertaining than the news-filled pages. Entertainment columns of cinema, dance, drama and daily engagements in the city or town do not merely carry information of time and venue but also portray the dazzling stars and mesmerizing beauties in colorful revealing attires.
A recent study in USA discovered that as people became more successful and earned more money, the order in which they read a newspaper changed. Total failures in life and extremely successful people, at the diverse ends of the spectrum, share the same passion for sports and they make the most compelling read. Gossip and menswear ads are for the mildly successful. Editorials, social columns and real estate are for the definitely successful. Legal news, unfortunately do not seem to be a preference to any category of people in USA. In India, one likes to believe, it is definitely different.
These days, legal news are the most ubiquitous; they are sprinkled all along the length and breadth of the papers and not confined only to any particular pages. Murders and rape stories, gory photographs of frozen bodies of men or women slain are sheer masochist exercises indulged by th
e vernacular newspapers. The English newspapers lap up the celebrity murders and police brutalities to even the scales of reporting with their local languages counterpart. Wherever judges go to inaugurate social functions, they go to make good photo features. Judges are invariably nattily clad, well combed and cheerful in photographs, but what functions they participate may not necessarily have anything to do with law. Our clan could justifiably be proud as masters in subjects as varied as esoteric to mundane, from music to cine masala. Judgments of Supreme Court and High Courts on service and labour issues are more regular than they were in the past. Reports on law making on women and children are a way of showing our concern for their empowerment. Some times there is insipid information on a litigant being compulsorily retired or denied compassionate appointment. Maybe, the judges who pronounced the judgments or the lawyer who argued the case wanted them to be reported.You do not need to have gained wisdom between the time you take the newspaper in your hand and leave it back crumpled on the table. It is the best way of not causing any harm to anyone at least for a brief while!

Villageward, ho!

Striking lawyers and boycott of courts are old news. Striking medicos is the latest thing. Thankfully, they have cried halt to their protests. Doctors of Tamil Nadu and Delhi, from among 262 government and private medical colleges that turn out about 28,000 doctor-graduates every year, seem to be more averse to taking to compulsory service in rural areas than their counterparts studying elsewhere in the country. Kerala government has already enforced compulsory rural service after their minimum 5 ½ year stint in medical colleges for doctors, for the last 3 years. Striking students said that it made no sense to send tyros like them to villages. Why not despatch the well trained, experienced doctors in government service to the villages, they ask? Albert Schweitzer, a German doctor spent most of his life working in remote Africa. The renowned doctor and author, who wrote by the name, A.J. Cronin ( have you read The Citadel?) spent practising among the mining communities and his novel was the basis for establishing the UK’s National Health Service. They are all foreign examples; why remind them, do you say?

Look at the several ways by which people have to be sent to villages. There is no natural lure to the idyllic villages of India. Looks like, the compulsion has to be secured through legislation. Karnataka issued State Civil Services (Regulation of Transfer of Teachers) Ordinance in 2006, which contained, inter alia provision for compulsory teaching service in rural schools and Pre-University classes for a minimum period of 2 years. The Union Government brought a bill in 2005 for Compulsory and Priority Electricity Supply to Rural areas, Agriculture and Cottage Industries that aims to bulk-supply power to boost agricultural production and employment generation. It is a way of holding out an olive branch for the rural folk to stay back without proliferating to towns and cities. Recent years have witnessed unprecedented interest in micro-credit and micro-finance especially because of the facility of collateral-less group lending. In fact NABARD has successfully generated the largest micro-finance networking the world by linking the various Self-Help Groups with the banks, called the SHG-Bank Linkage programme.

