Obituary

OP. ED.

Justice Protik Prakash Banerjee has certain distinctive nay rare qualities endowed to him by almighty. His love for law students and junior lawyers alike, is well known. Myself is one such beneficial recipient of his magnanimity. In no manner, I read under him physically, but his impact on my sojourn from a law student in University of Delhi to a practitioner in Delhi High Court and my peculiar love for public law, is his influence. I vividly recollect to have first interacted with him in 2012 and thereafter to seek his inputs for my paper on Constitutional morality vis a vis Judiciary-A Requiem for Judicial Accountability. That was pre Manoj Narula era. I was surprised to visualise the academic spark in such a busy practising lawyer. Despite his pressing schedule he has offered his comments and allowed multiple conversations over phone for long time. When, after LL.B., I was in dilemma to join profession or to join LSE for Masters, it was he, who authoritatively told me – not to waste time, if ultimately I have to practice.

  I was chamber junior of Ms. Pinki Anand Senior Advocate in 2014, having earned some confidence, I decided to practice independently. Again, I looked to Protik Da for advice if the time to be “independent” is not premature –given the fact that I am first generation lawyer. It was his confidence in me, which has kindled my spirit. Before I read Fali Nariman’s use of phrase “school of hard knocks” it was Protik Da who told me that bar is cruel place and it kills intellect if you cannot overcome fear for starvation, but life is pleasure if one relishes the struggle in corridors. Quest for briefs is also a part of enriching experiences of life. It is part of 3 Ps “patience, practice and performance” which determines the destiny of  a lawyer. His love for my novice experiences of   Courts in Allahabad and Delhi  brought me closure to him –albeit from a distant place.  Upon his elevation, I congratulated him, I said –probably I was late-if I could have visited Kolkata prior to his elevation, we may have free discussion without shackles of office. He responded in e-mail saying, though protocol binds him but courtesy meetings are not prohibited till I have no matter in his Court. I got chance to visit Calcutta High Court in May 2017 when I was briefed in complicated service matter to argue before Justice Talukdar. The kind of warmth and patient hearing afforded to lawyers and sense of ease with which professional work is conducted in High Court, impressed me. Twilight of happiness -approbation for my submission by Justice Talukdar and ultimately an unconditional stay in termination of professors of Presidency University and above all ceremonial direction to my briefing counsel to make sure that I am at ease in Kolkata and a prescription to me to see other courts. In my subsequent visit to High Court I visited Protik’s Da Court (by the time he was elevated to bench and was sitting in Division Bench  with Justice Datta- as his lordship then was) and later went to his Chamber in High Court. He with his usual smile jokingly said: Anurag –No law only legal realism. His enquiry into nature of cases and  general pattern of my practice ultimately ended in his blessings. He prescribed two books to me-The first edition of Law of Mortgage by Rash Behary Ghose for incisive legal originalism and another was Carl Joachim Friedrich’s Constitutional Reason of State. A teacher in him was always at forefront when he was with his pupil.

    It seems, God is in dearth of noble soul; a Judge was commanded to honour God’s mandamus. His untimely departure has foreclosed the string of jural  development, which he could have brought in. His short stings as Bencher has enriched the branch of public law. My deepest tribute to him. Like many, I have lost a pupil’s Master in true Sense.

* Advocate is practising Lawyer in Supreme Court and Delhi High Court

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Former Supreme Court judge and former Lokayukta of state of Karnataka Justice NG Venkatachala has passed away at the age of 89.

Born in an agriculturist family Mittur, Justice Venkatachala obtained Bachelor of Science and Bachelor of Law degrees from Mysore University. He then got enrolled as an Advocate in the then High Court of Mysore on 16 November 1955. He also served as a part-time reader in Mercantile Law from 1958 to 1970 and a legal adviser to the University of Agricultural Sciences, Hebbal from 1963 to 1973 and Bangalore University from 1970 to 1973.

He served as a Government Pleader and was later promoted to high court government advocate which he served till 1977. He was then appointed as additional judge for Karnataka High Court on 28 November 1977 and a permanent judge on 8 September 1978. He functioned as a tribunal for prevention of unlawful activities under the unlawful activities prevention act during the year 1990. He was appointed as the acting Chief Justice for Karnataka High Court in May, 1992. On 1 July 1992 he was sworn in as Judge of the Supreme Court of India which he remained until Jul2 2, 1995.

