LITIGATION REGARDING LINUX

(This article was part of the speech 'Open Source Software and Intellectual Property Rights' and was written at that time. The Trust has posted it separately for convenience. Out of the five suits, only one has been decided. It is also relevant to point out that this post is no reflection on the merits or demerits of any of the suits.)

OPEN SOURCE SOFTWARE AND INTELLECTUAL PROPERTY RIGHTS

(The text of the talk delivered by Justice Yatindra Singh at Indian Institute of Information Technology, Allahabad 19.4.2004. It has been modified since then.)

CYBER LAWS

Inventions, discoveries and technologies widen scientific horizons but also pose new challenges for the legal world. Information Technology—brought about by Computers, Internet, and Cyberspace—has also posed new problems in jurisprudence. These problems have arisen in all areas of law. The law (statutory or otherwise) providing answers to these problems or dealing with Information Technology are sometimes loosely referred to as 'Computer Laws' or 'Information Technology Laws' or simply 'Cyber Laws'. Intellectual property rights (IPR) are important aspect of Cyber laws. Today we will discuss one aspect of IPR relating to the Open source software. But first a few words about WTO and IPR.

TOWARDS A GREENER TOMORROW

(Paper presented by Justice Yatindra Singh, Judge Allahabad High Court, Allahabad at the Workshop on ‘Judicial Enforcement of Environmental Law’ Organised by Centre for Environment Education-North (Lucknow) and Environmental Law Institute (Washington DC, USA), in collaboration with Judicial Training and Research Institutes, UP (Lucknow) on 19th October 2003. This paper has been updated since then.)

The last century was the century of physicists but this is no longer true. This century is the century of biologist, a century of environmentalists. Environmental problems and issues will play crucial role in this century. We cannot march towards a brighter tomorrow unless we understand and solve them.

GENDER JUSTICE – A LEGAL PANORAMA

Talk delivered by Justice Yatindra Singh in the colloquium on ‘Gender and Law’ organised by the National Judicial Academy, British Council and the Allahabad High Court at JTRI Lucknow on 14th October 2001. It has been modified since then.

An illustration from a medieval translation of Euclid's Elements, (c. 1310) showing a woman teaching geometry to male students - courtesy Wikipedia

It is heartening that the National Judicial Academy, British council and Allahabad High Court are organising this colloquium on 'Gender and Law'. Action in law is in the courtrooms and its outcome depends on how well equipped judges are: better their knowledge, more satisfying the results. And who else but the National judicial Academy, the highest body for training Judges, should undertake to equip them. British owe a debt to Indian Women. Women's estate or widow's estate was unknown to Mitakshra and widow or daughter never had limited rights: they inherited like male heirs. Privy Councillors and the British Judges warped by status of women in England (see End note-1) and influenced by later developments in law of Dayabhag (by Jimutvahan to get over difficulties in Bengal) interpreted the women’s rights limiting them to their lifetime (See ‘Evolution of Ancient Indian Law’: Tagore Law Lectures 1950 by Dr. N.C. Sen Gupta pages 185, 190,1991-192, and 195). British Council is rightly redeeming that debt. Allahabad High court has unique contribution in the field of Gender Justice: it will be clear in my talk, just bear with me for some time.

ARTICLES - SPEECHES

The articles uploaded here-in-before were written by Hon'ble Mr. Justice Yatindra Singh, a member of the Trust, before elevation to the Bench. They have been published in a book titled 'A Lawyers World and Childhood Dreams'; published by Law Publishers Private Ltd, Sardar Patel Marg, Allahabad. His Lordship, after elevation to the Bench, has been writing articles and delivering speeches. They had formed part of separate blog titled 'A Judge's World'. These speeches and articles are being uploaded on this blog.

WHAT LITTLE I REMEMBER

This article is a review of the book ‘WHAT LITTLE I REMEMBER’ written by Otto Robert Frisch a nuclear scientist. There is another very good book dealing with the personal history of the Atomic scientists titled Brighter Than A Thousand Suns; Robert Jungk: Penguin Books

Otto Robert Frisch, nephew of Lis Meitner, was born on Oct. 1, 1904 in Vienna. He decided against Mathematics for he never wanted to spend his life with a pencil and a waste paper basket. He enjoyed making things so he turned to Physics. He worked in Copenhagen under Neils Bohr; helped in making the atom bomb during Second World War at Los Alamos, taught at Cambridge University and directed the Nuclear Physics Dept. of the Cavandish Laboratory.

Dalton had suggested atoms in the beginning of the last century. It was thought useful for explaining empirical facts to the Chemist. But it was at the end of the last century that the romance with atomic physics began; attracting the best of the brains to its bosom. The book What little I remember though an autobiographical sketch is full of anecdotes shedding light on the actors involved in one of the most fascinating stories of this century; The love of nuclear physics. The book is not only a charming light-hearted story of Frisch but also the life of almost every outstanding Nuclear Physicist of this century. The stories are charming, the language plain and simple to the envy of many English Professors.

The book is full of anecdotes from Einstein, Bohr, Pauli, Feynman to our own Homi Bhabha, a dark skinned young man who was mistaken to be Italian by Frisch. We see many faces of these great men. One illuminating incident was when a young man after a lecture by Einstein got up and said,

‘What Einstein has told us is not so stupid but the second equation does not follow from the first. It needs an assumption, which need not be correct’.

Every one in the hall turned around and stared at him. Except Einstein who was concentrating at the black board. And after few minutes he turned and said ‘

The young man is right. Forget everything I have told you today’.

Humility is the first virtue of a great man.

The present edition of the book is brought out by `Canto'. It has done great service. It is reprinting some of the best published by Cambridge University Press. Some of the other good titles in Science section to be read are Mr. Tompkins in paper back by George Gamov. A Mathematician Apology by GH Hardy. But as far as this book is concerned it has brought life to some of the people that the author had met from What little I[he] remember[ed]’ The book will be enjoyed by those who are familiar and equally by those, not so familiar with the world of nuclear physics.

ISAAC ASIMOV

Isaac Asimov via last.fm

In his book ‘Report on Planet three’, Arthur C. Clark comments that

‘In accordance with the terms of the Clark Asimov treaty, the second best science writer dedicates this book to the second best science fiction writer.’

This may not be true, for Asimov is reckoned by many as the best science fiction writer, if not of all times then, at least of this century.

One should also, not compare him with Jules Verne, the father of modern science fiction. He was of a different era; of the last century. The progress of Science makes the comparison unfair. But what Jules Verne was to his generation, Asimov is to this one and may like him inflame the imagination of many and inspire others to be aware, and interested in Science.

Asimov was born in Russia in 1920, ninety-two years after Jules Verne. His parents moved to USA within three years of his birth. He, unlike Jules Verne who was a lawyer, chose Chemistry, taught Biochemistry for a few years in the School of Medicine, Boston University before retiring to devote full time to his writing in 1958. He was a prolific writer. At the time of his death in April 1992, he had written about 500 books and thousands of articles ranging from Science to Shakespeare, but one will do well to ignore his writings apart from popular Science and Science fiction.

His writing career began at the age of 19 with the appearance of his short story ‘Marooned off Vesta’ in ‘Amazing Stories’. ‘Night Fall’, regarded by many as his finest story, was written two years thereafter. He then never looked back. An incident happened after he became famous. His parents retired from the Candy shop that they were running. His mother chose to spend her time in learning a language. She was learning very fast. One day the instructor asked her if she was related to Isaac Asimov and on being informed that she was his mother he said ‘No wonder you are so good at it’. Mrs. Asimov not to be outdone, looked at him and replied ‘No wonder he is so good at it.’

Asimov's best-known work is the ‘Foundation Series’. ‘Foundation’, the first one from the point of view of publication, was initially published in the form of four stories between 1942 and 1944. Later on (1951) they appeared as one novel. Two more were added ‘Foundation and the Empire' (1952) and ‘The Second Foundation' (1953). For twenty-five years the Foundation Trilogy remained the best science fiction ever written. It is only later, that two more were added to the series ‘Foundation’s Edge' (1982) and ‘Foundation and Earth' (1983). One thought it was the end of the matter but then he came up with ‘Prelude to Foundation' (1988). It is in fact the first in the Foundation Series though written the last. It is not apt to call these six books as Foundation Series for he was writing other series too. The Robot series- ‘The Complete Robot’ (short stories about robots published from 1940 to 76), ‘The Caves of Steel' (1954) (The first Robot novel), ‘The Naked Sun' (1959), ‘The Robot of Dawn' (1983) and ‘Robots and Empire' (1985). The Empire Series ‘The Currents of Space' (1952) (The first Empire novel though again written in the last), ‘The Star Like Dust' (1951) and ‘Pebble in the Sky' (1950). The stories are independent of each other and have been written at different times without any intention of connecting them. But he did connect them all. Forming what one may call the ‘Foundation Universe’. They have references to one another. There is some inconsistency but that was not planned to begin with. They offer a kind of picture of the future, painted through stories that are gripping, and make enjoyable reading. It is difficult to put them down. This holds for any Science fiction written by him. And if any certificate is needed, it is sufficient to say, Asimov won the Hugo Award four times and the Nebula award once.

