law life

Objective of lawyers’ black jacket and gown!

I originally detested it! The black jacket and gown, a lawyer has to wear to courts! It’s alien, foreign and not conducive to Indian environment, especially Kerala’s tropical climate. That was my opinion when I started practicing at Munsiff Court, Perumbavoor, in the year 2008. The mofussil court halls there hardly had any ceiling fans and the air conditioners were reserved to the High Court and cash-rich tribunals like DRT. Being a junior, I was running around everywhere on a bike, and the black attire used to tire me and drench my inner world.

Ten years down the line, I understand why the elders prescribed this uncomfortable outfit.

To break it down, one has to get an idea about the routine work of a moderately good lawyer. He is not spending much of his time in court halls arguing cases. His juniors do that – running through courts. The senior lawyer is confined to a seat, doing hours and hours of drafting, researching, meeting clients and reading illegible depositions. Court appearances are there, but office work predominates the life of a good lawyer. The most difficult task of a lawyer is to draft a petition, correctly. Any junior can represent a case in court, but drafting requires extensive experience. So, by age, a lawyer matures from his bike to a car, and from several court halls to a select few, and is mainly confined to a seat in his office.

The perks of sitting in an office for more than 18 hours a day are increased waist line and protruding belly. Yes, one can guesstimate the success of a lawyer by gauging his belly.

Anyway, so to tame these unwanted physical protrusions, the elders prescribed lawyers to wear black coat and the gown, to courts. To make all lawyers look decent and healthy, more like a human, and less like a frog! Yes, the black coat is to tuck the unyielding tummy, and the over gown is to hide the other physical projections. That is the true objective behind the senseless attire – to make lawyers look physically sensible.

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Acquittal in Rape Trial

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I am a civil lawyer, and criminal trials are done only for the money involved in it.  Yet, when a civil lawyer conducts a criminal trial, the whole thing becomes super fun. This was a trial under S.376 IPC – Rape. Rape trial is considered to be the most difficult among various criminal trials. The word of the victim ‘that accused ravished her’, is enough to convict the accused. Even murder trials are far easier, as the dead will never come to court to give evidence against the accused. But, in a rape trial, the victim will come to court, and her statement decides it all.

In most occasions, rape trial ends in conviction, unless the parties compromise to an acquittal. In this case, there was no compromise, and the acquittal was hard earned. The trial got twisted on failure of the prosecution to produce a prior statement of the victim  before the court. A rather minor technicality, but exploited with several civil citations, to free the accused.

However, once the order of acquittal was pronounced, my client was nowhere to be seen. I received only a portion of the agreed fees and rest had to be accounted to unrecoverable loss. A big lesson learned – collect whole fees beforehand in criminal cases, unlike in civil cases.

Paddy Land Amendment Act, 2018

I have written a lot about Kerala Conservation of Paddy Land and Wetland Act, 2008, suffering continuous amendments since its inception. Here is the scan copy of the latest amendment to the Act, which unsettles the procedure for correction of databank and conversion of paddy lands.

Recognition of Private Schools under the Right to Educational Act – Matters to be considered.

Kerala Government used to deny recognition to private unaided schools under Right of Children to Free and Compulsory Education Act, 2009, citing availability of Government aided schools in the vicinity.  Many private schools were ordered to be closed down without affording them recognition, to increase the pupil strength in the nearby government aided schools. This had led to filing of many writ petitions in the Kerala High Court. The court finally disallowed the contentions of the Kerala Government which sought to implement the criteria mentions in the Kerala Educations Rules, while considering the different issue of recognition of schools under the Right to Education Act of 2009. Here is the copy of that judgment.

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Stamps in NCLT

First question that popped into my mind when a client engaged me to appear in National Company Law Tribunal, Chennai, was how to I procure local stamps required to file my Vakalath. Each state have their own court-fees stamps and advocate/clerk’s-welfare-stamps. So, will NCLT Chennai accept Kerala Stamps? Answer is YES..! They will.

The NCLT court-registry is totally ignorant about the required Vakalath Stamps. They are concerned only with the fees prescribed in the Schedule to the Tribunal Rules. All other legal formalities are beyond their comprehension. All you need is a colourful Vakalath, with lot of stamps, affixed all over it.

If this issue is examined on the legal side, stamps should be affixed as per the State Rules where the document is executed. But when the same document is taken to a different State, one has to provide for the differential stamp-value as well, or else the document will be impounded. In Kerala, the court fees stamps and other stamps required in a Vakalath are of much higher in value than that of Tamil Nadu. So, even legally speaking, Kerala Vakalath with Kerala Stamps, should be accepted in Tamil Nadu as well !

Kerala Investment Promotion and Facilitation Act, 2018

When the Ordinance became an Act, half of the provisions regarding investment promotions and all, got lost in transit. Typical Kerala Style!

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B Kamal Pasha – Oru adaar judge

It was during my initial years of practice that I first met Justice B Kamal Pasha, when he was officiating as Principles Sessions Judge, Ernakulam. It was an appeal against conviction under S. 379IPC (Crl App 687/11), and I was seeking suspension of sentence within 5days of imprisonment. He said – nothing doing, that appellant/accused will steal again. I submitted that the accused is recently married, showed the wedding card, and stated that he is expecting a child within 7months – a reformed man. This moved the judge, and he immediately suspended the sentence, without even seeking the report of the prosecutor. (Years later, his brother – B Kalam Pasha J, allowed that appeal and set aside the conviction). The rare empathy showed by Justice Kamal Pasha, in the form of interim suspension of sentence, saved the appellant’s marriage, and my career in criminal law (I am more of a civil guy).

Thereafter, I have consistently appeared before Justice B Kamal Pasha, in Sessions Court and after his elevation, in High Court. J Pasha is a man of simple common sense. He will decide cases on logic and fairness, rather than on strict letters of law. Because of this, in High Court, it was dangerous to appear before him in criminal matters, and more easy to handle in civil jurisdiction. Bold, outspoken and upright, he loved dictating judgments in open court – like a king. Though he had a questionable affinity for limelight and newspaper-recognition, he was a good judge overall.

On his day of retirement, I write this, because he has avowed that he will not take up any government posts hereafter. That is a decision, many good judges shy away from taking, but is a need of the hour to protect the system. He also retired with a blast. In his retirement speech, he criticized the collegium nominees sent for elevation to the Kerala High Court. I had goosebumps, when he said that aloud, in full court reference. It is a matter which many lawyers whispered to each other but never dared to air it in public. Pasha was classic Basha, the character Rajanikanth portrayed, on his day of retirement.

Anyway, I wish Justice B Kamal Pasha, all happiness and peace in his retired life.!
(I am sure he is not done yet, and we will hear more from him)