Sworn in as the Karnataka Lokayukta on 2 July 2001, Justice Venkatachala was best known for rejuvenating the department of Karnataka Lokayukta, the anti corruption agency. He is said to have put the fear of god in the Karnataka administration. Number of complaints the office of Lokayukta was receiving dramatically increased from 20-25 per day to 200-250 per day while Justice Venkatachala was in tenure.He personally led hundreds of raids often lashing out at corruption in political life. In his four and a half years in office, he had looked into more than 50,000 cases of misconduct and complaints from members of the public. He even drew lot of criticism often from politicians who accused him of tarnishing all politicians with the same brush. He was discontinued as Lokayukta for the second term because of legal hurdles although a huge campaign was done in favor of him. 

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Eminent lawyer and politician Ram Jethmalani has passed away at age of 95. He would have turned 96 next week.

As a lawyer

Born on September 14, 1923, Jethmalani obtained LL.B.degree at the age of 17 and started practising law in his hometown Shikarpur (now in Pakistan). At that time, the minimum age for becoming a lawyer was 21, but a special exception (resulting from an application that he made to the court contesting the rule regarding minimum age) allowed him to become a lawyer at 18. He started his own law firm in Karachi with his friend A.K. Brohi. In February 1948, when riots broke out in Karachi, he fled to India on the advice of his friend Brohi and when he came to India in that day he had only a one paisa coin in his pocket and with that note he stayed in the refugee camp in Mumbai for few days.

Jethmalani fought his very first case at the age of 17 in the court of Sindh, contesting the rule regarding minimum age passed by the bar council of Sindh. His very first case fought in India as a refugee led to quashing of a new law (Bombay refugees act) that had just been passed by the then chief minister Morarji Desai. The law treated refugees badly and in an inhumane manner similar to convicted prisoners, allowing the state to relocate, sequester and question them anytime. Jethmalani filed a case against this at the Bombay high court, asking the law to be declared unconstitutional and won it. He later came to the spot light a decade later with his appearance in the K. M. Nanavati vs. State of Maharashtra case in 1959 with Yeshwant Vishnu Chandrachud, later to become Chief Justice of India.

In 1954, he became a part-time Professor at the Government Law College, Mumbai for both graduate and post graduate studies. He also taught Comparative law at International Law at Wayne State University in Detroit, Michigan.[11] He has also been the Chairman of Bar Council of India for four tenures both before and after the emergency. He was also a member of International Bar Association 1996. He has also been Professor Emeritus at Symbiosis Law School, Pune since 2003.

When in the late 1960’s, Jethmalani defended a string of smugglers, he gained an image as a ‘smuggler’s lawyer’. Unfazed by the criticism, Jethmalani maintained that he was only doing his duty as a lawyer.

He announced his retirement from the legal profession in September, 2017.

He has received prestigious awards like International Jurist Award, World Peace Through Law Award and Human Rights Award instituted by World Peace Through Law.

As a Politician

Jethmalani became a member of Rajya Sabha in 1988. He became The Union Minister of Law, Justice and Company Affairs in 1996 in the Government of India led by Atal Bihari Vajpayee. During the second tenure of Atal Bihari Vajpayee, he was given the portfolio of Union Minister of Urban Affairs and Employment in 1998. But on 13 October 1999 he was again sworn in as the Union Minister for Law, Justice and Company Affairs. However he was asked to resign by the prime minister following differences with the then Chief Justice of India Adarsh Sein Anand and Attorney General of India Soli Sorabjee.

He had also announced his candidature for President of India stating “I owe it to the nation to offer my services” and launched his own political fronts, the Bharat Mukti Morcha, launched as a ‘mass movement’ in 1987 and in 1995 he launched his own political party called Pavitra Hindustan Kazhagam, with a motto to achieve “Transparency in functioning of Indian Democracy”.

In 2012, Jethmalani wrote to then Bhartiya Janata Party (BJP) President Nitin Gadkari, accusing opposition BJP leaders of being “silent against the huge corruption” within the ruling UPA-II government, and stated that BJP “is sick”. Jethmalani’s letter became public on the Internet, and in May 2013, BJP expelled Jethmalani from the party for six years, for having made anti-party statements. In October 2013, defamation charges were framed against BJP seeking ?50 lakh as “null and void and damages” for making a statement that he was not a fit person to be member of the party.

Exile in Canada

During the emergency period of 1975–1977, Jethmalani was the chairman of the Bar Association of India. He heavily criticised the then Prime Minister of India, Indira Gandhi. An arrest warrant was issued against him from Kerala. It was stayed by the Bombay High Court when over 300 lawyers led by Nani Palkhivala appeared for him. However the stay was nullified by the habeas corpus judgment Additional District Magistrate of Jabalpur v. Shiv Kant Shukla and Ram Jethmalani exiled himself in Canada carrying on his campaign against the emergency. He returned 10 months later after the emergency was lifted.

