Kerala High Court

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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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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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)

Vayaliparambil, Vazhakkala Annex..!

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A dream come true.. A home for my twins to run around.. Some land for me to plant trees.. Introducing my new address – Vayaliparambil, Moolepadam Road, Vazhakkala, Kakkand West – 682030. Everyone is invited.!

Vacation Court’s inherent infirmity – “What is the urgency?”

Today I moved a civil revision petition against order of a trial court holding that a suit for compensation is maintainable and the parties should suffer trial. The revision petition was moved before the vacation bench of the Kerala High Court. In my initial evaluation of the case, it should have received the interim order staying further proceedings in court below, without much ado. However, the vacation judge decided to ask the most difficult and tricky question – “What is the urgency? Why cant it be heard on the reopening date?”

Well, I wasn’t prepared for such a question, to be honest. I was hoping for questions on merits of the case, why the suit should not go to trial or what is wrong with the impugned order of the court below.

I fumbled on this query of the learned vacation judge. I said that since the suit is listed for trial, it is in the best interest of parties that it is stayed beforehand rather than keeping the parties guessing till the 11th hour. Either way, considering my sad face and loss for answers, the compassionate judge granted me the interim order as prayed for.

On retrospection, I believe, I didnt say the truth about the urgency in moving the vacation bench. Its purely my financial urgency. The urgency is not for the client or for the case, but for me and my purse alone.

It is an accepted fact that summer vacations are drought season for all lawyers. It is to tide over the said financial crisis that I moved the vacation bench. The learned lordships with so vast experience should know it better than any of us. Still they ask this tricky question, “What is the urgency”, as if they don’t know the real answer. Time for judicial reforms of (at least) vacation courts, I guess.

Mangalya Nidhi Cess – A shot at improving the law!

Kaladharan is a friend of my colleague, who owns an auditorium at Perumbavoor. He approached me with a rare problem that his auditorium is additionally taxed by the Government, with retrospective effect, through the introduction of Mangalya Nidhi Cess in the Kerala Finance Act 2013. I told him that there is no easy way out, but the new cess could be challenged before the High Court, as ultra vires the Constitution. He asked me to prepare the writ petition and do the needful. In a week, I did my research and drafted the writ petition. However, Kaladharan did not turn up to sign the writ petition or to move the case.I wasn’t disappointed. It happens once in a while with serious litigation.

Anyway, a month later, I got a call from one Gopinatha Panickar, who is an old acquaintance, with the same problem.  He was the President of Alappuzha Auditorium Owners Association. I told him about my previous research and already drafted writ petition, awaiting daylight. I email him the draft, and he was readily impressed by my grounds taken therein. Together QuickMemo+_2014-08-13-16-37-07-1 - Copywe filed the writ petition (WP(C) 23476/2013) in the name of Thulasidharan Pilla, a citizen holding below-poverty-line-ration-card, and Nazarudeen K.M, the Secretary of the Auditorium Owners Association, on a budget of Rs.15,000/-.

Rest is a recorded history. On 26th August 2014, Mangalya Nidhi Cess was declared unconstitutional by Justice K. Vinod Chandran. Section 11 of Kerala Finance Act, 2013 was quashed. Here is the copy of the said judgment, and the writ petition, which made me popular in tax litigation.

ഹൈകോടതിയിൽ പുഴയും വെള്ളച്ചാട്ടവും

This happened on April 7th, 2014, when the summer rains lashed the unexpected Kerala High Court.