We, too, as lawyers, have been shown the way to villages. The 114 Law Commission Report, 1986 envisages the establishment of Gram Nyayalays and states that Article 39A of the Constitution of India provides the foundational basis. The report points out that Article 40 which directs the State to take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government, has to be appreciated afresh in the light of the mandate of the new article 39A. Strengthening the institution of Panchayats and empowering people at the grass-root level to resolve their disputes amicably would, according to Justice S.B.Sinha, solve many of the problems that are faced by conventional justice dispensation machinery in its attempts to percolate to the lowest levels. This would provide a solution to the problems of access to those living in remote regions. Certain states like Bihar, Uttar Pradesh, Uttarakhand, Jammu and Kashmir, Himachal Pradesh, Punjab, Madhya Pradesh and Chattisgarh are reported to have already made provisions for establishing Nyaya Panchayats. In Tamil Nadu, decentralisation of civil and criminal courts have helped established the courts at taluk levels. We have no formal system of disputes resolution in villages, except that Tamil films show the Panchyat President seated under a large shady tree on a high pedestal surrounded by his cohorts handing down rough and ready justice. They will marry the rapist to the victim; parade the thief on a donkey; dot the out-law with black and red spots of paint on the body to humiliate and in fact do everything that is anathema to justice and fair play. The film-like , larger-than-life panchyati needhi often borders on rowdy-justice that goes by the sobriquet katta panchayat. The legislature has even taken note of the existence of this ugly institution and has enacted a law to punish individuals who don this role for enforcing money claims at usurious rates of interest.

Do you fancy the law ministry to suggest to law students or lawyers to do compulsory rural service in villages for 2 years, like they have plans for doctors? It may not be a bad idea, given the tough living conditions in the city and the competitive edge that you may have to encounter, what with the new talents from the National law schools and big-time law firms flaunting their professional prowess in cities!

Losing a case, goat sacrifice or guillotined?

All religious practices admit of animal sacrifices and they represent the occurrences as modes of expiation of sins that human conduct is susceptible to. Of them, goat is special. There are rituals connected to this blighted quadruped among Romans, Hitttites, Indians, and Tibetians. Our Muslim brethren have recently celebrated Bakrid. On this day a goat or Bakr (Urdu) is offered in sacrifice to commemorate the sacrifice of Prophet Ibrahim, who willingly agreed to kill his son at the behest of God. According to Islamic belief, to test Ibrahim's faith, Allah commanded him to sacrifice his son Ismail. He agreed to do it but found his paternal feelings hard to suppress. So he blind - folded himself before putting Ismail on the altar at the mount of Mina near Mecca. When he removed his bandage after performing the act, he saw his son standing in front of him, alive. On the altar lay a slaughtered lamb. This festival coincides with the Haj pilgrimage in Mecca. The lamb is Halal, meaning approved food. According to the Christian tradition: “And Aaron shall lay both his hands upon the head of the live goat and confess over him all the iniquities of the children of Israel, and all their transgressions in all their sins, putting them upon the head of the goat, and shall send him away by the hand of a fit man into the wilderness: And the goat shall bear upon him all their iniquities unto land not inhabited" (Leviticus 16:21-2).. Kali Matha wears around her neck decapitated heads of demons slain by her to symbolize the fact that she is a protector of virtues and destroyer of evils. Kali Ma denotes the wholeness of life: life and death, beauty and ugliness, motherliness and destructiveness. The devotee attempts to replicate the example set by the goddess by slaughtering the goat bedecked with a garland. Recently, Nepal's troubled national carrier had taken a spiritual approach to maintenance troubles with one of its Boeing 757s by sacrificing two goats in front of the plane to appease Akash Bhairab, the Hindu god of sky protection, whose symbol is printed on all of Nepal’s aircrafts.

If slaying of goat brings revulsion, what would you say of applying guillotine as a measure of capital punishment? Remember, it was designed by Dr Joseph Guillotine, a man described as kindly and who wanted to make execution more humane. Victims were placed on a bench, face down, and their necks positioned between the uprights. The actual beheading was very quick - often to the gathered crowd's disgust - taking less than half a second from blade drop to the victim's head rolling into the waiting basket. However, debate rages over whether the quickness of the execution was humane or not, as many doctors put forward the notion that it could take up to 30 seconds before the victim lost consciousness. It may be spine chilling to imagine that the decapitated head will know for those seconds that it had been cut and killed from the rest of the body. State sponsored killing have earlier taken several gruesome forms, death by crucifixion, by slow slicing, by burning, by hanging, by electric shock, by lethal injection and now read, by guillotine again. It does not sound to be more cruel than the rest.

