WHY THE TEST OF LANGUAGE FOR LAWYERS ?

Article 348 of the constitution of India says that the languages of the Supreme Court and every High Court will be English. However, Article 348 (4) further provides that the Governor of a State may, with the previous consent of the President authorise the use of Hindi language or any other regional language used for any official purposes. Taking recourse to this proviso, some High Courts have allowed making the arguments etc. in Hindi but the decisions to my knowledge, are delivered in English alone.

In my opinion, the use of English should be completely dispensed with. This is right or wrong is an altogether separate issue but it underlines the importance of English language in all courts — right from the Apex Court down to the trial courts. Since the principle of stare decicis is applicable for the judicial discipline; the working knowledge of English language assumes much importance. In the Common Law system, the precedent is one of the main sources of the law. Hence, every advocate regardless of the place or court, S(he) is practising the knowledge of English language hardly needs to be emphasised.

There are innumerable law colleges in Country where nowadays law subjects are taught not through English medium but through Hindi medium or regional languages. Their biggest handicap is in understanding the statues and decisions of the High Courts because their knowledge of English is abysmally and awfully poor. That is why; these advocates often contribute to the miscarriage of justice.

Bar Council of India has now, though, introduced the All India Bar Examination system for enrolling the advocates but this examination is thoroughly inadequate because no test of the candidates of English language is conducted. So much so, the test of English language is not held in the Supreme Court of India for the Advocates-on-Records. Yours truly once asked one of the judges of the Supreme Court of India as to why the English language is not included as one of the papers? He said that it was presumed that those practising in the Supreme Court would be exceptionally sound not only in the law but also in the English language, that was why it was never thought to be on these lines. All the same, the judge said almost in the same breath that he felt that a paper of English language must be introduced.

In fact, this job should be done by the Bar Council of India because the knowledge of English language for citing the judgments of the Supreme Court and the High Courts are the sine qua non for any advocate.

Supreme Court of India must also take initiative in this regard. The Supreme Court Bar Association could have taken the lead but regrettably, the SCBA leadership is mired in other controversies instead of making and positive contribution in honing the art and skill of advocacy.

Yours truly can say it on the basis of the information that he gathers almost every day that advocates, even many seniors suffer from the debilitating effect of the English language. What the SCBA is, however, doing is restricting, the voting rights of the advocates palpably wrong.

So long some basic criterion for enrolling the advocates are not adopted; all talks of improvements in the quality advocates and the membership of the SCBA is bound to flounder on the hard rocks of language ignorance.

Relevancy Of AOR System In The Supreme Court?

The immediate cause of this writing is the controversy that is going on in the Supreme Court about the need and relevance of the AOR system.

I am of the opinion that every advocate must have passed some sort of examination conducted by the particular court to practice there. But it should be not on the pattern of the Advocate-on-Record Examination as is conducted by the Supreme Court of India.

It may be interesting to know that there are three types of practicing Advocates in the Supreme Court. The first category is of Senior Advocates, who have been designated by either the High Courts or the Supreme Court of India.

Many questions have been raised about the designation of 'Senior Advocates' by different High Courts. Many senior advocates have been able to wangle this designation more by foul means than fair. The level of their arguments in the courts proves the point. But In the Supreme Court also there are two ways of getting seniorship.

One; from among the advocates which certainly is difficult and a well deserved honour and the other consists of those who are designated seniors by being the former judges of the High Courts. The convention is that any High Court judge starting practice in the Supreme Court is conferred the designation without any fuss. This indeed is an honour more for the High Court’s than to judges. But do they justify their 'seniorship'? This is a question which always nags most of the advocates and the reply would certainly not be encouraging one.

Then there is the second category of Advocate who are known as Advocates-on-Record. They have to pass an examination with at least 60 per cent marks in each of the four papers namely; Leading cases, Practice and Procedures, Drafting and Professional ethics and Accountancy.

Anybody aspiring to appear in the examination of the AOR should have been enrolled with any Bar Council for at least four years. Thereafter, he or she has to go for practical training for one year with any Advocate-on-Record of at least 10 years standing. Thus the examination is certainly very easy one. However, one often comes across a lot of AORs whose knowledge of law and language is certainly not up to the mark. However, it is an altogether matter.