Asimov chose simple themes for his stories. His stories, unlike Clark's who once said about his film ‘2001 Space Odyssey’, ‘If you understand 2001 (space odyssey) on the first viewing (then) we will have failed’, are easy to understand and are fast moving- be it a short story or a novel. His ‘Nine Tomorrows’ is the finest collection of short Science fiction stories ever written. ‘The Fantastic Voyage’ a movie and thereafter a novel of the same name is a pointer in this direction. Asimov was never satisfied with it. He wrote another ‘The Fantastic Voyage II’. The story of four men and a woman in a submarine, injected in the blood artery to travel inside the brain and to accomplish the task within the specified time.

It is not that Asimov has been busy in writing Science fiction only. He was also writing books on popular science meant for laymen and school going students. He has written almost on all subjects relating to Science. ‘Asimov's Guide to Science’, ‘The well springs of life’, ‘The left hand of Electron’, ‘The collapsing universe’ are some of his best. But the future might not remember him for his Foundation series or for that matter his books on popular science, but for his three laws of Robotics that he framed as early as 1941. Like the three laws of motion, the three laws of Robotics will endure time and will be his true contribution to the field of Science and future Robotics. The three laws, framed at the beginning of Robot series not only guided him through his robot series, but through all of his stories.

(1) A Robot may not ignore a human being or through inaction allow human being to come to harm
(2) A Robot must obey the orders given to it by human beings except where such orders would conflict with the first law
(3) A Robot must protect its own existence as long as such protection does not conflict with the first or second law

STEPHEN HAWKING

Image by Getty Images via Daylife

The placard 'Quiet Please, The Boss Is Asleed', outside the office of Stephen Hawking- the Commander of British Empire, the most brilliant theoretical Physicist since Einstein with 13 International Awards and 11 honorary Doctorates- is a bit out of place. He is a man, known as much for his theoretical Physics and courage as his wit. Unable to walk, write or speak, he has leaped beyond universe.


Hawking was born on Jan 4, 1942, exactly three hundred years after the death of Galileo. By the time he was eight he was seriously thinking of becoming a scientist. And at fourteen, despite his father's love for medicine, he wanted to do Mathematics, more Mathematics and Physics.


Hawking's family lacked material possessions but one thing they had plenty - the books. The family was odd. When their friends were invited to tea in the house, they would find entire family with their heads buried in books over dinner table. They spoke strangely: the children spoke so quickly so as to stumble over the words and father Frank stuttered. It was named Hawkingenese.


He was ordinary as a child. So ordinary was he that one of his friends bet the other a packet of chocolate in case he ever came to do anything. He went to Oxford at seventeen. There he is remembered as a student who liked finding mistakes in the textbooks rather than solving the problems.


Hawking wanted to be a theoretical physicist and chose cosmology. He applied for a PhD at Cambridge, since Fred Hoyle, the most famous British astronomer was there. The Cambridge University put a condition. He should get a first from Oxford. Hawking did not do well in his exams. He was on the borderline between the first and the second. The examiners called him for a personal interview and questioned him about his plans. He reputed to have said,

‘If I get a first I shall go to Cambridge. If I receive a second I will remain at Oxford. So I will expect that you will give me a first.’

Needless to say he went to Cambridge. Though, his physics tutor later told the New York Times


At 21 Hawking contracted a rare disease, with no cure; motor neurone disease. It causes gradual disintegration of cells in the spinal cord and brain that regulate voluntary muscle activity. Speech and movement are its first casualties; and death, in two to three years. Today he is alive and is fifty years old. Is he lucky or is it his determination? You can take your pick. Hawking says when he came to know at 21 that he would die so soon he realised the worth- the value of life.


It was about the same time that he fell in love. It was not possible to marry unless he had a job and no job was possible until he had a PhD. Hawking had read about a theory of Roger Penrose1 concerning what happens to a Star when it dies. It collapses into a black hole. Penrose had improved the work of Subrahmanayam Chandrashekhar2 . Hawking took a reverse direction. Suppose, space, time and the entire mass was concentrated at a point. Imagine a point singularity- and it exploded- what we call the big bang- expanded into what it looks like today. He worked hard on the idea and according to him he was surprised to find that he liked it.


Hawking was made fellow of the Royal Society at 32. A new member has to walk up to the podium to sign the register. But they broke the tradition this time. Sir Alan Hodgkin, Nobel Prize winner in biology, president of the society walked down to Hawking. For Hawking could not walk. He had long started using a wheelchair. He could still write, but with great difficulty. He took a long time to write his own name.


Hawking had lost his speech but could make sounds, which few could understand. He used to communicate with that. Soon this was to leave him. He contracted pneumonia. Only the removal of his windpipe saved his life. He no longer breathed through his nose or mouth but through a small permanent opening made in his throat. He became incapable of speech. He now cannot communicate except through the special computer program operated by fine movements of his fingers and the speech synthesiser fitted onto his wheelchair.


In 1982 he wanted money to send his daughter to a school. He wrote a popular book, ‘A brief History of time ... from big bang to black holes’. The book deals with philosophical questions like: Where did the universe come from: How and why did it begin: Will it come to an end: Is there a complete theory of the universe and everything in it: Is there a need for God and non philosophical question: What made him study cosmology and quantum theory? It is an all time best seller. It sold 8 million copies since its publication in 1988.


The books Stephen Hawking: Quest for a Theory of Every thing by Kity Ferguson; published by Bantam Books and Stephen Hawking A Life In Science by Michael White & John Gribbin; published by Penguins are enjoyable to read. They talk about the personal life of Hawking, his courage, his determination and of course, his separation from his wife. It is said solving equations for Hawking is as strenuous as it would be for Mozart to mentally composing a symphony. One can only imagine his courage and determination.


Everything about him leaves one surprised even the life size portrait of Marilyn Monroe that hangs on the door of his office.


1 Roger Penrose is a Professor of Mathematics at Oxford University. He shared the 1988 Wolf Prize for Physics with Hawking. His book `The Emperor's new mind concerning computers, minds and the laws of Physics' published by Vintage two years ago was a best seller. The book tries to show that everything is not a digital. The conscious mind does not function like one. And in this process he takes a journey through modern Physics, Cosmology, Mathematics and Philosophy. The book is interesting to read and is a must for a university student.

2 Subrahmanyam Chandrashekhar is an Indian living in Chicago. He was awarded the Nobel Prize for his work on black holes. `CHANDRA' an interesting biography about him has been published by Viking.

RICHARD FEYNMAN

Richard Phillips Feynman, the 1966 Nobel laureate in Physics was born on May 11, 1918. He died of cancer in 1988. He was the most talked about scientist of the second half of the 20th century. What Einstein was to the first half he was to the second half. When he was young he could not decide whether he wanted to be a comedian or a scientist. He combined the two successfully as he grew up. Is that the reason for his being so famous? But then as David Goodstein, Professor of Physics at Caltech says,

'Feynman is a person of historic proportions, he deserves the kind of attention that he has gotten.'

Feynman’s father had his own way of teaching his young son. He would point to a bird and say something of this kind.

‘A bird is known by different names in different parts of the world. One may know all its names. But this is not important. You still do not know about the bird. The important thing is what it does and how it does it?’

No wonder Feynman was curious and inquisitive.

Picture Courtesy - Wikipedia

Feynman thought English to be a dippy subject and had a lifetime disdain for philosophy. He dismissed religion, which seemed to him to be based on wishful thinking. He talked straight, meant what he said and was genuinely confused if that seemed to upset other people. He was good at Mathematics: a star in the school math’s team. But he left it. He thought the only thing you could do by way of a career in mathematics was to teach it to someone else. As an initial overreaction, seeking something more practical he switched to Electrical Engineering and then shifted to the middle path of Physics. Feynman graduated from MIT and wanted to work for his Ph.D. there but moved to Princeton instead. He would later comment,

'I learned the world is bigger and there are many good places.'