We are not talking about intentional murders, but state sponsored killing as corporal penalty. Judges have stood by, in the olden days to confirm that the executions were carried out comprehensively and without default. The stigma unfortunately has not worn off for our venerable judges to this day. The allusion is to dismissal of cases by the judges. Adversarial litigation ought to result in one of the parties winning and another losing. The litigant that voluntarily opts for this process has only to blame himself for ending up on the losing side and hence ought not to complain against the judge. A loser invariably talks about the knife in his neck, the arrival of smooth shaves of max III, notwithstanding. If the judge has sweet talked to an adverse judgment, it is talked of as halal, a welcome result to a worthy contest. If the dismissal is instantaneous and brooks no lengthy reasoning, it is talked of as being guillotined. Of judges, who till a short while ago, were themselves lawyers, understand all this exclusive expressions very well. Some of them even ask lawyers in good humor, what type of execution their client would want! We react in different ways. To some, withdrawal is honorable; to some others, an adjournment gets them the chance of trying their lucks with some other (sympathetic?) Bench. A sizeable few opt to take soft, kind hearted dismissals, with no costs. The majority still prefers the guillotine to retain the briefs and take chances at the higher forums.

Every litigation is a war; and all is fair in love and war, eh?

Assassination, forget the hateful word

What was your feeling when you heard that Benazir Bhutto had been shot on 27th December 2007? Politicians are the only types who are adored and hated in equal proportions, often in gigantic proportions at that. The killings of politicians have this unique expression, ‘assassination’ that does not apply to others. The very word simmers in blood and violence. Shakespeare is believed to have invented the word. He uses the word 'assassination' first in end of Act I of Macbeth, where Lady Macbeth is convincing Macbeth to kill Banquo. The etymology is a mutation of the Arabic "haššāšīn" (حشّاشين). However, there are those who dispute this etymology, arguing that it originates from Marco Polo's account of his visit to Alamut in 1273. , in which he describes a drug whose effects are more like those of alcohol than of hashish. Latin switched the 'sh' sound for the’s’ sound. Whatever be the origin of the word, it leaves a bloody trail consuming one after another in the same family.
Of the times after 1960, John F Kennedy’s death brings the most chilling memory. On Friday, November 22, 1963, he and Jacqueline Kennedy were in an open limousine riding slowly in a motorcade through downtown Dallas. At 12:30 PM the president was struck by two rifle bullets, one at the base of his neck and one in the head. He was declared dead on arrival at the hospital. Almost simultaneously, one would remember his 3 year old son’s poignant salute at his father’s funeral and it was a cruel fate that the kid grew to be a handsome man to get killed in a tragic plane accident. Robert F Kennedy, U.S. attorney general and adviser during the administration of his brother John F.
Kennedy was himself assassinated while campaigning for the presidential nomination a few years later. In this part of the world, S.W.R.D. Bandaranaike who became Ceylon’s prime minister in 1956, was assassinated in 1959. His wife Sirimavo soon became the party leader of Sri Lanka Freedom Party (SLFP) and went on to become the prime minister herself. Her daughter Chandrika had been active in the SLFP and married the film actor Vijaya Kumaratunga in 1978. He was assassinated in 1988. At home in India, Indira Gandhi was assassinated on 31st October 1984 and on the same day Rajiv Gandhi was made the Prime Minister. He was decimated, in what followed a global pattern to several such episodes, by a suicide bomber on 21st May 1991. Benazir’s family had a fair share of unnatural deaths due to their life in politics and the enemies that their profession earned for them. Before her, her father and her brother had been eliminated as politically inconvenient by the ruling establishments.
It all proves one thing: politicians are the softest target to be eliminated in cold blood. Is it that power is the most coveted attribute to human attainment and jealousy is the strongest motive for pulling the trigger or sticking the dagger? Maybe so, in the days of monarchy. Not anymore. They need not even be hankering after power. The sheer presence in the arena of politics is sufficient to win as many enemies as followers. If it were not so, how could you explain the Mahatma Gandhi’s killing? The later Gandhis also lost their lives not to political aspirants but to killers who purported to avenge their own hurt caused by the policies pursued by their human targets.
A macabre incident happens at the end of the year that eclipses every other worthy event in the same year. The electronic media capture every detail of killing that you smell blood in your own drawing room. If you have been fortunate not to have watched the video footage, the morning newspapers carry colorful photographs taken by high resolution maxi pixel cameras. What has been your way of beating this morbid feeling of revulsion caused by such mindless killings? Margazhi offers delightful escapades in Chennai and other major towns in Tamil Nadu. Were you a part of the crowd of listeners to music concerts? Did you not go to religious discourses of eminent men of learning of Tiruppavai or Thiruvenbavai?
There is a life beyond law. Denning, the most quoted and quotable person writes delightfully on ‘Leaves from my Library’, where he declares proudly that he managed to write another book, even at the age of eighty-six. The anthology contains the war rhetoric of Winston Churchill, Shakespeare’s Merchant of Venice, fine prose of Somerset Maugham, moving tale of Thomas Hardy, John Bunyan’s Seeking Salvation, Chaucer’s narration of history with a deft touch of humor and 14 more topics. You do not need to pick up the trail by the same choice of reading material. It tells you that men of law were not men merely of law. They had interests beyond law. Cast away law books, newspapers and TV shows for a while and do what you now know what!