The point that I want to make here is about the conduct of these AORs. Most of the AORs have reduced themselves to the level of 'name lenders'. Since no petition or document can be filed in the Supreme Court without the signature of the AOR, some of the AORs have got their practice confined only on the signing on the petitions and make money out of it. The main work of the AORs as provided in the Supreme Court Rules is to take the briefs from clients, understand the case, do the research work, draft the petitions and argue the case in the court or brief the Senior Advocate for arguing the case.

The degradation among AORs has gone down to the alarming level and that is why, they have lost much of the respectability, which they used to enjoy once.

There is third category of the Advocates. This is something that defies all logic. One can start arguing the case from the day one of becoming the Advocate. There is no restriction at all. The less said about it the better. Some of the advocates with experience of this category are just brilliant but many of them have abysmally low standard.

There are many advocates who do not understand the meaning and import of the case laws because they do not have any comprehension at all but they never feel ashamed of their colossal ignorance.

This is why, there is an urgent need to assess the basic knowledge of the law and language of every advocate, who wants to practice in any court; be it, lower court, High Court or the Supreme Court. I will write about the improvement in the standard and functioning if the AOR's in my next post.

Impeachment Exercise Gone Waste

Parmanand Pandey

I am posting it on my blog after fairly a long gap of time. During the interregnum the momentous agitation of Anna Hazare took place for nearly a fortnight. Proceedings to impeach Justice Soumitra Sen of Calcutta High Court were conducted in the Rajya Sabha and it was passed with over whelming majority. Anna's movement got tremendous support, particularly from youth of the country. The government that was initially bluffing and blustering started shivering and shuddering a few days later. Anna came out victorious with thunderous applause all over the country.

However, I am not going to write this time on Anna Hazare but on Mr. Soumitra Sen. It is undoubtedly a very sad saga in the annals of judiciary. Mr. Sen was given nearly two hours time by the Chairman to defend himself and prove his innocence after the motion for his impeachment was moved by Sitaram Yechury in the Rajya Sabha. Mr Sen waxed eloquent in his absorbing style and language. There were many members of the Rajya Sabha, who actually came under the spell of his oratory. At one time it appeared that he had demolished all allegations levelled on him and would carry the day. But thanks to the leader of opposition Arun Jaitley, his insincerity and hypocrisy stood exposed. Jaitley tore asunder all his arguments and turned the table. Later other leaders in their speeches buttressed the viewpoints of Jaitley and said that Mr. Sen had no courage to face any of the three enquiry committees, which were set up to enquire into his misconducts.

It is interesting to note here that Mr. Sen never appeared before any committee where he could be cross examined. He deliberately avoided facing the committees knowing it fully well that examination-in-chief without cross examination has no value in the eyes of law. This is not taken as evidence but it is mere statement of an accused, which invariably contains tons of falsehood and only some grains of truth.

Mr. Sen is a typical Bengali bluff master. While lecturing in the Rajya Sabha he said that he was made a 'sacrificial lamb' but he was not a 'quitter'. He would fight it to the last. He would tell the world from the house tops that he was absolutely guiltless. He was a victim of conspiracy hatched by some judges of the Calcutta High Court, who had been jealous of him. He said that the former Chief Justice of India K.G. Balakrishnan, him self a corrupt judge, made him the soft target to show that he was free from corruptions.

There is no doubt that Mr. Sen was not to be impeached for any misconduct during the period of his judgeship but he was being held guilty for the period when he was an Advocate and was appointed a Receiver by the High Court. His conduct as a Receiver was, no doubt, unbecoming to say the least. What actually defies logic is that how could he be appointed in the first place because before the appointment of any person, his bona fides are properly enquired into? People say that Mr. Sen has always been a 'go-getter'. He could induce anybody to do a thing to his own liking. That is how he could pitchfork in the hallowed circle of the High Court judge.

This has compelled every right thinking person to give a new thought to the very system of appointment of High Court and Supreme Court judges. This also proves the point to the hilt that there are a large number of corrupt judges working in the High Courts and the Supreme Court of India and if immediate remedial measures to cleanse the existing judicial appointment system are not introduced, the ingenious and insincere persons would make their way in the judiciary bringing bad name and repute to it.