Defence of High-Profile case

He has several high-profile defence cases to his credit as a lawyer. Some of them are listed below:

  • Defence of Rajiv Gandhi’s killers in Madras High Court in 2011
  • Defended Indira Gandhi’s killers, and challenged the medical evidence (PMR) given by T D Dogra on Indira Gandhi.[28]
  • Harshad Mehta ans Ketan Mehta’s defence in stock market scam
  • Underworld don Haji Mastan
  • L K Advani’s defence in Hawala scandal
  • Manu Sharma’s defence in Jessica Lall murder case
  • Amit Shah’s defence in Sohrabuddin fake encounter case.
  • Amit Jogi’s defence in the case of Jaggi murder
  • Sanjay Chandra bail in Supreme Court in 2G case
  • Kulbhushan Parashar Bail in Navy War Room leak case
  • Kanimozhi’s defence in 2G spectrum case
  • S. Jaganmohan Reddy’s special leave petition on stay for CBI probe on money laundering in his companies
  • Yeddyurappa’s case on illegal mining scam[29]
  • Perarivalan, T Suthendraraja alias Santhan and Sriharan alias Murugan – convicted in the Rajiv Gandhi assassination case
  • Baba Ramdev’s defence on use of force on the followers of Baba Ramdev at Ramlila grounds on 4 June 2011
  • Shiv Sena’s defence in CPI MLA Krishna Desai murder case
  • Asaram Bapu’s defence in Jodhpur sexual assault case
  • Lalu Prasad Yadav’s defence in The Supreme Court of India bail was convicted in the fodder scam case on 13 December 2013.
  • Subrata Roy in Sahara-SEBI case
  • AIADMK leader Jayalalithaa, who had been convicted in the disproportionate assets case, in the Karnataka High Court
  • Arvind Kejriwal in defamation case filed by Arun Jaitley
OP. ED.

Writing a few lines in the memory of Dr. Avtar Singh who passed away on October 1, 2018 is more like performing a pious obligation towards the elder—teacher, guide and friend. The urge to write these lines arises not because “Doctor Sahib” (as he was popularly known in the Lucknow University) was engaged in any position of power in the Law Faculty or the Lucknow University administration, but out of sheer affection and reverence for the person less understood in the place which he served from 1957 to 1993.

My first introduction with Dr. Avtar Singh was as a teacher of Contract Law in the LL.B. first year way back in 1958. In a short time Dr. Avtar Singh earned our awe and admiration for his lucid classroom teaching in the subject. He explained the basic elements of contract law in simple and explicit terms. In order to ensure thorough learning of each topic, he believed in repeating the gist of the last lesson before starting the class the next day. We were fortunate to have Dr. Avtar Singh as the Company Law teacher in the second year class as well (those days LL.B. was a two year course). During the examinations we relied upon Dr. Avtar Singh’s Contract and Company Law textbooks, which stood out for their lucid language, apt examples and appropriate case law discussion. By the time I completed the two year LL.M. course in 1962, Dr. Avtar Singh had already become a friend and guide for most of the LL.M. students, particularly those like me who did not have stronger contacts in the Faculty. Since Dr. Avtar Singh preferred to spend most of his time, apart from the classroom, in the library, and so we had to go to the teachers’ cubicals in the library whenever some need arose.

Those days one got a teaching assignment soon after passing LL.M., but for me after the retirement of my father the urgency was greater. On the advice of Dr. Avtar Singh I ventured to apply for a lecturer’s post at the Jabalpur University and on being selected Dr. Avtar Singh made me see reason in leaving my parent institution and home to take up a job in a strange city, some six hundred miles away. Dr. Avtar Singh always advised that going out gives an opportunity to prove oneself. My stay in Jabalpur from 1962 to 1970 was a great learning and confidence building exercise. But I had a strong desire to return back to the roots and so returned in 1970 to set up legal practice in Lucknow.

On one of my visits to the Lucknow Law Faculty, Dr. Avtar Singh prevailed upon me to accompany him to Eastern Book Company at Lalbagh. Before introducing me to the elder and younger Malik brothers and the two young sons, Dr. Avtar Singh explained to me the nature of the job that I was expected to do. Since the work of preparing headnotes for the Supreme Court Cases and the Digests would afford me an opportunity to go through the latest judicial decisions of my interest, I readily agreed with Dr. Avtar Singh’s mission. I feel extremely grateful for his being a visionary contact person between me and the Eastern Book Company family that has stood by me in more than one way.

