It is important to pay attention to the observations and queries of the court. This post explains the same with an incident, at early stage of my career, from the court of Justice Hriday Nath Seth (15.10.1925 – 28.10.2017). He was a judge of the Allahabad High court, when I joined the Bar and retired as the Chief Justice of the Punjab and Haryana High Court on 14th October 1987.
Mr Justice Hriday Nath Seth with his wife Mrs Padma Seth on the lawns of his house in Allahabad. This picture was taken on their last marriage anniversary together.
Often, advocates don’t pay attention to the observations of the judges or avoid answering their queries. This irritates a judge more than anything.
Observations from the judges indicate: their thinking on the case; where are they wondering; what do they want from the advocates; and what line of argument they should pursue. Queries are often on a point that the judges don’t understand or want the advocates to understand the fallacy of their argument.
Understanding the observations, improves ones chances of winning the case and satisfactory answering the queries takes one far in the profession. Sometimes when you don't take hints from the observations then the judges may form poor opinion about you.
The best thing is to answer the question immediately.
Nevertheless, sometimes it is good advocacy to delay the answer. If it so happens, then the right thing is to acknowledge it and after adding appropriate form of address mention, as follows:
- The query is important, but may I finish the point that I am elaborating. It will answer the query; or
- May I answer the query after finishing the point that I am elaborating; or
- I don’t have answer to the query just now. May I answer it, after obtaining instructions, or studying the point.
The judges will grant permission and will also have satisfaction that they are not being ignored. I will like to elaborate it with an incident from the court of Justice Hriday Nath Seth (15.10.1925 – 28.10.2017) but first his brief biographical sketch.
Justice HN Seth - Brief Life Sketch
Justice SN Seth was father of Justice Seth. He was also a judge of the Allahabad High court but died in office on 26th January 1951. On this day, a traditional match is played between the Bar and the Bench at Allahabad. It was during such a match in 1951, a message came about his sad demise due to heart attack. The match was abandoned and from next year, it came to be known as ‘Justice Seth Memorial Match’.
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| Allahabad High Court Bar and Bench Cricket match 1962 - Please comment if you recognise them |
Justice Hriday Nath Seth was educated at Allahabad. After getting law degree, he started practice before Allahabad High Court. He was appointed Assistant Government Advocate in 1954, Junior Standing Counsel in 1960, and standing counsel in 1965. He was appointed Additional judge of the Allahabad High Court on 7-7-1969 and was made permanent on 25.08.1972. He was elevated as the Chief Justice Punjab and Haryana High Court on 18-8-1986 and retired on 14.10.1987.
Justice Seth was soft spoken, with sound grounding in every branch of law. It was always a pleasure to appear before him. He conducted his court well but was a bit conservative and did not grant interim orders easily. Nevertheless, during emergency, he stood tall, was liberal, and granted bold orders for the detenue. He made Indian judiciary proud. Shanti Bhusan was his class fellow. In his tribute, he writes,
“Extremely courteous and soft-spoken, Justice Seth was a judge in the classical mould and had good knowledge of all laws, be it civil, criminal or constitutional.”
Let’s talk about the incident.
The Incident
I passed out law in 1973 and practised in the lower courts at Banda and Kanpur for two years. I shifted to Allahabad after imposition of internal emergency. Immediately thereafter, my father Virendra Kumar Singh Chaudhary, a senior advocate at the High Court, was falsely arrested under Defence of India Rules (DIR). He was granted bail but was preventively detained under Maintenance of Internal security Act (MISA), even before he could come out of jail.
A habeas corpus petition was filed for his release. The case was taken up in the bench of Justice HN Seth and Justice GD Srivastava. Jagdish Swarup, former Solicitor General of India, was our advocate. SN Kackkar (later Solicitor General of India & Union Law Minister) was the Advocate General of UP at that time. He raised a preliminary objection that in view of suspension of right to move the court for enforcement of Articles 14, 19, 21 and 22 – habeas corpus was not maintainable.
On the earlier occasion, right to move the court for enforcement of Articles 14, 19, 21 and 22 was suspended but it was partial: this time it was in toto. It had no easy answer.