Mr. Soumitra Sen has now resigned. If he had the courage, as he claimed then he would have not resigned. Although his impeachment was a foregone conclusion yet at least his defence would have become the part of the history in the same manner as the impeachments of Lord Clive and Warren Hastings in the House of Lords have now become the precedents.

The question, therefore, remains, why the impeachment proceedings in the Lok Sabha were dropped? Some say that the impeachment was only for removing the judge, what was the need for the exercise, when he has already resigned? After resignation the impeachment became infructuous. That is very true but the resignation has not washed away his misconducts. Witch-hinting is bad but impeachment should have been gone into, that too, after marathon exercises at many stages. Now all of a sudden when the person concerned has resigned then all his sins do not go in to thin air. This aspect must be kept in mind for the future.

Can Brilliance of Lawyer Obscure Facts?

Parmanand Pandey

Three days back i.e. on 18th of July 2011; I appeared before the Supreme Court of India as the counsel of the Indian Federation of Working Journalists (IFWJ), National Federation of Newspaper Employees (NFNE) and other Unions of Newspaper Employees in a case filed by Anand Bazar Patrika Group of Newspapers of Kolkata. It may be mentioned here that Anand Bazar Patrika group is a big group of newspapers, which publishes the largest Bengali daily, 'Anand Bazar Patrika', prestigious English daily 'The Telegraph' and the business daily, 'Business Standard' and one famous Bengali literary magazine. Two very famous weeklies like; Ravivar (in Hindi) and Sunday (in English) were being published from this house but their publication has been ceased for more than one and half decades.
Before the independence of the country, 'Amrita Bazar Patrika' (English) and 'Jugantar' (Bengali) were ruling the roost in the West Bengal but after the freedom was achieved Anand Bazar Patrika's circulation jumped by leaps and bounds and within no time, it left all newspapers from West Bengal far behind. Its popularity was at zenith during the Bangladesh was in 1971, when it cudgels on behalf of more than ten million refugees, who took shelter in India to save their lives.
This newspaper has although been considered as a good paymaster for its employees. Yet, strangely, it has now filed a petition under Article 32 of the Indian Constitution for scrapping of the Working Journalists Act and also for setting aside the recommendations of the Majithia Wage Boards set up by the Government of India for revising the wages of the newspaper employees.
What has disturbed me a lot is not whether the Act is wrong or right, Wages fixed are high or low; but the way the arguments were advanced by a very very senior counsel of India Fali S Nariman who is considered to be an icon of the legal profession.
Mr. Nariman firstly stated that the draft Wage Board recommendations were not made available to the petitioner. This is patently wrong in the sense that the Wage Board was a tripartite panel consisting of employees, employers and government representatives. Therefore, the employers' representatives were privy to every activity and report or recommendation of the Panel. Secondly; if reports were not available to the petitioner how and why did the petitioner assail the recommendations of the Wage Board? Thirdly; how could a petition be filed when the impugned document is not attached with it? Fourthly; it is responsibility and duty of the petitioner to first avail the report and then impugn it? All these questions prove beyond doubt that the petitioner advocate was undoubtedly not adhering to the principle of 'do no fiddle with facts.'
But Nariman is a Nariman. Even Hon'ble judges give high credence to what he says and utters in the court. What is still more surprising is that the gravamen of the main petition is for scrapping of the Working Journalists Act but the arguments were advanced against the recommendations of the Wage Board.
I bought it to the notice of the Hon'ble Judges— Dalveer Bhanari and Deepak Verma but even then they stayed the notification for two weeks. It was all due to humungous impact of Fali Nariman that he has on the Court.
Blind faith, as they rightly say, is always wrong and should be avoided. Is there not a lesson to learn?

Trampling of the democracy in Ram Lila Maidan

Parmanand Pandey

'Rule of law' is the basic and quintessence of democracy. It has to be assiduously preserved and protected by all those; who are at the helm of affairs in a democratic set-up. Without observance of the rule of law, the democracy becomes a farce and many a time worse than dictatorship.

What has happened the other day at Ram Leela Maidan of Delhi to spoil the Satygraha of Swami Ram Dev was most shocking and nothing but the mockery of democracy. Anybody would be aghast to see the harrowing scene of the atrocities being perpetrated by the police on the peaceful satyagrahis in the mid of the night, when most of them were fast asleep.