Unfortunately 1970 stay in Lucknow was short-lived and upon my return to teaching in Delhi University in 1971, I almost lost contact with Dr. Avtar Singh. I did learn from my commercial law colleagues in Delhi and outside that Dr. Avtar Singh continued to pursue his academic journey uninterruptedly.

Dr. Avtar Singh produced classic textbooks in English and Hindi language on Company Law, Contract Law, Partnership Law, Law of Sale of Goods and Hire Purchase, Competition Law, Law of Arbitration, Conciliation & Alternative Dispute Resolution, Business Law, Law of Carriage (Air, Land and Sea), Banking and Negotiable Instruments, Intellectual Property Law, Law of Consumer Protection and Law of Insurance for Eastern Book Company, but also wrote on the Law of Evidence and Law of Tort for other publishing houses. Dr. Avtar Singh’s unique ability of putting in simple words most complicated legal propositions has become the hallmark of his textbook writing. The spectrum of commercial laws unravelled in the simplest ways has enormously enhanced the readership of his books not only to graduates and postgraduate law students from all over the country, but also to management, chartered accountancy and company secretary students. As a recognition of his scholarship the IIM Lucknow had conferred Visiting Professorship in Business Law. Dr. Avtar Singh’s ability to produce quality legal material in Hindi language was recognised by the U.P. Government by conferring the prestigious Vidya Bhushan Samman and Saraswati Samman.

It was amazing to see Dr. Avtar Singh’s ability to produce one masterpiece work after another and their repeated editions constantly for almost six decades. Till the last few months of his life he remained pre-occupied with the task of the up-dation of his books. In him we could have the vision of a true academic Yogi. He displayed this kind of energy for work despite an adverse environment in the Law Faculty, where his teaching excellence and legal scholarship always remained under-recognised (his retirement as a Reader in 2003 is a stark testimony to the fact of under-recognition).

Therefore, when I returned back to Lucknow for the second time in 1992, as a Professor in the Faculty of Law, I had the fortune of being privy to a very touching incident relating to Dr. Avtar Singh’s promotion as a Professor of Law in the Faculty. The then Vice-Chancellor Prof. Hari Krishana Awasthi was kind enough to call me to his residence and shared his heartfelt desire to promote Dr. Avtar Singh, who had been given a raw deal so far. Professor Awasthi wanted to know whether as being the only selected Professor (those days there was a dispute between promoted and selected Professors) in the Faculty, I would have any objection in the promotion proposal. My instant reply was: “as his one-time student, I would be the happiest person if that could happen”. But the events in the University made it difficult for Professor Awasthi to secure Dr. Avtar Singh’s elevation before his retirement. This way the Lucknow University missed the opportunity of collective atonement to Dr. Avtar Singh. As the Dean of the Faculty, I could only organise a grand farewell on the eve of Dr. Avtar Singh’s retirement in April 1993. Dr. Avtar Singh had already known about my firm stand against those who had been arguing that the Lucknow Law Faculty had no tradition of a farewell function. I faintly remember Dr. Avtar Singh’s observation in his farewell speech: “Even the ‘most powerful’ have to face defeat at the hands of the ‘most wise’.”

Today, when hosts of law students, teachers and scholars stand to benefit from the knowledge gained from the vast range of text books of Dr. Avtar Singh, we can confidentally say that at the end that: ‘wisdom has indeed prevailed’.

 

† Prof. B.B. Pande, Former Professor of Law and Professor In-charge CLC, University of Delhi (1971-2005), Former Professor of Law and Dean Faculty of Law, Lucknow University (1992-95), Consultant (Research) and Human Rights Chair Professor, National Human Rights Commission, New Delhi (2005-2009), Criminal Law Chair Professor, National Law University, Delhi (2014-2017), Distinguished Professor, National Law University, Delhi.

OP. ED.

In the last three decades, a time the Supreme Court of India has widely been seen as a Court that governs almost as often as it decides, Tehmtan Andhyarujina unfailingly held a mirror up to it. A self-professed judicial conservative, Andhyarujina argued to limit judicial power and bolster parliamentary sovereignty in several constitutional cases. This was not because he felt Parliament to be in some sense better functioning than the Court. In fact, far from it. In a lecture at the University of Oxford in 2012, he lamented about disruptions that had crippled Parliament; in the same lecture he extolled the virtues of Indian law and its courts. Instead, he believed in parliamentary sovereignty because the Constitution demanded it. And Andhyarujina was a true servant of the Constitution.

