A GUIDE TO THE JUDICIARY – TO THE BAR AND THE BENCH

Centuries ago the following poem was written in Telugu

“ Vaasana Leni Puvvu
Budhavargamu Leni Purambu
Bhakthi Viswasamu Leni Bharya
Gunavanthudu Gani Kumarudun
Sadabhyasamu Leni Vidya
Grasamu Leni Kolvu
Koragaanivi Pimmaya Singadheemani”

A rough translation of the poem reads:
“ A flower with out fragrance
A township devoid of elders
A disloyal wife
A prodigal son
A study without dedication
A job with out pay
Are all useless, O King”

As per the 2-nd line in the poem, a township devoid of intellectuals and elders (Budhavargamu) will not prosper, though the third line may be criticised as male chauvinism and may be ignored. In the present day society, it may be stated without exaggeration that such community of elders and intellectuals is the judiciary itself. The judiciary is entrusted with vast powers, which could be the envy of any other branch of the State.. This is true in spite of its lack of direct control over the sword and the purse. It decides over the civil rights and liabilities of individuals, fixes criminal liability by determining who should be sent to jail and who should be set free on bail, who should be acquitted honourably and who should be hanged by the neck till death. The judiciary arbitrates between the individuals and the state, between one state government and another and also between the union and the states. It not only acts as a check on the excesses of the Executive but also of the Legislature by striking down its laws if found to be unconstitutional. It can even set aside the prime minister’s election on sufficient grounds. After Nawaz Sharif’s case in Pakistan [year 1991 -before the coup by Musharaff] it is evident that from the peon to the Prime Minister, citizens can move the court to get back their jobs when they are fired unjustly. The political Executive, which normally detests judicial interference in Executive Prerogative, would not mind approaching the Judiciary when its government is dismissed arbitrarily by the President or the Governors. The recent developments in Pakisthan have demonstrated that even the Parliamenti. e., the National Assembly and the aspirants for Prime Ministership, are eager to establish an independent judiciary, as it is indispensable for democracy to survive.

There is a mistaken impression, especially in the subordinate judiciary, that the term ‘court’ refers to judges and judicial officers alone, while the fact is that the Bar is equally a part of the court. The term ‘court’ refers to the professional body of legal experts, comprising of lawyers and judges and also includes witnesses. Advocates are deemed to be officers of the court while the judges are the presiding officers. As per the law of Contempt, just as a lawyer who insults a judge in the court hall would be guilty of contempt of court, a judge who ill treats a lawyer in the court room would equally commit contempt (A.I.R. 1949 Lahore page-270). In the said decision of the Lahore High court, a Magistrate called a lawyer, “ You fool” and upon a contempt petition the magistrate was found guilty of contempt and sentenced to undergo imprisonment.

Though Advocates are the officers of the court, they are not vested with powers of any kind. They are compensated with adequate privileges. They can espouse others` causes ranging from those in the munsif court to those in the Supreme Court, act independently and earn as much money and goodwill of the community as their capacities and opportunities allow. These privileges are denied to the judges who have to function with in the hierarchy and be satisfied with the pay packet from the government; but they are vested with formal authority to pronounce orders and decrees and pass sentences that are to be scrupulously enforced through the coercive power of the state. Advocates are like rival players in a match. They are like boxers in the ring. They have to train very hard, with a sense of dedication, so that they may perform well in the boxing ring, which is the court hall. They bear the brunt of the blows, in the form of stress and heart attacks. When they succeed they earn name, fame and money – plenty of it. Top lawyers in the U.S own private jets like Boeing 737. Mr.Kapil Sibal, a top Supreme Court advocate and at present a Union Minister, spurned a career in the coveted I.A.S to join the legal profession. However, while a boxer wins or loses purely on his own strength or weakness, a lawyer’s victory or defeat is mostly and rightly dependent upon the inherent strength or weakness of his client`s case. In this respect he is like a diamond cutter. One needs an expert to differentiate a diamond from a cheap stone. Later, even a diamond has to be cut and polished properly so that it may shine. A lawyer is consulted to know whether the case is legally a good one (a diamond) or a bad one (a cheap stone) and if he perceives it as a good one, he has to cut it properly ( in the form of precise pleadings ), polish it with his skilled and eloquent arguments and tell the judge to certify that his is a real diamond and the opponent possesses a cheap stone. A lawyer cannot and ought not to change a bad case into a good case, just as a stone cannot be turned into a diamond; but he might mistake a cheap stone for a diamond or damage a diamond into pieces by inefficient cutting, unless he is competent and skilled sufficiently.