Racism, the worst scourge

Have you heard of a coloured person being accused of racial practice? If the answer is yes, we are confronted with a situation of an oxymoron, the same way as we could be talking about a legal murder or a wise fool. A racial slur could be hurled by only a person that is socially depicted as superior against a person perceived as inferior. A black man cannot indulge in racist remark by calling a white man as white, while a white man would be accused of racial innuendo if he refers to a black man by his colour. To accuse an Indian, such as Harbhajan Singh as having indulged in a racial remark against Symonds, an Australian is ex facie untenable. It is obvious that the Australians have a racial mindset because they do not see Symonds as belonging to their own race and see him only as a descendent of the aborigines of their country. It is an irony that a South African, Mike Proctor, who till yesterday was practicing apartheid in his country delivered the verdict and sentenced Bhajji to a three test ban.
Australians are known to be the worst practitioners of racism. Their country had a declared ‘all whites policy’ for their immigration laws till very recently. Just the other day, Dean Jones called Hashim Amla a terrorist his cricket commentary and later said the he forgot to turn the mike off and it was after all no more than a silly statement. There have been terrible on field misdemeanors by Australians that Gavaskar walked out at Melbourne in 1980; Javed Miandad raised his bat against Dennis Lillee, showing finally that enough was enough. R.G. Griffiths, Associate Professor in History at Flinders University of South Australia and author of Contemporary Australia acknowledges that whereas New Zealand took every opportunity to apologize about the discriminatory and abominable treatments against natives , Australia flew in the face of public opinion. At a specially staged reconciliation meeting with Aboriginals in Melbourne, their Prime Minister, Howard said only that he was sorry for the hurt and trauma many continued to experience as a consequence of past practices and that he himself felt a deep sorrow for those of his fellow Australians who suffered injustice under the practices of past generations toward indigenous people. Howard insisted, however, that "in facing the realities of the past we must not join those who would portray Australia's history since 1788 as little more than a disgraceful record of imperialism, exploitation, and racism."
The courts of Australia have however done remarkably to redeem to the aborigines what was due to them by remarkable judgments. Until 1992 Australia had been regarded by an 18th-century legal concept as an empty continent where the indigenous inhabitants had no rights to ownership. But a ruling of Full Court of 5 judges of the High Court of Australia in Eddie Mabo and ors v The State of Queensland (1992 Aust Highct Lexis 86) overturned two centuries of legal practice by deciding that Eddie Mabo and other residents of the Murray Islands in the Torres Strait, who brought a case against the commonwealth, owned customary title to their land. This sensational and unexpected judgment, known as the Mabo decision, established that Aboriginals had the right to claim title to traditional lands. When Prime Minister Paul Keating's Australian Labor Party passed the act of Parliament in 1993 and turned the High Court ruling into law, however, the government excluded pastoral leases (very large tracts of land leased to farmers and ranchers) from native claims. The legislation led to a crisis of confidence in the mining and resource industries. Uncertain about the ownership of land, investors were inhibited in their prospecting and exploitation of minerals, oil, and gas. The Queensland premier, Rob Borbidge, called for an emergency premiers' conference; the National Farmers Federation asked for action to overrule the decision; and many Australians believed that every backyard in Australia was under threat from an Aboriginal land claim.