His reading of the Constitution was undoubtedly shaped by H.M. Seervai, in whose chambers Andhyarujina started out as a junior lawyer. Seervai appeared for the State in Kesavananda[1] and argued that the Court had no power to strike down an amendment to the Constitution for violating the basic structure. Andhyarujina, present in the Supreme Court for the 66 days during which Kesavananda[1] was heard, meticulously recorded Seervai’s arguments and also astutely observed courtroom proceedings—the questions posed by the Judges, their ideological inclinations, the master stratagems of Nani Palkhivala, the lead counsel for the petitioner and the murky politics that was being waged under the veneer of a civil judicial proceeding.

His book, titled The Kesavananda Bharati Case: The Untold Story of Struggle for Supremacy by Supreme Court and Parliament (2012) is a masterful work filled with personal reminiscences of those 66 days. It is a combination of rare personal insight pressed into the service of larger constitutional arguments. For example, Justice Dwivedi, one of the six dissenting Judges, Andhyarujina writes, said during the proceedings in open court that if the petitioners conceded that the fundamental right to property could be amended he would be “prepared to procure from Parliament that all other fundamental rights can be left unamended” (p. 24). Justice Dwivedi was by no means the only Judge who appeared to have a predetermined agenda (in his case, a pro-Government one) during the hearings. Justice Hegde, one of the majority Judges, gave such short shrift to Seervai’s arguments, that Seervai contemplated never appearing before the Supreme Court again (p. 23). The larger point is not lost on any reader—that while Kesavananda1 might represent the zenith of Indian constitutional law, underneath the lofty statements of law creating the basic structure of the Constitution, lay a deeply political Court locked in battle with Parliament.

For Andhyarujina, the resolution of such a battle lay in the text of the Constitution. As Advocate General of Maharashtra, he argued to save the constitutionality of several legislations passed by the State of Maharashtra by urging the Court to read provisions of law with due deference to the legislature. Notable is his defence of the Explanation to Section 2(26) of the Bombay Sales Tax Act, 1959 inserted by way of amendment in 1988. This provision excluded goods held by trademark and patent-holders from the purview of “resale” thereby not allowing the value of such goods to be deducted when sales tax is to be computed. Andhyarujina successfully argued that this provision was in pith and substance on sales tax and had no effect of freedom of trade and commerce[2]. In the Supreme Court, in Aruna Ramachandra Shanbaug[3] he urged the Court to recognise passive euthanasia for persons in permanent vegetative state as legal, with certain safeguards. This too was based on his view that the right to life in Article 21 of the Constitution meant a life with dignity, something that a person in a permanent vegetative state did not possess.

But it was in the leading constitutional cases of the day that Andhyarujina shone, not necessarily because he always emerged victorious, but more importantly because he always spoke truth to power. In I.R. Coelho[4], he argued to save the constitutionality of the Ninth Schedule to the Constitution which immunised statutes from judicial review; in Supreme Court Advocates-on-Record Assn.[5], he argued that a concern for judicial independence could not extend to striking down a perfectly reasonable constitutional amendment only because judicial primacy in appointment of Judges was not as secure as it was in the collegium system. Educated in the finest traditions of English constitutional law, Andhyarujina believed in parliamentary sovereignty and fought till the end to protect it from what he saw as the “path of deviation” on which the Supreme Court had set itself through its activism[6]. This was not intended to berate the Court, but instead to guide it in a direction as the Constitution, in Andhyarujina’s view, demanded.

I must end on a personal note. I was privileged to know Mr Andhyarujina in the last ten years of his life. He gently advised me to reconsider returning to India from the United Kingdom as in his view, the Supreme Court was overrun by “piddly” matters; to make good his advice he examined my doctoral thesis at the University of Oxford, hoping perhaps that his advice and comments might make me remain there. However, when I did return, we spent some wonderful evenings on his Hauz Khas Enclave terrace arguing about the Constitution, sparring over the influence of the common law on the Indian legal system, and debating whether the basic structure doctrine was legitimate. True to my republican faith, I staunchly argued against it; a lawyer to the end, Mr Andhyarujina, with that familiar twinkle in his eye, respectfully demurred.

_________

[T.M. Andhyarujina, Senior Advocate, Supreme Court of India, former Solicitor General of India, Advocate General of Maharashtra and an esteemed member of the SCC Editorial Board, died on 28-3-2017. He was 83.]

   [1]  Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225

   [2]  Federation of Associations of Maharashtra v. State of Maharashtra, 1994 SCC OnLine Bom 750

   [3]  Aruna Ramachandra Shanbaug v. Union of India, (2011) 15 SCC 480

   [4]  I.R. Coelho v. State of T.N., (2007) 2 SCC 1

   [5]  Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1

  [6]  T.R. Andhyarujina, “The Unique Judicial Activism of the Supreme Court of India”, (2014) 130 Law Quarterly Review 53