During arguments, Justice Seth wondered if habeas corpus against private detentions namely of wives by their parents, or for custody of children would also be not maintainable. The Bench decided to refer the case to the larger bench and made the debate open to all members of the Bar. However, the query remained unanswered.
I researched the point and also addressed the court in the last, as I was the junior most advocate to address the court.
Supreme Court in Vidya Verma V. Dr. Shiv Naranain Verma A.I.R. 1956 SC 108 held that habeas corpus under article 32 against a private detention of a lady was held not maintainable. The court opined that article 21 is not available against private persons. As soon as I referred the case and the bench read it, face of Justice Seth lit up. He smiled and said,
“Your argument is that a case of illegal detention is like private detention and Habeas Corpus is maintainable.”
In the referring order, the court observed,
“In the end, Sri Yatindra Singh, who is also appearing on behalf of the petitioner, contended that a detention order made by any executive authority without the authority of law or in contravention of the provision of the Statute authorizing detention is as good as detention made by private individual. In the case of Smt. Vidya Verma V. Dr. Shiv Naranain Verma A.I.R. 1956 SC 108 the Supreme Court has ruled that Violation of a right to personal liberty by a private individual is not within the purview the Art. 21. Therefore, where a person’ s right to personal liberty is infringed by a private individual he has to seek his remedy under the ordinary law and not under Art. 32 of the Constitution. Learned Counsel therefore, urged that in a case, where the substance of a complaint made by a person is that he is being detained at the instance of an individual, without the authority of a valid law, his complaint falls completely outside the ambit of Art. 21. Suspension of the rights of a person to move a court for the enforcement of right under Art. 21 therefore, cannot affect the right of a person to seek his remedy against such deprivation of personal liberty. According to him this is precisely what is being sought to be done in the present writ petition and the preliminary objection deserves to be rejected.”
We won the case before five judge full bench of the Allahabad High Court (Virendra Kumar Singh Chaudhary Vs DM Allahabad 1976 Nirnay Patrika 855), but lost it before the Supreme Court {ADM Jabalpur Vs Shiv Kant Shukla AIR 1976 SC 1207: (1976)2 SCC 521} 😞
Later, this argument was utilised by a bench of Justice BN Katju and Justice MM Murtaza Husain in Tej Bahadur Singh Vs. State of UP 1977 All LJ 9: 1977 AWC 18 to allow a habeas corpus against illegal detention by the State, though it was not detention under MISA. This was the only case, to be allowed by the Allahabad High Court.
Justice GD Srivstava was promoted from the district judiciary. He retired early. I don’t remember arguing any other case before him but Justice Seth continued to be a judge at Allahabad, till he was elevated as the Chief Justice of Punjab & Haryana High Court in August 1986. He always gave me patient hearing, respected my submissions, and I don’t remember losing any case before him.
Conclusion
Perhaps, the first impression is the last one and this was because I had listened carefully, researched the query, and satisfactorily answered it as soon as I got the opportunity.
So, pay attention to the queries and observations of the judges: answer or acknowledge the query; make appropriate line of argument; and avoid irritating the judge.
This post is part of the series 'LegalTrek'. They are under the following sub-heading: Book review/ Biography, Drama/ Judgements, History, Managing Court & Judiciary, Office Management, Personal, Reminiscence/ Advice, Suggestions/ Opinion. If necessary, the division will further diversified. This one is under the sub-heading Managing Court & Judiciary.
One can access these posts in this series by clicking on the label 'LegalTrek' on the right hand side and this sub-heading posts by clicking 'Advice' or 'Reminiscences'.
LegalTrek - Reminiscences/ Advice
।। Avoid Legalese - Adopt Plain English।। Know Your Judge।। Soar Rather than Sulk।। One, Who arrests, Bears The Burden।। Then All Lawyers Are Lunatic।। Writing, Expressing - Improves Communication।। Keep The Judge In Good Humour।। What Irritates A Judge Most।।
#JusticeHNSeth #Advocacy #LegalTrek
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