It is interesting to note how he got down to the idea, which won him the Nobel Prize. During the Second World War he worked at Los Almos developing the atom bomb. He had a few offers, but went to Cornell. The reason was simple. It was where Bethe worked. They had got along well at Los Almos. One day he was in the Cafeteria when one of the students, who was fooling around, threw a plate into the air, spinning it like a Frisbee. It had red medallion of Cornell on it. The plate wobbled and spun. The medallion went round at a different rate from the wobble. Intrigued, Feynman went out to calculate the relationship between the wobble and the spin, which was 2:1. It came out of a complicated equation. When people asked him why he did it, he said,

'For fun. It has no importance.'

But he was wrong. He was stuck with a problem about the spin of electrons. The equation with which Feynman played while calculating the wobble of the plate was relevant to the problem of the electron’s spin. He again started looking into his old problem with a new insight. This contributed to his theory, which won him the Nobel Prize.

By 1950 Feynman, still at Cornell, had done enough physics to go down in history as one of the greatest physicist of the 20th century. But he was not content. He wanted to conquer new fields of physics. It was time to move on. He shifted to Caltech, a place with a warmer climate.

In the sixties, undergraduates at Caltech were being taught courses along the lines laid in 1940. Classical physics in the first two years and interesting stuff like Relatively, Quantum theory, and Atomic Physics in the third year. They thought of changing that and got Feynman to give lectures to the undergraduates and to make a final decision on the contents. No other great Physicist ever did that. But Feynman took up the challenge. He accepted it on the ground that he would do it only once. The period spread from September 1961 to May 1963.

These were special lectures. They had to be preserved for posterity. This was done. Feynman gave two lectures a week and devoted himself full time to their preparation and presentation during rest of the week. He planned everything in advance but had no formal notes, just a single sheet of paper with key words written on it to remind him of the flow of the presentation.

He was a great teacher and an excellent communicator. For him the lecture hall was a theatre, and the lecturer a performer, responsible for providing drama and fireworks. His lectures including the jokes were carefully planned in advance. Feynman's lectures lived up to his reputation. They were like entertainment shows with a beginning, middle and an end. The three red books in which they are published are a must for anyone interested in physics at the undergraduate level.

Feynman is remembered in many ways:

• The boy who fixed radios by thinking;1
• The man who enjoyed doing his calculations in topless restaurants;2
• One who cracked safes during his stay in Los Almos during the Second World War;3
• The bongo player;4 and
• Of course the man who publicly demonstrated on the TV that the cause of Challenger disaster on 28 January 1986 when the space shuttle exploded was due to the effect of cold on the booster rocket rubber sealing.5

What kind of person was he? Two instances may explain his personality:

• Feynman at 21 was assigned to John Wheeler then 28 at Princeton. Wheeler did not win Nobel Prize but nevertheless had done important work to win Noble prize. He was pompous and self-important. He fixed time once in a week for Feynman. At their first meeting he took out a golden stop watch from the inner pocket of his three-piece suit and kept it on the table. Feynman should know when his time was up. Before their next meeting Feynman purchased a watch. It was a cheap one. That was the only watch he could afford. At their next meeting he placed it by the side of the expensive watch. His time was as important as Wheeler’s time. Both of them saw the humour and burst into laughter. Their relationship was never formal. Discussions turned into laughter, laughter into jokes and jokes into original ideas.
• The second instance - somewhat unbelievable-one thought that it only happened in the fantasy world. Feynman was in love with a girl from his school days -Arline. They decided to marry after he finished with his studies and had a steady job. He was still doing his Ph.D. and then Arline got ill. She had TB, a fatal disease in those days. She had five years to live. Feynman came under enormous pressure from his family and friends not to marry her. They could only have a limited physical relationship and could not even kiss for fear of contagion. He still decided to go ahead with the marriage as soon as he finished his Ph.D. By the time he finished it Arline was hospitalized. But he did marry her. Matthew Brodevick has directed a movie ‘Infinity’ based on this instance.

Feynman’s life was full of anecdotes. If one is to write about them one could write a book. This could be the reason for so many books on him in such a short time.
Surely You’re Joking, Mr. Feynman! by Richard Feynman & Ralph Leighton

• What Do You Care What Other People Think? by Richard Feynman & Ralph Leighton
• Richard Feynman-A life in Science’ by John Gribbin & Mary Gribbin; published by Penguin Books.
• Tuva or Bust! by Ralph Leighton
• No Ordinary Genius: The Illustrated Richard Feynman; edited by Christopher Sykes
• Most of the Good stuff; edited by Laurie Brown & John Rigden
• Genius: Richard Feynman and Modern Physics by James Gleik
• The Beat of The Different Drum; by Jagdish Mehra
• Do you have time to think?; collected letters of Michell Feynman (This book was published since writing of this article).

All of them are very enjoyable reading. The books are worth every paisa that they cost.

1As a kid Feynman used to fix radios. One day a man asked him to fix his radio, which used to make noise when switched on but settled down when warmed up. The young Feynman instead of touching the radio started pacing up and down. When asked, he said that he was thinking. He realised that reversing the two valves would solve the problem. This he did and the radio started working perfectly. That is how he got this reputation.

2Feynman would often go to a topless bar in Pasedena and would work on a problem of Physics or sketch. The police raided the bar and an attempt was made to close it down. The owner asked his loyal customers to testify that there was nothing lewd or obscene. All but Feynman refused to do so. It made headlines. ‘Caltech’s Feynman Tells Lewd Case Jury He watched Girls While Doing His Equation.’

3This he would do for fun. Military authorities would find nothing missing from the safe but a paper with ‘Guess who?’ written on it.

4He used to play bongo well. His second marriage was not successful. They were divorced. Extreme cruelty was the only ground of divorce. It is for this reason his second wife testified, that his ‘bongo drumming made a terrible noise and not only did he began working on Calculus problems in his head as soon as he awoke but also while driving his car, sitting in his room and while lying in bed at night’

SRINIVAS RAMANUJAN

In 1913 Godfrey Harold Hardy was 36 years of age and an established mathematician. He belonged to the field of pure mathematics. He was already a Fellow of the Royal Society and was with Cambridge University. His name appeared not only in every Mathematical Journal of the time but also in the journal of Medicine. He had propounded the Hardy-Wienberg law, which states,

‘dominant traits would not take over and recessive traits would not die out’.

His future was secure and life fixed. Then with one letter from India, by someone called Srinivas Ramanujan, it all changed.

‘Sir,
I beg to introduce myself as a clerk in the Accounts Department... I have no University education... I have not trodden through the conventional regular course... but I am striking out a new path myself. I have made special investigation... and the results... are termed as startling by local mathematicians’.

And then he had rattled off some of his results. Hardy had never seen anything of this kind. It is then as Hardy would say later,

‘The romantic incident of my life began'.

The two men were exact opposites. If they had anything common, it was Mathematics. Ramanujan was intuition incarnate; Hardy was the Apostle of proof. Ramanujan was so firm in his faith in God that an equation for him had no meaning unless it was expression of a thought of God. Hardy thought mathematics proved otherwise. Ramanujan did not have a good schooling and no education after it. Hardy got the best of education; Public school then Cambridge University. ‘THE MAN WHO KNEW INFINITY A Life of the Genius Ramanujan by Robert Kanigel (Published by Rupa & Company) is the story of Ramanujan. It is the story of Hardy as well; and what they meant to each other.

 Srinivas Ramanujan - photo courtesy Wikipedia

Ramanujan was a child prodigy. No one including his teachers understood him. One day when he was in class 3, his teacher was explaining, a number divided by itself is one. You distribute 3 mangoes amongst 3 persons each will get one. Ramanujan asked, ‘Is zero divided by zero also one. If no mangoes are distributed among any one - will still each get one?’ He was talking about the ‘Indeterminate’. Something which even today is not very well understood by anyone in school years. While he was still in school that he discovered that trigonometric functions, instead of being related to the ratio of the sides of a right angle triangle, are an expression of a series. The mathematical world had discovered it 150 years ago. He did not know. He discovered it himself. Unlike common belief, Ramanujan had stood first in the district in his primary examinations and had passed school with flying colours. It is only in college that he left all subjects except mathematics. He breathed and dreamt of nothing but mathematics. It is this, which led to his failure. He could not pass college examination.