The judges in the adversary system mostly are and always ought to be, like the the referees. The litigant public would have already played the game in accordance with the substantive law, before they approach the court, and start playing the game in accordance with the procedural law, after they enter the court, as per the directions of their lawyers. The word “game” is used here not in a trivial sense, but to signify any serious social activity, carried on and judged by applying predetermined rules. Unless the referee formally declares a match to have been concluded, the match is deemed to be pending. Likewise unless the judge pronounces judgement declaring that one of the parties has won and the other has lost, the dispute is deemed to be pending. It is important to note that because the litigating party, usually fighting through an advocate, wins, the judge formally declares that he has won. The judge cannot assume that because he declares who the victor is the party becomes a victor. Victory or defeat is a fait accompli to be formally certified by the judge. When there is rule of law, the citizen has a “leave to live without anyone’s leave” This is the only known way to empower a citizen to be a master of his own life. ‘In a true democracy, there is no 'central' government away from citizens. Citizen is the centre. There are only closer or farther governments; smaller or larger units. The federal government is the most peripheral government. There are no hierarchies. Power flows from the citizen in ever-enlarging concentric circles.’ Jayaprakash Narayan. Of Lok Satta.

In any game, players can improve their standard if they are enabled to know the rules of the game in advance and are free to concentrate on the game instead of being at the mercy of the referee. Similarly, if judges faithfully enforce the law which is declared in advance, citizens can plan their transactions in advance in accordance with the law and can be sure to enforce them when they are challenged by the wrong doers, without being at the mercy of any bureaucrat or judge. In an ideal society, what you know should count and not whom you know.

This is more so in an adversarial system of justice such as ours. Suppose there is a plane crash and a High court or Supreme Court judge is appointed under the Commissions of Enquiry Act to enquire into the incident and fix the blame. As the head of the commission the judge would adopt the inquisitorial approach and play an active role in the inquiry. There also he will be assisted by lawyers, who play only a subordinate role. Because of the inquisitiveness displayed by the judge in the inquisitorial system, his conclusions cannot be as impartial as those of a judge in the adversarial process. An inquisitorial judge is like a policeman entrusted with the task of catching a thief. Some times he may succeed in catching the real thief, but if he fails, fearing public criticism or superior’s wrath, he may catch hold of some innocent passer-by, on the slightest suspicion, and call him a thief and thus get himself relieved of the’ performance pressure’. With out the performance pressure, (with due apology for this expression) the policeman will not take sufficient interest in the investigation . At the same time, on account of the performance pressure, his assessment may be either tainted or even cooked up. He can therefore only launch a prosecution in a court of law. This performance pressure will not be there on a judge in the adversarial process. In other words, he would have no stake in the claim. That is why even a High court or Supreme court judge, while heading a commission, only submits a report after the inquiry and does not pass JUDGEMENT straight –a-way. On the basis of the report, prosecution can be launched before the magistrate or sessions judge, who adopt the adversarial approach and ultimately pass judgement. The report of the commission will not bind the magistrate , though it is of a supreme court judge. In fact the term ‘judge ’indicates a person who simply judges but does not investigate or prosecute, much-less defend any body. . The task of a judge in a law court in the adversary system is not to discover the truth himself, but to decide whether the allegations made by the complainant or the plaintiff are supported by legally acceptable evidence. That is why the Evidence Act places the onus of proof on the parties and not on the court. The lawyers, who are also officers of the court , take care of the inquisitorial aspect by actively advising their clients on what documents are to be summoned ,who should be examined as witnesses and on what aspects , in the adversarial system. Advocates play a dominant role in the adversary system Lawyers are expected to pre-judge cases on the basis of bona fide instructions given by their respective clients. The judge ultimately judges which of the two opposing pre-judgements of lawyers is more tenable, on the basis of evidence. If two appearing lawyers come to the same conclusions in all cases , judges will be unemployed . Lawyers are under constant performance pressures, like trying to earn the minimum amount of money to survive, by filing or defending a minimum number of cases and once they pre-judge a case and promise a certain relief to their clients they are under a performance pressure to prove that their pre-judgement was correct. With out these pressures of performance, lawyers would become passive and slothful and will not take active interest in understanding the cases by reading old and moth eaten documents, dusty law books , reports and making out a presentable case. Supposing the government promises certain fixed remuneration to all lawyers and prohibits them from practicing privately, the entire legal profession barring some exceptionally motivated individuals, would become docile, complacent by the fact that they would any way get the fixed amount and discouraged by the fact that their better performance will not get better reward . No doubt, lawyers in India and in the U.K.(unlike in America) are prohibited from charging fees contingent on the result of the litigation. But still if a lawyer is reckless in his prejudgments, accepts bad cases and constantly loses, his practice will suffer a set back.