R.G. Griffiths further chronicles that Keating's Labor government fell in 1996, and the new conservative administration under Prime Minister John Howard set out to rewrite the statute book as far as Aboriginal land rights were concerned. Howard moved quickly as soon as the High Court had ruled on a second landmark case brought by the Wik people. The High Court ruled in the Wik Peoples v The State of Queensland and ors; the Thayorre People v The State of Queensland and ors (1996 Aust Highct Lexis 76) that pastoral leases and native title could coexist. Howard was aghast to find that potentially 78% of Australia's land was claimable by Aboriginals under the Wik judgment. The National Party (the junior partner in the government) led the chorus of outrage against the High Court judgment. Howard made devised a 10-point plan that eliminated many of the Keating reforms. Claims dealing with water and offshore resources were to be wiped out, as were claims in which government infrastructure was involved. Aboriginals would be able to enter land to hold ceremonies, visit sacred sites, obtain water, and gather food, but they would not be permitted to interfere with crops, livestock, pastures, or fences. The complex new legislation, 400 pages long, contained, according to the jubilant deputy prime minister, Tim Fischer, "bucket loads of extinguishment." Native title was to be abolished on pastoral leases when it would interfere with the rights of the pastoralist. The Aboriginals had nothing left except "bucket loads of litigation". To get back to Bhajji episode:
A sikh in India suffers more ridicules on any other person by reference to his religion, his physical appearances through turban, beard and what lies beneath his turban and manifested through his intellect or lack of it. They are however an admirable lot. You may make reference to the clichéd bara baje joke to a Sardarji, who will laugh with you at the very mention of the particular time and not take any offence. They are great sports persons, excelling in hockey, wrestling and kabbadi. They are singers and dancers. Who will deny the rightful place of bhangra dance as representing the quintessential cultural exposition of the very best of India? They are fun loving, enjoy their evening drinks and revel in every thing that reminds them of the smooth contours of the wine glass! You do not even go to the old history of Guru Tej Bahadur and his martyrdom or the life history of Guru Gobind Singh that gave birth to the Sikhism to recount the great sacrifices made by the community and the sheer grit and valor they exhibited against national enemies. They suffered ineffably during the partition and again suffered heavy casualities, post Indira Gandhi’s assassination, as a measure of reprisal for the stupid acts of some misguided handful of Sikhs.
While it could be said that Bhajji could not have simply indulged in a racial face-off, it is important to recognize that there cannot be any experience more hurtful than racial abuse or what happens more often in the Indian context through casteist slurs. And great men of law have set their poignant times through heart wrenching memoirs. Have you read Clarence Thomas or Ambedkar? More about what they have written later…