It is surprising that how many, apart from Ramanujan's mother and Hardy, have had a small but significant role to play in his life. Hardy was a cricket fan. He was in College, when Ranjit Singh the great Indian Cricketer, was in his prime. He had something to do with the removal of Hardy's prejudices against a native. Ramanujan had initially refused to go to England. Hardy recommended a scholarship for him in India. Madras University debated on whether it should be given or not. It was opposed. It could only be given to someone with the Master's degree. Ramanujan, at that time, did not even have the Bachelor's degree. It was only the persuasive arguments of Chief Justice PR Sundaram Aiyar, the then Vice-Chancellor that carried the day. He said ‘The preamble of the act establishing the University showed the prime object was to promote research. And Ramanujan had proven ability for the same’. It is only then that the University awarded the scholarship.

Hardy was once asked, what was his greatest discovery. ‘Ramanujan’ he firmly answered. At another time he said,

‘I did not invent him. Like other great men he invented himself.’

At the end of his life when Hardy would give an explanation for irrelevance of pure mathematicians to a common man's need in ‘A mathematician's apology’, a classic and still remembered for its mesmerising hold on readers, he would console himself.

‘I have done one thing... (that pompous people) have never done... (It) is to have collaborated with... Ramanujan on something like equal terms.’

Ramanujan was original and intuitive. He could feel the results. Hardy believed in logic. For him nothing was true unless proved. May be they complemented each other. It is for this reason that they got off well. And Hardy even after Ramanujan's death, at a very young age, went on to write papers on the mathematics of Ramanujan. It is often said what would have happened if Ramanujan, instead of learning mathematics himself would have learnt it traditionally. Hardy answered it in 1927,

‘he would have been a greater mathematician... discovered more that was new... (But) he would have been less of a Ramanujan and more of a European Professor and the loss might have been greater than the gain.’

About half a century later another man in another field - physics, known as Richard Feynman, would do the same. Unlike Ramanujan, he would go to college but bunk his physics classes, would rebuild college physics himself. And in that process, solve the problem of Quantum Electrodynamics in such a radical way that he could write down the answers straight away without using any mathematics. Apart, in their many traits, both were self-taught and originality was their first and their last virtue.

No article about Ramajunan can be complete without that incident about the Taxi number. Ramanujam was ill and admitted in a hospital in London. Hardy would visit him there on weekends. On one of his visits Hardy noticed the Taxi number 1729. On reaching the Hospital he mused that if it was a dull number and being a multiple of thirteen (13x133) may be bad omen. Pat came the reply from Ramanujam,

‘No, it is a very interesting number. It is the smallest number, which can be expressed as the sum of two cubes in two different ways. 1729 is equal to 123 +13 and 103+93.’

‘The man who knew infinity’ is a book, which is gripping and well written. It is one of the finest biographies ever written. It is the story of a poor but self-confident young man. It is a story of scientific achievement in adversity. It not only talks about the achievements but also narrates the psychology and cultural differences of that time. The book deals with the mathematics that Ramanujan did; the equation that he loved. They are explained in a simple way. Even if one does not understand them one can skip them. This does not affect the rhythm. The book undoubtedly will inspire young readers to emulate the great man and who knows might produce future Ramanujans. He is a source of great pride to all of us.

CHAPTER VIII: LIFE SKETCHES

Many people in some way or the other affect one’s life. So it is with books as well. Here are few.

ADMINISTRATIVE TRIBUNALS ... SOME REFORMS

SAMVAAD... a lawyers’ group 7, Elgin Road Allahabad-211001 organises seminars, workshops, lectures and brings out a newsletter by the same name. It had organised a workshop on the functioning of tribunals. This article was written for the Newsletter brought out on that occasion. It surveys and deals with the history of the tribunals. It recommends bifurcating the High Court into the Senior-Junior Division and providing for an appeal against all decisions of Tribunals to the High Court.1 Since writing od this article, the Supreme Court in L. Chandra Kumar Vs Union of India AIR 1997 SC 1125 has partly accepted the position and has restored the judicial review of the High Courts.

It was in the last century that Dicey claimed,

'it is difficult to believe the administrative courts can by their very nature give that amount of protection to individual freedom which is secured to every (one) ... residing in England.’

But despite this administrative tribunals have come to stay in England. There are more than 2000 Administrative Tribunals in England. From Lord Reid’s opinion in Ridge Vs. Baldwin (1963 (2) AllER 66)

‘we do not have a developed system of Administrative law... perhaps because until fairly recently we did not need it’

to Lord Denning (Breen vs. A.E.U 1971 (1) AllER 1148)

‘It may truly now be said that we have a developed system of Administrative law’

and finally to Lord Diplock (IRC Vs National Federation of Self Employed 1981(2) AllER 93 ),

‘Progress towards a comprehensive system of administrative law- that I regard as having been the greatest achievement of English Courts in my judicial lifetime’

is a long distance covered by the English Courts.

FRENCH SYSTEM

This was not so in the rest of Europe. France makes a distinction in the administration of ‘Droit Civil’ (civil law) and Droit admin­istrative (administrative law). They have a dual system of courts. French administrative law, unlike England or for that matter common law countries including India, deals with claims against government only. It is dealt by a two-tier system of special courts with Conseil d’Etal’as the Supreme administrative court. It is not subject to ordinary courts as we understand it, and is staffed by the cream of French Civil Servants. Ordinary courts deal civil law in France. Most European countries Belgium, Germany, Holland, Italy, Luxembourg, Spain, Portugal, Greece follow the French practice of double jurisdiction. It is England with its common law tradition, which does not follow this practice. We, having inherited those traditions, will benefit from the progress made therein.

DEVELOPMENT IN ENGLAND

The First World War brought about complex social and economic problems. These led to the growth of delegated legislation confer­ring vague and wide discretion on the executive to be supple­mented by department rules & instructions. Considering the dangers in the situation and in order to bring about uniformity, the British Parliament appointed a committee in 1931-32 known as the Donoughmore Committee. The recommendation made by the committee itself led to the enactment of Statutory Instruments Act 1946 and Crown Proceedings Act 1947 but its recommendations for better control and supervision of administrative decision were not implemented. It is only after the Second World War and public concern over the Crichel Down case in 1954 dealing with return of the land compulsorily acquired during war that another committee known as Franke Committee was constituted. It recommended constituting a council on tribunals for general supervision of the tribunal organisation and procedure. This recommendation led to the enactment of the Tribunals and Inquiries Act 1958. It was substituted by another Act of the same name in 1966 & 1971. Among the other recommendations the two important ones were:

• There should be right of appeal on fact, law and merits
• There should also be appeal on point of law to the courts and judicial control by the remedies of certiorari; prohibition and mandamus should never be barred by statute.

The British Parliament did not accept that there should be appeal on fact in every case but it has provided an appeal on point of law to a court so that law may be correctly and uniformly applied. All such appeals lie to the Court of Appeals. Apart from this British Court have always held that error of laws can be quashed, on a certiorari. The French system of `Droit Administrative' was not accepted.

THE INDIAN POSITION

The framers of our Constitution did not accept the French system and permitted judicial review to the High Court and the Supreme Court. The Law Commission of India has compared various systems of administrative law. The Commission in it’s 14th report (volume 2), points out that the French system of administrative law need not be imported to India and judicial review obtaining under India's Constitutional system provides adequate avenues of redress to an individual affected by State action. But then this was practically undone by the 42nd Constitutional amendments by inserting Article 323-A and 323-B during the emergency.

Article 323-A gives power to the Parliament to provide for law in respect of what is to be known as service matters. Article 323-B permits the appropriate legislature, which includes a State Legislature, to provide for adjudication of certain matters relating to tax, labour, election etc. to the exclusion of all courts except the Supreme Court under Article 136 of the Constitution. In pursuance of these the Parliament has enacted the Central Administrative Tribunal Act excluding the jurisdiction under Article 226 of the Constitution. A few other Acts have not directly excluded the jurisdiction of Article 226 of the Constitution. They have provided an appeal to the higher forum and then to the Supreme Court. Thus they have indirectly, and for all practical purposes denied the High Court to exercise its jurisdiction under Article 226 of the Constitution. For example: The Consumer Protection Act, the Advocates Act etc. Even if this is constitutional it will cause irreparable loss and damages to our judicial system.