Because of the above pressures of performance, lawyers` perceptions are likely to suffer from partiality. Therefore they are not vested with formal authority to pass judgements. Usually, [subject to some laudable exceptions] some of the lawyers who are averse to facing the uncertainties and the rough and tumble of the profession, are picked up, stripped of the privilege of private practice, relieved of performance pressures [barring the pressure to meet the quota by disposing off certain minimum number of cases] by promising a regular salary and vested with formal authority to pronounce judgements and thus judges are born. A judge is a third lawyer, who is paid by the State instead of the contestants, so that he may be totally unbiased. The term ‘Nyaya moorthi `’is not the equivalent of the term ‘judge’ and the more appropriate term would be ‘Nirnetha’. Because the majority of Indians being Hindus, are accustomed to idol worship, we seem to have coined the term nyayamoorthi and some of the judges in turn started to think that advocates are ‘Pujaris’ [priests] to placate by reciting verses in the form of arguments and secure relief .In the opinion of Bertrand Russell self-debasement before authority is a particularly oriental trait. Self-debasement is not a virtue.

Whether the boxer is a Mike Tyson or a Mohammad Ali, he has to be subject to the control of the referee as long as he is in the ring. Even if Mr. Palkhivala, the eminent jurist, appears before the Munsif court, he has to subject himself to the control of the presiding officer so long as he is in the court hall. That does not mean that the young munsif of that court is superior to Mr. Palkhivala either in knowledge, experience, age or popularity. A judge need not have illusions that he alone is the fountain head of justice and the advocates are only to second fiddle, to please him some how and secure the relief.

In a boxing match, the referee is empowered to count for a certain number of seconds and if one of the boxers who falls down, does not get up with in that time, the referee can declare the other boxer as the victor. Likewise, if a defendant is absent on the date of trial, the presiding officer can pass judgement exparte. A boxer , who aspires to win on account of default of his rival, must fulfil certain minimum requirements like boxing gloves, shoes etc. If he comes t o the ring bare footed or bare handed, he cannot hope to win even if the opponent does not get ready to fight. Likewise, in deciding certain disputes like those under the Eviction Control Act, the court cannot order eviction unless the grounds for eviction exist, even if the respondent remains ex parte or even gives consent. (A.I., R.1978 S.C. page-22). Lawton L.J. describes the judges role very graphically, “I can blow my judicial whistle when the ball goes out of play; but when the game restarts, I must neither take part in it, nor tell the players how to play.”

Just as lawyers disagree, judges also disagree in multi judge benches and in that event, the opinion of the majority is considered to be binding and the view of the minority judges has no better value than the argument of the lawyer who advanced that argument. The situation may be reversed if a larger bench reviews and reverses its former decision as it recently happened in the case pertaining to transfer of High Court judges.( This article was written in 1993).

For a smooth and efficient functioning of the judiciary the Bench and the Bar must have confidence in each other, so that they may pull on together. Unfortunately during the last decade, instances of friction between the Bar and the Bench have increased, , not only in the munsiff court but also at the level of the Supreme court. Even some judges of the Supreme Court have openly declared that twenty percent of the judicial officers are corrupt. For this sorry state of affairs, both the bench and the bar must take the blame. The reasons for the tussle become clear if we make the following analysis.