Land Acquisition, a sure way to life long litigation

The deletion of property as a fundamental right by the 44th amendment was made in the context of agrarian reform and prevention of economic concentration of wealth. No one thought at that time that liberalization policies would woo the rich to such an extent that there would soon be reversal of trend when lands would go to the hands of the industrialists on specious grounds of rewarding them as promoters of progress and prosperity. SEZs and infrastructural developmental needs are seen as the new mantra to supplant farmers’ needs to hold their lands. Probably, we have come a way far ahead to resist change. Could there at least be attempts to ensure some statutory changes to placate the righteous indignation against the systematic deprivation of property from farmers for establishing industries and for laying roads? The establishment of SEZ at Ghaziabad by acquisition of fertile agricultural lands has fanned the controversy centre-stage to transport it as public interest litigation before a three member bench of the Supreme Court.
Land Acquisitions have always been source of heart aches. From Chiranjitlal Choudhry to Kesavanda Bharati to Narmada Bachao Andolan, the recurrent theme has been the unwillingness of the owner/ possessor of land to part with property. Again, from individual remonstration to collective ire, the problem of acquisition has snowballed to gigantic proportions. The 17th century empiricist philosopher, John Locke’s idea of personal property and the justification to hold it was based on the predilection of property owner, who added value to what was available in nature and retained it for his livelihood and for sharing with his family. Marx and Engels saw as human perversion the idea of creation of capital through property holdings to subjugate labor. Now Budhadeb, the communist party chief minister confesses that capital is inevitable. Whatever be the philosophical underpinnings for the driving force for holding property, the requirement of ‘public purpose’ has been the touchstone for its acquisition in all land acquisition laws.
The century old Land Acquisition Act has undergone several important amendments. The 1962 amendment required the acquisition of land for a company to be used directly for public purpose. The 1984 amendments were the most significant, when it redefined ‘public purpose’ more expansively, made provision for speeding up the process of acquisition by limiting the period of acquisition from the date of declaration under section 6 to the date of passing award, increased solatium from 15% to 30% , as also the rate of interest for the compensation itself and enabled persons who did not secure enhanced compensation at the first instance to take advantage of the compensation determined in the same award by other owners. The Tamil Nadu amendment Act of 1996 made possible the reversion of ownership to the landowner, if the property was not put to use. It further made null and void sales of property by companies for whose benefit the property was originally acquired.
The problems still linger. Mere enactment of laws for acquisition of property and providing compensation do not guarantee that the process could be peaceful. Sirgur and Nandigram, Meenjur and Meenambakkam have been recent stories of massive public protests. Land acquisitions are mired in the hotbed of politics. Politicians work full time to keep the controversies alive by inciting one group against another. The right of re-purchase has no meaning in the absence of definite time limit within which the property shall be put to use by the requisitioning authority. Otherwise, as the Supreme Court has in a recent judgment held there is no inherent right for a citizen to demand a resale when the government, in its power of eminent domain has not chosen to forsake its claim over the property, after its initial acquisition. There is no statutory basis for rehabilitation and employment for a person whose land is acquired. Alternative sites are more in the nature of executive promises that are susceptible to bureaucratic delays and nepotism than concomitant legislative obligations that are enforceable. Provision for employment by the industry is presently in the nature of charity and not guaranteed. If it is provided, it is for the existing generation of owner who has lost the land and only to one member and not to the whole family which has lost the property. The government orders and circulars against acquisition of fertile lands and acquisition of places of worship have no statutory force and consequently, the government itself often breaches with impunity the restriction against acquisition of valuable lands and exposes the danger of a owner losing the property for less important uses. There is ever an unwillingness on the part of the government to pay adequate compensation and engages the parties in long drawn litigation against the awards.
The moral of the story is, you need not own real property. But surely cultivate a constant relationship with the person that holds property. He will lose it one day and his vicissitudes will keep the lawyer busy for the rest of his life.