LOSS

The world over, tribunals are not staffed exclusively by judicial members. Laymen, persons specialised in the branch are also appointed. May be they are necessary. This helps in deciding the question of facts. This does not mean that the public should be deprived of the services of High Court Judge on a question of law. Apart from this it is common knowledge that tribunals are often ill staffed and do not have the required facil­ities. The State Consumer Forum of Uttar Pradesh was closed down sine-die by its Chairman on the ground that it had no facilities. The non-judicial members unlike their French counterparts often accept it as a last resort. In case of the Central Administrative Tribunal, except for the Vice-Chairman, the rest of the judicial members come from the subordinate judiciary without doing a single service case in their judicial career. The entire juris­diction in these matters has been taken away from the subordinate court. The Supreme Court, being the highest court, is busy in deciding constitutional matters and may not have sufficient time for these matters under Article 136 of the Constitution. The litigants are deprived of the services of the High Court Judges who at least today are most experienced and the best qualified in that branch. The Supreme Court Judges are appointed from the High Courts. May be in future they will become out of touch in this jurisdiction.

REFORMS

Speedy and informal justice are among the main reasons for con­stituting the tribunals. Delay in disposal of cases is the main reason for curtailing the jurisdiction of the High Court. Unfor­tunately tribunals suffer from the same malady. The procedure under Central Administrative Tribunal Act is more cumbersome than the writ jurisdiction. They have the same problem of delays and justice is often not up to the mark. The correct approach for solving these problems is in improving the administration and providing modification in the functioning of the High Court.

GOOD ADMINISTRATION

Most of the litigation begins due to mal-administration. It is a problem-faced world over. Different countries have to a great extent solved these problems by training their executive and defining administrative procedures by means of statute.

The US congress has enacted the Administrative Procedure Act, 1946. Most of the states in US have enacted law in the light of the Revised Model State Administrative Procedure Act formulated by the National Conference of Commissioners on uniform State laws. The Australian Parliament has enacted a number of Statutes the most important being the Administrative Decisions (Judicial Review) Act. The French and the Israel Parliament have enacted similar laws. Such acts can also be enacted in India and the executive can be properly trained.

JUDICIAL REFORMS: BIFURCATION OF THE HIGH COURT

Delays in disposal of laws have to be reduced at the High Court level. To accomplish this, the High Court may be bifurcated into two divisions. Senior Judges may be designated as appellate judges. The senior judges may be paid salaries between that of the puisne judge and the chief justice. They may hear only appeals from tribunals situated in the State or against the order of a single judge where appeal lies.

The appeals may be provided on the question of law only. This will automatically curtail the wide jurisdiction of the High Court under Article 226 which sometimes runs amuck despite limits laid down by the judicial pronouncements. Clearly defined statutory provisions are better than the judicial pronouncements. It will be better if these limits are incorporated in Article 226 itself. This may be difficult and time consuming. It will be easier to provide statutory appeal to the High Court on a question of law. In order that these appeals may be expeditiously heard a pattern similar to the US Supreme Courts may be adopted.

Every such appeal may have three sections

• facts including impugned orders and documents,
• grounds and
• reasons & rulings supporting the grounds.

The third section is in fact the written arguments submitted by the counsels. These appeals may be considered for admission in chambers dispensing with an oral hearing. For final hearing a time limit may be fixed. Facts may not be disputed as the Single Judge or the Tribunal may be required to give a reasoned order with a conclusion on facts separately stated in seriatim.

It is true that the idea of filing written arguments was rejected by first Law Commission in its 14th report 1st volume,2 but times as well as circumstances have changed. This will not only force the lawyers to be specific but will also encourage them to take up relevant points. This has one more advantage. It will also force the Judges to deal with the points taken in the written arguments. It is not often that the Judges do not refer to the uncomfortable rulings or submissions. This procedure will not only restore the role of the High Court as the constitution framers envisaged but will also be in accord­ance with the basic feature of the Constitution namely Judicial review.

1For details, kindly see

• French Administrative Law; Brown and Garner; published by Butterworths.
• Administrative Law; HWR Wade; published by Oxford University press.
• Administrative Law; Dr. DD Basu; published by Kamal Law House.
• Administrative Justice ... Some necessary reforms; published by University press.
• Law Commission of India 14th Report Volumes I and II.

2Dr. LM Singhvi narrates an incident. He had suggested filing of written submission when the first Law Commission was processing its report. He was a young lawyer, who had just returned from the US completing his studies and was impressed with their system. Seetalved, the then Chairman of the Commission and Attorney General, in the presence of other members including judges, said, 'What is the guarantee that it will be read.' May be this bias was the reason for the recommendation.

TO ROBE OR NOT TO ROBE

It is about lawyers’ uniform. Should we, the lawyers, continue with bands, gowns and black coats even during summer and the rainy seasons?

What would you say, if you see a person in a suit and a tie in the scorching heat of May (450 C) or in the humid climate of July? Is there any such person? Think again. There are many. Their reputation is neither envied in the world nor their fate thereafter. Yes, it is we the lawyers. Instead of a suit it is a combination. And in the place of tie it is band and on top of the entire ensemble there is a gown.

When the British came to India, they, along with their legal system, also introduced the lawyer’s attire. And when they left, they, alongwith their finest legacy- the legal system, bequeathed the black coats, bands and gowns. Dress among the legal fraternity was often governed by traditions. The High Courts have also made rules in this regard. Normally in case of the male members, apart from other things, they are require to wear: a black buttoned up coat, or open collar coat, or Achkan, or Sherwani with bands and a gown. Under the rules female members were exempted from wearing coats at least.

WIGS, BANDS Etc.

Historically speaking, wigs were first used as a personal adornment and not for any other purpose. Barristers started wearing them in the beginning of the eighteenth century. According to Dennin,

'it conceals the personality and the boldHead. .... It is a mark of authority and a source of respect.' (What next in law; Lord Denning)

Good reasons but not all need them. Wigs are absolute in India. No one wears them, except may be Judges on ceremonial occasions. Thank goodness. What a relief! They are still worn in England by Judges and Barristers. Bands, weepers, bibs, neck cuff or collar cuffs came to be worn by barristers around the same time as wigs.

'Counsel ... seem to take great pride in the wearing of collar cuffs whose purpose, I have been told, is to wipe tears after an emotional pleasure. Perhaps due to this, collar cuffs [came to be] ... later known as weepers.' (Wigs and Weepers; George Joseph).

HEAD DRESS

What about head dress? Traditionally English headdress (Hat, Cap etc.) is not worn inside a building. They have never been worn inside the court. But what about the Indian head dress! According to Hindu tradition, covering one’s head is to show respect. The Indian head dress can always be worn inside the courts. The members of legal fraternity have always been wearing Turbans or Safas- a sight quite common during the British Raj, though so common now.

LEGISLATION

It is not that efforts were not made to legislate on the legal profession earlier. The comprehensive Act, the Advocates Act, was enacted in 1961. Section 34 of the Act gives power to the High Court to lay down conditions subject to which an Advocate shall be permitted to practise. Different High Courts already had rules or have since made rules prescribing a dress code for Advocates. Section 49(1)(b) permits the Bar Council of India to make rules for the conduct and etiquette to be observed by advocates. The Bar Council of India has framed a rule to the effect that an Advocate shall appear in court at all times only in the prescribed dress and his appearance shall always be presentable. It does not, however, prescribe any dress.

The Advocates Act has been amended (Act No.60 of 1974); Section 49(1)(g)(a) has been added. It permits the Bar Council to frame rules about dress to be worn by Advocates having regard to the climatic conditions. Different rules made by the High courts and the traditions followed by them may be irrelevant now. The Bar Council has made a rule, which also permits dhoti to be worn. It provides for black coat. Achkan or Sherwani with bands for all and gown being optional for Advocates appearing before lower courts.

REASONS FOR A UNIFORM

Let's come back to the original question. Why should one continue to wear coat, bands and gowns in a climate totally unsuited for such attire? Is it because it suited the British climate that we have been wearing them? The British themselves are having doubts about it. Some have been giving reasons for their continuance, ‘

the uniform is also a permanent reminder of professional discipline, not a guarantee of good behaviour but a great aid to it. .... The robes of Judges- speak of continuity of development, of responsibility. They remind him that he is not an isolated individual acting for himself alone, here today and gone tomorrow’. (Topelsk’s Legal Land.)

In the Indian context some answers were provided by Justice MN Shukla in Prayag Das Vs Civil Judge (AIR 1974 All 133). Prayag Das, an Advocate, was debarred by Civil Judge for appearing in a Dhoti. He filed writ petition to justify his stand. Allahabad High Court rules, for subordinate courts, by necessary implication, excluded wearing of Dhoti. The court, in para 18 of the report, speaking of the prescribed dress says,

‘In the first place they distinguish an Advocate from a litigant. In the second place it induces a seriousness of purpose and sense of decorum, conducive to the dispensation of justice. If the rule is relaxed Advocates may start to dress more scantily and even indiscreetly’.