The government owes explanation to everybody as to why the draconian measure was adopted to disperse the Sayagrahis? Any dispensation having the semblance of civility would think at least a dozen times for taking any step to drive away the peaceful people. But, the step of the police action that was taken by the government would be unthinkable and emphatic no.

Baba Ram Dev has been campaigning for nearly two years to bring back the vast sums of Indian money stashed away in foreign banks. It is claimed that if the entire amount is brought back, India would instantly become a rich country.

The whopping amount of Rs. 4 lakh crore that have been spirited away from the country is mind—boggling ,to say the least. It is beyond anybody's comprehension as to why the government of the day is developing cold-feet in this regard? The more the government wants to conceal it, the more the suspicion of the people gets thickened and strengthened about its malafide intentions. Now the people have started saying that those sitting at the top in the government do not want to touch the corruption and corrupt elements. In fact it is they who encourage the corruption. If those like, Baba Ram Dev raise there voice they are subjected to derision, ridicule subjected, lathi-charge and tear gas. This amply exposes the government that it is prepared to compromise with corruption and its generator at every step. It is frightened even with the name of 'corruption' as it is neck-deep into it.

This government accorded the red carpet welcome to Swami Ram Dev on this matter demonstrating its sensitivity, even if it was for public consumption, it cannot say that Baba's demand for bringing back the black money is unjustified. Swami Ram Dev has actually caught the fancy of the people. The government firstly wanted to cause rift between Anna Hazare and Ram Dev but when it failed in its objective, it started the dirty game of vilification, character assassination and defamation of Swami Ram Dev.

People are not fools; they can well see-through it.

But, however, Baba has not to deviate from his path, come what may. The public support is abounding to the cause for Baba Ram Dev; the need is channelise to make a corruption free society. Let us hope for the best

Castration of Culprits: Medicine Worse Than Disease

Parmanand Pandey

A judge of Delhi, Ms Kamini Lau has suggested that the punishment to the convicts of rape case should be made exemplary and extremely deterrent. Her main suggestion, however, is that instead of increasing the period of incarceration of a rape-culprit to life imprisonment or putting him gallows, he should be chemically castrated. Such a person would find that his life has become a virtual hell for him and he would be constantly subjected to derision and ridicule of the society. This mortification will always haunt him to make him realise of his beastly guilt every moment till the last breath of his life.

In fact, according to many theories of punishment, there are mainly its three objectives: Reformative, Retributive and Deterrent. The crimes have also been broadly divided into two categories: One is against individual and the other is against individual plus society. In the second type of crimes; although the sufferer or victim is individual yet, it is considered to be a challenge to the law and order of the state and therefore, it is treated a crime to have been committed against the society. The state prosecutes the accused persons only against the crimes falling into IInd category. Punishment depends on the gravity of the crime.

There is no gainsaying that the rape is the most heinous crime and the trauma of a rape victim is indescribable. No amount of punishment can assuage and ameliorate the pains and sufferings of the victim. The attitude of the society further aggravates her mental agony and torture wreaking havoc on her. Therefore, the foremost thing that is to be done to change the mental attitude of the society as she undergoes almost daily. She often falls prey to deep depression. The rape victim deserves the sympathy and sweet words of the people around her and the culprit needs to be condemned in the harshest possible manner.

Having said it all, we, as a civilised society, will not have to lose the hope of a criminal getting reformed. A criminal's mental framework has also to be taken into account, particularly at the time of crime. It is also possible that he might have committed this dastardly crime under the influence of drinks and drugs. That is why, in criminal jurisprudence 'Actus Reus' is said to be based on 'Mens Ria'.'Tooth for a tooth' and 'eye for eye' is a form of retributive justice. Now it has become a thing of the past except in some hidebound Islamic countries. Genuine remorse and regret have worked wonders for the improvement of a criminal. Hence, the suggestion of the Delhi judge for castration of rape criminal however, well intentioned it may be, must be rejected at the very threshold.

Even the notion of this sort of punishment will push the society to the dark days of medieval period, which no well meaning person would like to return to. Be that as it may, the civil society, the judiciary and the legislature all will have to pool-their minds to see that the horrendous crime of rape is curbed. Punishment must be tinged with meaning intentions.