The day of judgment

For us lawyers, the defining moment in a case hard-fought is the occasion when the judgment is pronounced. What do you think breaks or warms the heart for a publisher or an editor of a law journal? How far have we won the approbation could be estimated not merely by the strength of our readership. May be, for newspapers and TV channels the readership quotient will assure to them increased revenue and a justification for hiking the advertisement tariffs. In a law journal, there is no advertisement to boost revenues. The readership runs only in terms of thousands and even apart from minding the number of subscribers, we can judge ourselves only by what we have done. We set the judgment day as 31st December 2008 and here are the results. In 2007, we have published 6 volumes in regular weekly issues and 2 volumes as supplements. The reported Madras HC judgments were 895 and of the Supreme Court, 282 judgments. Volume 7 (Supplement) had a tally of 127 and 52 respectively of Madras HC and SC judgments. The volume 8 (Supplement) that you are soon going to have will have Madras HC judgments numbering 155 and of SC, 35 approximately. Just for the sake of record and in comparison , in the last decade, between 1998 and 2003, there had been 3 volumes per year and 1 supplement each in the years 1999, 2000 and 2001 and between 2004 to 2006, they were 4 volumes per year.
The number of judgments pronounced has registered a gradual increase, a la Malthusian theory of geometrical progression of population. The paper quality, including the wrapper, has improved. The value additions through elaborate head notes and deciphering ratio(nes) decidendi have been made possible by hard work of our knowledgeable reporters/head-noters. The work of our experienced proofreaders had been remarkable as well. The journal section has been made a permanent feature, week after week, with incisive critique of judgments and articles of topical interest contributed alike, by lawyers and students of law schools. We believe, we have been able to put in your hands a wholesome product all the while from January through December. We will hopefully improve the product by bringing in for the readers short notes of English and American decisions in so far as they are relevant in the year 2008.
So, how shall we package our issues from the beginning of 2008? We began the year with a holiday, a sure way of marking revelry for the arrival of a new year. New Year always begins with resolutions and prophecies. The headnotes will track any important judgment that the particular judgment omits to mention and the consequence thereof to measure the strength of the precedent value. At the end of each volume we will give parallel citations of other journals and include in the same judgment cross-references wherever they exist. As regards prophecies, paradoxically, all soothsayers do not say soothing things. The practice of reading panchangam on the Tamil New Year day is a way of reminding ourselves of what would happen in future. If there is a prediction of prosperous times, it will be invariably received with cynicism. If Panchangam said that there would be devastation through rain or sarva nasam by human conduct, it would be received with utmost seriousness, as though it proved beyond doubt that kali was heading us towards doom. As for us, there seems nothing to look for except rose petals, milk and honey! If Tamil gains currency in courts as an official language, we will get bilingual and have the headnotes also in Tamil. Writing judgments in Tamil may still take some time. There has been a persistent demand for increase in numbers of judges. More judges will dispose more cases and there is bound to be an increase in the volume of the pronouncements. We will hopefully report them faster and upload them simultaneously in the web page. The web content in the home page of the journal will improve and advanced search tools will help you track the decis
ions that you are looking for in a trice. All judgments of MLJ from 1892 will be compressed from the room space of data printed in books and stacked in wooden/steel almyrahs to your palm size through a CD Rom.
Do not believe that justice is possible only through working the court system and books. ADRs have immense relevance and put them to judicious use. Help the parties to resolve their disputes on their own terms. The big-sized law firms and costly lawyers of the west may be models to replicate in some cities and large towns, but our litigants are still poor, by and large. At the risk of sounding platitudinous, let us make the system work for the common man also. The MLJ wishes all readers/subscribers the very best for the whole of 2008 and for the years to follow.