This may be sufficient reason to uphold a rule. But, is it sufficient for not relieving us of this burden, on the administrative side? Should we continue to have insults of black coats, bands and gown? At least Advocates appearing in their personal capacities have always disrobed (References of a few such cases are Smt Vidya Varma Vs Dr Shiv Narain Varma AIR 1956 SC 108, T Venkanna Vs The Hon’ble High Court of Mysore AIR 1973 Mysore 127: R Vs Evans 1961 (1) AllER 319).

Justice Megarry in St. Edmundsbury in Diocesan Board Vs Clark ([1973] Ch. 323) remarked,

‘Robes are convenient in normal circumstances as indication of the functions of those engaged in proceedings as enhancing the formality and dignity of grave occasion; they also level visual differences of age, sex and clothing and so aid concentration on the real issue without distraction: but robes are not essential and the court may dispense with them where there are good reasons. Jurisdiction is neither conferred nor excluded by mere matter of attire’.

He thought robes to be

‘unduly burdensome to all concerned, if they were required to be robed in the usual way merely for the purpose of hearing the evidence of one witness and there could be difficulties as to the provisions of the suitable robing room. Accordingly, I shall not robe; counsels shall similarly not be robed’.

Well if this is sufficient reason to dispense with coat, gown and band, then why should Advocates continue to wear them during summers at places where the temperature is more than 45 degree Celsius. There is no earthly reason to do it except that it was done in England. This dress may be fine in Jammu & Kashmir or Himanchal Pradesh or some parts of Uttar Pradesh but not at all suitable for most of the country during summers.

CONCLUSION

Well, should we or shouldn’t we robe? There is no doubt that,

‘from a purely practical point of view, they (robes) are great levellers, so far as the Bar is concerned. In robes the most poverty-stricken junior will not be put out of countenance by a Savile Row suit on a fashionable opponent’. (Topelsk’s ‘Legal Land)

But is it necessary to prescribe black coat, bands and gown during summers? Some other dress in accordance with the summer climate may be provided. The rule framed by Bar Council of India may not be held ultra vires of Section 49(1)(g)(a) but it is undoubtedly not in line with it.

What kind of robes should be provided for? Wouldn’t it be lovely to have a fashion show to select one. Alas, we the lawyers are too conservative. Let me make a few suggestions- without fashion parade. A short sleeve, sober colour Safari suit is an excellent idea. May be a short sleeve shirt tucked into trousers, Army style, of course with different colours, is an equally good one. We may also retain the gown to be worn on top. An Advocate may also wear a nametag. The time has come when we must bid good bye to the black coat, bands and gown, the last signs of British legacy. If we have to inherit, something we had rather inherit their independence of the Bar and Judiciary rather than bands, gowns and black coats.

CHAPTER VII: SUGGESTIONS

Suggestions cost you nothing.

No wonder in India we have a suggestion culture rather than work culture.

Here are a few my suggestions.

WHERE THE CLOUDS COME HOME

It is about Shillong and it's people

Meghalaya- where the clouds come home declares a tourist brochure. Well, it's literally true. And they come home quite frequently. The Khasi tribe dominates Shillong, the capital of Meghalaya, and their language is Khasi. They use the Roman script. Khasis have a matriarchal society: husbands go and live with their wives. If there is more than one daughter then it is the youngest one who gets the ancestral house. Children take their mother's surname.

Khasis are simple people. When I was in Shillong, I asked a girl with red cheek if the red on her cheeks was natural. She immediately started rubbing her cheeks to show that it was.

Taxis in Shillong do not have a meter. They behave like Rickshaw-wallas, except for the fact their rates are more or less fixed. They also have shared taxies. No taxi exclusively hired by anyone. If seats are available, one can always hail a taxi though it may be partly occupied.

One should not reach Shillong after 5 pm. It is difficult to find accommodation. We had the misfortune of reaching Shillong at 8.30 pm. There was a Khasi boy, Ben, with us in the bus. He spent one hour with us trying to locate our contact in Shillong. May be the Meghalaya government should add in its brochure: Meghalaya, the land of helpful people.

ELECTION AT AMETHI

This article is about about democracy in action; it is about 1989 election at Amethi between grandsons of two of the India's greatest leaders - Raj Mohan Gandi and Rajiv Gandhi.

EUTHANASIA

Euthanasia or mercy killing is the act or practise of painlessly putting to death persons suffering from painful or incurable diseases. It is talked about in public; debated by philosophers. If God has given life then he, and only he, can take it. But if a person can never talk, never feel, never express and spends his life like a vegetable, then is his life worth sustaining?

There is another aspect. It may lead to involuntary Euthanasia or manipulating people into asking for suicide or actually killing them without their permission if they are a burden. We have precedents, in this century itself- Nazi Holocaust. Non-Germans were viewed as expendable. It did not take long to transform the war crimes into an act of compassion.

LEGALITY

There is no specific provision for euthanasia in most of the legal systems. In most of the legal systems Euthanasia is treated as suicide or murder.1 Holland is a country where the doctors, courts and the general public more openly debate it than anywhere else. According to a sample survey, the majority there supports legal right to die of course after strictly complying with some unwritten rules. The law there also stands, but is selectively enforced. In India an attempt to commit suicide is punishable. Of course, if one is successful in his attempt then he can’t be punished. You don’t convict a dead man. But any one who abets suicide is liable to be punished. Murder is of course punishable.
In England, a voluntary Euthanasia legalisation society was formed in 1935. But a bill introduced by the society was defeated in the House of Lords the next year and again in 1950.

This question is likely to attract further interest in the near future. The case of Nancy Cruzan has gone to the highest Courts in U.S.A. The Court is to decide whether the parents of Nancy Cruzan could ask the doctors to remove the tubes feeding her. She has been lies in a vegetative state for the last eight years in a hospital. Her medical expenses are being borne not by her parents but by the state that maintains the hospital. But the parents' claim that decision end Nancy’s life should rest with them based on intimate knowledge of Nancy’s views and preferences.2

INDIAN LAW

Our Supreme Court too has dealt with the question, whether a person has the right to take his own life. In P Rathinam Vs Union of India, 1994(3) SCC 394 the court declared section 309 of Indian Penal Code providing punishment for the attempt to commit suicide to be ultravires of the constitution. In a later decision Gian Kaur Vs State of Punjab, 1994(3) SCC 394 it overruled its previous decision. It upheld the validity of section 309 of IPC. It left the question to the legislature to legislate.

But debates apart, I for one firmly believe that it is better to die than to live a helpless life. If I ever happen to be in such a situation, I hope my family members will take that decision- put me into eternal sleep. But I am no longer so sure.

People said whom I loved my dog more than any one else, he was suffering. On two earlier occasions when the Vet had advised me to put him to sleep, I had refused. And he recovered and was moving about. But this was the third time. He was old and blind. Then, broke his legs and had bleeding wounds. I could not bear to watch his sufferings. I had him; lenthally injected. Within seconds he went off to sleep- the eternal sleep. In any case he might have died may be within ten days. Now I Often go to the place where he was put to eternal sleep and ponder. Was my decision right? Could he be well again? After all on the two earlier occasions he did get well. That was despite the Vet’s opinion. I feel guilty. Still I know what I will do if I am in such a situation: without remorse, without guilt, I will put myself to eternal sleep. I am sure; in my rebirth it will be a stronger me. But I am not sure what others will do. They too have a conscience to keep.

1Since the writing of this article, the Legislative Assembly of the Northern Territory of Australia has enacted Rights of the Terminally Ill Act 1995 providing that a medical practitioner may assist a terminally ill patient to end his life. This was later repealed.

2Since the writing of this article the American Supreme Court has by six to three dismissed the appeal and upheld the decision of the Missouri Supreme Court refusing to remove the tubes feeding her. Cruzan Vs Director, Mo. Health Dept. 111 LEd 2nd 224. A comment on this case and debate on the issue is available in form of an article Do we have a Right to Die in the Book Freedom's Law The Moral Reading of The American Constitution by Ronald Dworkin.

JEFFERSON AND THE DEFAMATION LAW

This article is a comment on The Defamation Bill, 1988, which was being introduced by the Government at that time and the defamation law in USA. Truth was not a defence under the bill. This Bill never became a law.

Thomas Jefferson was selected to write the Declaration of Independence over the protests of many. He went on to become the Governor of Virginia, America’s Ambassador to Paris, Washington’s Secretary of State, Vice President under Adam and then the third President of United States of America. When his house caught fire his only query was, is his books were rescued. But his passion was not limited to books alone.