Medicine should never be worst than the disease. Its purpose is to cure the disease; not to further push the criminal into the vale of the barbaric crimes.

Mamata's Historic Win in West Bengal

Parmanand Pandey

Massive victory of Mamata Banerjee in West Bengal assembly elections is satisfying, momentous and epoch making. Marxists have been blown after 34 years of uninterrupted rule in the strong gale of Mamata's popularity.

Actually, it has been set in the psyche of the people for the last nearly two decades that the Marxists were invincible and it would be impossible to replace them through any democratic exercise because; they have mastered the art of subverting the public opinion by taking recourse to force and coercion and rigging the elections. In fact, the people of West Bengal have been fed up with the dictatorship and goondaism of Marxist rulers and cadres' right from the early eighties; but their anger reached the saturation point from the late nineties. If free and fair elections had been held for the West Bengal assembly, they would have thrown out in 2001 elections, if not before. Notwithstanding the huge wrath of the general public Marxists managed to win the 2001 elections. People, however, were aghast and felt cheated. In 2006 general elections of assembly the patience and anger of the people crossed all limits though; the Marxists were again able to manipulate the results in their own favour. This led to further cynicism among the young men and women and they started taking up the arms in large numbers.

Thus the Marxists have been mainly responsible for the growth of naxalism and frustration among youngsters. In fact, Most of the leaders of the Left Front suffer from arrogance and hubris. They still live in the Stalinist era and have refused to come out of time warp. The world has moved millions of miles ahead and away from the ideology of Lenin and Stalin, but they ridiculously harp on that fossilised philosophy. Scientific discoveries and means of production have changed and revolutionised the world beyond recognition, yet the blockheaded Marxists tired to oppress the wishes and aspirations of people with indiscriminate application of force and fraud.

At one point of time, the West Bengal was considered to be the most industrialised state of the country and was in the proud company of Maharashtra and Gujarat which at present is not only the worst governed state but the least industrialised state of India. Hundreds of industrialists and industries had to migrate from West Bengal to other state because of hostile attitude of the Left government. Hundreds of thousands of workers were left high and dry during the misrule of the Left Front. In the name of promoting trade unionism, they killed the hens that were laying eggs to feed the workers. Not surprisingly, therefore, the West Bengal has been posting very high negative trend of growth from all indexes resulting into large scale unemployment.

The most egregious misdeed of the Left Front government was; however, to allow the large scale infiltration of Bangladeshis in India. Needless to mention, crores of Bangladeshis have permanently settled in India by illegally entering through porous borders and the most outrageous act of the Marxist government was to give legitimacy to these Bangladeshis by providing them ration cards and putting their names in the election voters list. Thus the infiltrators are now the bonafide citizens of India As a consequence of it, the original inhabitants have been reduced into minority and they are cursed to live in the constant fear of Bangladeshis. These Bangladeshis have changed the demographic contours of several electoral constituencies not only in the West Bengal but in other neighbouring states like; Assam and Bihar. As these Bangladeshi have been voting in favour of the Left Front en block, therefore, they were always welcome with open arms of the Left government. Bangladeshis have now spread to almost all parts of India thanks to inept handling of the Central as well as the Left Front government of the West Bengal. They (Bangladeshis) are now posed a serious threat of law and order problems in almost every state. Besides, the security of the country is also endangered because of their sizeable pan-India presence.

All said and done; the Left Front leaders must be praised for their monetary honesty and austerity although the same is not true about their cadres. The general cadre of the Left Front has been as corrupt or sometimes more corrupt as the Congressmen and other party workers. It must be borne in the mind that the Left Front leaders and cadres would not easily swallow and tolerate their defeat and, therefore, they will certainly pose problems for Mamata Bangerjee at every step. Since they are well-entrenched at all levels of administration they will create stumbling blocks and hindrances for the new dispensation by all conceivable manners.

Therefore, Mamata Bangerjee will have to tread very cautiously. She will have to use the iron hand to crush the trouble makers but at the same time; she will have to take urgent steps for developmental works, so as to come up to the high expectations of the general public. I am sure she is fully aware of the challenges May she gets the strength to successfully grapple the problems and difficulties and surge the state forward by Godspeed. More about Mamata sometimes later.