Boycotting lawyers

Bandhs are not legal; there is no fundamental right to strike and boycotts are not ethical. Each of the forms of protest has been discredited by the Supreme Court. To unionists and politicians, they are hateful pronouncements. For the peace-loving citizen, they are distilled expressions of sanity. On which side are you?
Just as a handful of lawyers were busying themselves to expound the illegality of declaring bandhs, which countered the Supreme Court’s specific injunctions, more than a mere motley crowd of our fraternity gave expressions to boycotting courts. No one used the argument that the section of lawyers were indulging in a type of action that was pronounced as unethical and unprofessional. Is there a merit to boycotting courts, regardless of what the Supreme Court has said about it?
Bandh, as a desi form, is gift of Bharath to the world; strike is an innovation of organized labor to force a bargain against capital; boycott was what was practiced against Boycott! Wikipedia traces the etymology to an interesting historical event of social ostracism practiced by Irish peasants in 1880 against Captain Charles Boycott, the estate agent of an absentee landlord, the Earl Erne, in County Mayo, Ireland, who demanded exorbitant rent on the pain of eviction for default. The tenants heeded to the call of Charles Stewart Parnell, in his Ennis Speech that rather than resorting to violence, everyone in the locality should refuse to deal with him. Despite the short-term economic hardship to those undertaking this action, Boycott soon found himself isolated. This action taken against him meant that Boycott was unable to hire anyone to harvest the crops in his charge and he had to hire men from far away country , with police escorts to do the job that left Boycott spending more money on labor than what he gained by harvest. After the harvest, the "boycott" was successfully continued. Within weeks Boycott's name was everywhere.
Wikipedia chronicles further: It was used by The Times in November 1880 as a term of organized isolation. According to an account in the book “The Fall of Feudalism in Ireland” by Michael Davitt, the term was coined by Fr. John O' Malley from County Mayo to "signify ostracism applied to a landlord or agent like Boycott". The Times first reported on November 20, 1880: “The people of New Pallas have resolved to 'boycott' them and refused to supply them with food or drink.” The Daily News wrote on December 13, 1880: “Already the stoutest-hearted are yielding on every side to the dread of being 'Boycotted'.” By January of the following year, the word was being used figuratively: "Dame Nature arose....She 'Boycotted' London from Kew to Mile End" (The Spectator, January 22, 1881).
It is an irony that Mahatma Gandhi, the greatest exponent of non-violence practised the above forms of protests against the British to emasculate the tyrannical British Raj and expound the swedeshi ideal. We are master craftsmen in perverting or perfecting (depending on what your perceptions are) the tools of protest. Boycott today is violent, involuntary (whether you want or not, you are forced to join the bandwagon) and inflicts injury to the harmless litigant, against whom there could be ‘no cause of action’. It is a case of ‘same-side-goal! The litigant seldom knows why his lawyer, who has been paid, does not turn up in courts to present his case. If he knows the reason, he watches in dismay how even the tongue-tied lawyer in courts has found his throat to full oration and lungs to full bellowing power outside courts.
Invariably, it is the ire against the police that lights the first spark for the fulmination. Recently, it was the demand by a hospital male nurse for money at the time of admission of a bleeding lawyer in a motor accident that started the quarrel. The police on prowl reportedly teamed with the hospital staff to beat up a lawyer. Does not the lawyer know that he cannot walk out of the courts with an interim order, without minding the menial that opens the door, for tea or coffee or the term fees for his child in school or hospital expenses for his spouse? Persons that give evidence or sign muchlikas know as well that their signatures cost money. How come we get offended that someone at the hospital asks for money for getting admitted? An erring police shall be suspended; what if the lawyer errs?
Lawyers have different motivations for the boycotts. The lawyer that understands life’s struggle as a dialectic experience will see them as inevitable democratic expressions. The philosophical underpinnings of the practitioner make him accept the boycott without a whimper. The lawyer who has no practice has nothing to lose. The boycott gives him a homogeneous identity with the idealist. The busy among the lawyers has no choice. He does not want the depiction of a black-leg. All in all, it is not difficult to push the agenda for a successful boycott. The beginning and ending of this inert practice is invariably proximate to weekends that assure a long holiday. As Boycott gave his own name to the form of practice against him, a lawyer will one day give this word a new identity and on that day, lawyering would mean boycotting!