His friend had married a buxom woman named Betsay. He was of a frequent visitor to their house. But when his friend went away to help negotiate a treaty with the Red Indians, Jefferson’s visit to the lonely bride Betsay became more than casual. He tried his best to persuade her that there was nothing wrong in adultery the illicit affair. Of course it is debatable if it should still be an offence. Betsay did not oblige him.

This happened towards the end of the 18th century. He was then a young lawyer from Virginia. He was to regret it. At that time for failing in his attempt and later on for this attempt. When he became the president of America his opponents saw to it that the incident with Betsay was published in the newspapers. Jefferson, who always believed in the absolute freedom of the press, wavered. All principles/rules are undoubtedly made for others and not for oneself. He wrote to the Governor of the States remarking ‘a few wholesome prosecutions at the local level’ will restore the madmen to their senses. Pennsylvania and New York immediately indicted Editors of the newspapers. They were tried under the old law or seditious libel, which made the truth or falsity of the charge irrelevant. Hamilton, his long time adversary, took over the defence of the editors. Jefferson, to the credit, had made no attempt to disguise the truth. He had admitted that when young and single he had offered to make love with the beautiful lady Betsay. But the truth was irrelevant in these proceedings.

Hamilton made one of the most brilliant speeches for the defence. So effective was it, that it persuaded the New York legislature to pass an entirely new libel law in which truth was the deciding factor. Other states soon followed the suit. Thus was established the principle which controls the newspapers today in USA.

This happened more than 150 years ago, but in India truth is still not the deciding factor. Instead, it is still the elusive term the ‘public good’. The Defamation Bill, 1988 does not remove this defect despite the recommendation of the press commission. Truth should always be a complete and good defence to any action of defamation whether civil or criminal. It is true that in England truth, though a complete answer to defamation in civil action is, not alone the answer to a criminal charge. But should we, with our national motto ‘Sataymev Jayate’ follow the English law. Isn’t it rather strange for a nation, with this motto, to adopt a law where truth does not necessarily prevail? May be, after all, truth should not always prevail. We have commissions and committees to prevail over it.

LAWYERS' CREED

The role of lawyers is often misunderstood. This article clarifies it.

The Prime Minister has made a statement in the Parliament on 10, April 1989 about the defence lawyers in the Indira Gandhi murder case. His sentiments were rather unfortunate. The role of lawyers is often misunderstood. This is how Jonathan Swift places them in Gulliver's Travels, that lawyers are a,

'society of men bred up from their youth to prove that black is white and white is black accordingly as they are paid.’

And these sentiments are shared by many.

The Prime Minister misunderstood the role of the lawyers. So has the public. There was similar criticism when some lawyers took up defence briefs for the Sikh soldiers charged with mutiny in 1984. This happened after Operation Bluestar. Sikh sepoys of the Sikh Regiment Centre, Ramgarh, had looted arms and ammunition, killed their commanding officer, and started for Amritsar. I remember the criticism and the contempt for I defended them (see End Note-1). Many were court martialled at Allahabad (see End Note-2). No lawyer can or should refuse any case merely because of the personalities involved.

Let me tell you about the Thomas Erskine - one of the greatest advocates of all times. He was born in the eighteenth century of parents. Who had fallen on hard times. He took up law on the advice of Lord Mansfield. He had no briefs and got his first case entirely by chance and argued only because he had advised against compromising the case. His client also did not want to compromise (see End Note-3). He started his speech in the case as an unknown beginner at the Bar and ended as a national hero. According to Lord Campbell,

'As an advocate [He] was without an equal and ancient or modern times. [The reason -] he defended his client as if his own life was in danger'. (All Jangle And Riot- A barrister’s history of the bar by RG Hamilton; published by Professional Books Ltd.)

It was in his time that Thomas Paine wrote a book etitled 'Rights of Man'. It contained several offensive remark about the monarchy, for which Paine was prosecuted for saditious lebel The prosecution was conducted in absentia since Paine has gone to France. Erskine personally never approved of the book. In fact, at that time, very few in England did. He had been advised not to accept the case. Lord Loughborough went out of the way to tell him not to take Paine's brief. But Erskine refused. He accepted the case for the defence. His address to the jury sums up the role of lawyers.

‘I will for ever at all hazards assert the dignity, independence and integrity of the English Bar without which impartial justice, the most valuable part of the English Constitution, can have no existence. From the moment that any Advocate can be permitted to say that he will or will not appear for an accused arraigned in the court where he daily sits to practice, from that moment the liberties of England are at an end. If the Advocate refuses to the charge or the defence, he assumes the character of judge, nay he assumes it before the hour of judgement and, in proportion to his rank and reputation puts the heavy influence of perhaps a mistaken opinion into scales against the accused in whose favour the benevolent principle of English law makes all presumptions and which commands the very judge to be his counsel.’

It is besides the point that Paine was convicted or that Erskine lost the office of Attorney General to the Prince of Wales.

One must remember advocates were pressurised and advised not to accept the cases of detenues during the Emergency (see here and here). Erskine’s speech is still relevant today. It is still a model that guides a course of action for lawyers.

End Note-1: The recruits, who had yet to pay their pledge (kasm) were court martialled at Jabalpur. JCOs and NCOs were court martial at Allahabad. This was after Mrs. Indira Gandhi was assassinated. The mazimum punishment was the death penalty for those tried at Allahabad. The Court martial could not proceed unless a defence counsel was provided. The Court atmosphere was very tense, more so because of the assassination of Mrs. Indira Gandhi. There was so much of animosity that: many refuse to talk to Sikhs; no lawyer was willing to take up their cases. It is only after two cases were conducted by me that others took up their cases. I was criticised not only by my friends (serving in the defence) and outside (but also by my professional colleagues). My father was the one who supported me. This surprise may JCOs and NCOs, who were tried at Allahabad, were generally giving five years rigorous imprisonment and were dismissed from service. The recruits were not dismissed but were sent to different units on different purposes.

End Note-2: I had done many writ petitions against the court martial but this was my first and only experience of the court martial. In a trial by jury the Judge is a legally trained person and voices the jury for their verdict on question of fact. The jury only has to say guilty or not guilty. It is similar to a court martial though here Judges (normally three, five or more with one as a presiding judge) are defence personnel; not legally trained. They pronounced on facts as well as on law. There is a judge advocate, a legally trend person who advice them in a court judges normally enter after lawyers and litigants have entered and all present rise. It is discourteous if a lawyer, who has a case, is not already present. Lawyers also never leave a court till the judges have reason. It is discourtesy to leave a judge alone in a court. But in a court martial it is the other ways, judges are first to enter and last to leave. I was told that this is due to security reasons. The other difference I found was that the court has fixed timings. One has to conduct a case throughout the entire time or till the case lasts. But in a court martial, it is expected that the defence counsel would ask for the time in between. The first day in the court martial when I did not ask for the time, the Judges got uncomfortable and I was advised by the defence officer, who was briefing me, to seek adjournment.

End Note-3: This is in short how it happened, so well recorded in All Jangle And Riot A- barrister’s history of the bar by RG Hamilton.

'Captain Baillie was the Lieutenant Governor of Green Wich. The Hospital should have housed sailors only. But persons in high places found it convenient to put their civilian friends there. This was enough to cut the sailors’ ration. Captain Baillie complained many times of these abuses, to no avail; so he published a pamphlet criticising Lord Sandwich the first Lord of the Admiralty. He was not only suspended but prosecuted for criminal libel. Erskine had no work. In the coffee-house he overheard a naval officer. Erskine, generous with his opinion, offered him his. He launched into attack on the enemies of the Captain Baillie. As the luck would have it he was talking to Captain Baillie himself. This was how he was engaged in the case. But he was the junior most of the team of five selected to defend Captain Baillie. In conference his colleagues were for settling the case but Erskine advised against the same. Baillie though he was the man for him.
This is how Erskine argued "I cannot relinquish the high privilege of defending such a character," he said; "I will not give up even my small share of the honour of repelling and exposing so odious a prosecution... That such wretches should escape chains and a dungeon is a reproach to humanity, and to all order and government; but that they should become prosecutors is a degree of effrontery that would not be believed by any man who did not accustom himself to observe the shameless scenes which the monstrous age we live in is every day producing. Indeed, Lord Sandwich has, in my mind, acted such a part."
This was intolerable. Lord Mansfield intervened to remind him that Lord Sandwich was not before the Court. Erskine retorted:
"I know that he is not formally before the Court, but for that very reason I will bring him before the Court: he has placed these men in the front of the battle, in hopes to escape under their shelter, but I will not join in battle with them. I assert that the Earl of Sandwich has but one road to escape out of this business without pollution and disgrace: and that is, by publicly disavowing the acts of the prosecutors, and restoring Captain Baillie to his command"
He came to a thundering conclusion, "if he keeps this injured man suspended or dares to turn that suspension into a removal, I shall then not scruple to declare him an accomplice in their guilt, a shameless oppressor, a disgrace to this rank, and a traitor to this trust."
He started the speech as an unknown beginner at the Bar; he ended it almost a national hero. Even as he left the court, the attorneys flocked around him, to catch at his gown and brief him for their clients.'

OFF WITH HIS HEAD

This article was written at that time when UP Cabinet had taken a decision to set up a bench of Allahabad High Court for the western region in 1981. The Allahabad lawyers had gone on strike, the longest in its history. This was to place the correct perspective before the people and mobilise public support.

The U.P. Cabinets decision to set up a bench of the Allahabad High Court in the western region reminds one of the Queen of heart’s decision. ‘Off with his head’ in ‘Alice in Wonderland’.

The Chief Minister expressed his ignorance about the recommendation of the Law Commission and the correspondence on the subject. The Law Commission in its fourth report rejected the view that splitting of the high court was necessary in order to take justice to the door of the litigant.

MC Seetalvad, the then Chairman of Law Commission, says (My life, Law and other things page 247),

‘lawyers who appeared on behalf of the Lucknow Bar Association conceded in private that the Lucknow bench should be abolished. Similar views were expressed by advocates practising before different benches of the M.P High Court and the Rajasthan High Court.'

Chief Justice B Dayal of the MP High Court wrote a letter to the then Law Minister seeking abolition of benches in Madhya Pradesh. Sri HR Gokhale agreed but could not do it because of political reasons. In a conference of Chief Justices in 1979 it was said that if the High Court benches were created, in no time benches of the Supreme Court would be created not only in the south but also in east and west.

There can’t be benches of a High Court. Lucknow Bench was created due to historical necessity. The creation of benches does not improve the administration of justice. It undermines it. The difference in expense due to distance is so insignificant that merely for its sake proper administration of justice cannot be sacrificed. If there are arrears at Allahabad it is not because of the High Court is situated at Allahabad but because there are not enough judges and other staff. Experience shows, splitting of the Courts: increases arrears, reduces the uniformity a,amongst the judges, and diminishes the independence not only of the bar but also of the bench. There is no justification for creation of any bench nor should one be created. A State may be divided if need be.

STRIKES

Tarts and lawyers are the two oldest professions in the world. And both aim to please. But to please whom- Opinions may differ and notwithstanding legal semantics. We lawyers, like tarts, must please our clients, customers. By boycotting the courts we fail in our primary objective - getting relief for them. Besides one must consider the morality of members of a noble (if it is still noble) and one might say essential (certainly true of tarts, but debatable for lawyers) professions going on strike. It undoubtedly interferes and obstructs the course of justice. Well in the legal world when someone does that, he commits a contempt of the Court.

If history serves me right, strikes were unheard of in the pre-independence era. Apart from the calls given during the freedom struggle to boycott all institutions, including the courts, it was never resorted to. In independent India the first one was when Justice AN Ray superseded his three colleagues, after Keshvanand Bharti case, to become the Chief Justice of India. Since then strikes have never looked back. They are on the rise. It is not only the Indian population, which is on the rise.

We go on a strike, for every conceivable issue, irrespective of any issue being conceived. Are they proper? Do we achieve anything? I can't think of any reason for which a strike should be resorted to. We all know what was the impact of the first landmark strike of independent India when Indira Gandhi superseded Justice H.R. Khanna (due to the Habeas Corpus case decision), a judge in whose honour, according to the New York Times, a monument should be erected in every city. We, the lawyers, wanted to constitute an Independent Judiciary but instead of that laid down a sound foundation for strikes.

YV Chandrachud (Retd. Chief Justice of India) has occasion to say that legal system is on

'the verge of collapse.'

RS Pathak (Retd. Chief Justice of India) took some bite out of it,

‘... [It is] merely in a state of crisis.'

Two eminent judges may debate about it but the fact remains that the system, given the present state of affairs, if it has not done so already, will wither away. In Allen Vs Alfred McAlpine ,1968 (I) AllER 543, Denning rightly remarked,

‘Law’s delays have been intolerable. They have lasted so long as to turn the justice sour.’

True, neither strikes are the sole reason for delays nor will their abolition clear off the delays, but the first and foremost question is of the right mental attitude to tackle the problem. And we must begin with what we the lawyers can do- stop strikes.

I began this note with tarts. Let me end up with them. I am quite charmed by them. They never claim to belong to a noble profession. They are not hypocrites. If history is any witness then tarts do have gone on strikes, then why should we also.

FOR THE LOVE OF THEMIS

This article describes the conditions of the law courts in the country. Themis is the Greek goddess of justice. She is blindfolded and has a pair of scales in one hand and a sword in the other.

What films are to Bombay, law is to Allahabad. Despite the University’s reputation for churning out civil servants, law is Allahabad’s best industry. It has produced some of the best legal minds in the country. Allahabad has a High Court, Board of Revenue, a District Court, Labour Courts, a Sales Tax Tribunal, and Income Tax Tribunal, and a Services Tribunal. You think of a court and Allahabad has got it. I still wonder how come the Supreme Court was established in Delhi.1

Every alternate house in Allahabad is a house of a lawyer or a judge. The ‘legal’ ethos is omnipresent. But alas- it is conservative. Despite giving Amitabh Bachchan to the nation, one never sees a boy and a girl walking hand in hand. What a pity - Love affairs are still regarded as scandalous. And as far fashion? Allahabad is still a village. Nothing new happens here. It was and it still is a sleeping town. But one place in Allahabad never slept: the law courts. If you went to the courts, you heard the best; juniors better than the seniors. The activity was brisk. But all that is now gone. Something is amiss. There is a crowd, but nothing seems to happens.

The High Court is busy doing admission and order cases. There is no time for final hearing. One has even forgotten its spelling. I hope I got it right. If one has a fresh case then one is busy. May be the fresh case will take only two minutes, but one has to wait at least for two hours.

Lawyers are not idle. They are busy. But busy with what? Almost all the lawyers spend their time from ten to four without uttering a word. What a waste! Imagine lawyers spending all their time not in arguing, but just waiting for the case to be taken up. And seldom are they taken up.

It is not that the High Court does not function. It does. Yet the net result is zero. It is frustrating. Well, maddening too. If one side has a stay, it is difficult to get it vacated. You spend a lifetime getting a case listed and another getting the matter taken up. The stay order is invariably left to the final hearing, which rarely happens.

There are insufficient chambers for the lawyers. There is no place to sit and work. One has to roam in the corridors. Soon that will also end. There will be no place in the corridors. The population explosion has hit the High court also.

The Lawyers are in courts from ten to four. But they do nothing. Yet they cannot leave the court, because they have to watch their ‘sleeping cases’ No lawyer can afford to take the risk of leaving the courts, for if the case is left out, it is passed over for years. This is true not only for the courts in Allahabad, but for all the courts of the country.

It was Charles Dickens in Bleak House who had said ,

‘This is a court of Chancery-which so exhausts finances, patience, hope.'

In this century it has been repeated by Lord Denning, ‘Law’s delays... have lasted so long as to turn justice sour' (Allen Vs Alfred McAlpine 1968(1) AllER 543) This is so true for our courts.

The lawyers earn good money, but they have to spend a lifetime in the courts. Is this the way to serve ‘Themis’? Is this the purpose of life? Does anyone have any other suggestions except the one, to fill-up at least all vacancies that were never filled for all these years except for a short time when the Janata Party was in power?

I often wonder if the solution is that simple. If it is so, then why the hell does it strike everyone except the government. And secondly all lawyers should go to hell and so should the judges. In any case that is the place where they all finally land up. At least all the lawyers do. I being one can vouch for it.2



1Many narrate a story. One does not know if it is true or mere fancy. According to it the Supreme Court was to be established in Allahabad. Pandit Nehru wanted it. But Mrs Kania preferred Delhi. Nehru reluctantly agreed. After all her husband was the 1st Chief Justice of India.

2This piece was written many years ago when I was a lawyer. Since the publication of the 1st edition, I have become the permanent Judge of the Allahabad High Court.