TYPES OF ADVOCATES

TYPE’A’

Advocates of this type are honest to the core in their practice. They accept cases which need canvassing what they think to be tenable propositions, concede that they have no case when they subsequently discover it to be so, do not tolerate the corruption of the judge and make sure to complain to higher authorities when they discover that a judge is corrupt. In the code of professional conduct prescribed by the Bar council of India, the very first rule says;

“ An advocate shall, during the presentation of his case and while otherwise acting before a court, conduct himself with dignity and self respect. He shall not be servile and whenever there is proper ground for serious complaint against a judicial officer, it shall be his right and duty to submit his grievance to proper authorities”. Such proper authority is the High Court,[through the principal district judge] if the complaint is against a judge of the subordinate judiciary and fifty Rajya Sabha M.Ps or hundred Lok Sabha M.Ps if the complaint is against a judge of the High Court or the Supreme Court, under the Judges Inquiry Act. . It was the tireless effort of Advocate Ram Jethmalani, which brought the impeachment motion against Justice Ramaswamy of the Supreme Court for consideration before the Parliament. As very few advocates have the determination and perseverance of Mr.Ram Jethmalani and the Committee for Judicial Accountability, of which he is a member, the Hon!ble Supreme Court has made the task easier now, by laying down the law in C.Ravindhandran Iyer Vs.Justice A.M.Bhattarcharjee and others [1995-3 ALD 25], that if the grievance is against a judge of the High Court, it may be brought to the notice of the Chief Justice of the said High Court and if the grievance is against the Chief Justice of the High Court, to the C.J of India. As observed by the hon`ble Supreme Court in S.P.Gupta and others vs.President of India, judges are circumscribed by the expectations of neutrality and impartiality and by the traditions of the legal profession which is always keeping a watchful eye on every action of a judge [AIR 1982 S.C.149]

Such advocates will not rest content by talking about instances of corruption in a hush-hush manner in canteens and lawyer’s chambers. When the clients hint at the question of purchasing justice, such lawyers refuse to do it themselves and also prohibit their clients from doing so. Rule-4 of the code of conduct of the Bar council, is as follows;

“ An advocate shall use his best efforts to restrain and prevent his client from resorting to sharp practices or doing anything in relation to the court, opposing counsels or parties, which the advocate himself ought not to do. An advocate shall refuse to represent the client who persists in such improper conduct. He shall not consider himself a mere mouth piece of the client and shall exercise his own judgement “.

They accept that fighting corrupt judges is a professional hazard of advocacy, just as a soldier or policeman faces the risk of getting hurt in an encounter.

At the same time, advocates of type ’A’ do not rashly accuse the judge of prejudice or corruption just because the latter has held against their clients. They are conscious of the fact that Truth is relative to the observer and the judge might have honestly believed the opposite version. While judging the judge, they give the benefit of the doubt wherever possible.

All advocates must try to be of Type ‘A’.

TYPE’B’.

These advocates are also honest and no doubt dislike corruption, but when the client tells them that the judge is corrupt or can be influenced, these advocates look the other way and pretend as if they do not know anything about it. They tell their clients that the judge might be tackled by them without involving the advocates in the deal. They are reluctant to complain to higher authorities against a corrupt judge though they are enjoined to complain as per the code of conduct prescribed to them. They doubt whether their colleagues would support them in such ventures. They are afraid that if the judge comes to know about such ventures, he might single them out for harassment of all kinds. They are also afraid that the higher authorities may not take the complaint seriously. They are also scared that their clients might desert them for being unduly strict and honest and not ‘ practical’. Meekness, it is said, is the first law of economic survival.

Type `B` behaviour of advocates in India appears to have started in the later fifties and early sixties and it is this behaviour that contributed to the decline in the standards in the subsequent decades.

Some out of the above kind have also a weakness of grumbling secretly [often without any justification] that the judge is corrupt whenever their client loses the case, of course in a muffled tone.

TYPE `C`

These advocates do not bother about corruption. If the judge is corrupt, such advocates tell their clients that justice can be bought at a price and they would arrange the deal for a commission. Though as per the code of conduct an advocate shall not canvass for work, advocates of this nature freely do so. They try to build personal rapport with the judges. They also frequent police stations to gather work. The hon`ble Supreme Court laid down in Delhi Judicial Services Association Vs. State of Gujarath [AIR 1991 S,C, 2176] that no judicial officer shall visit a police station except on official work [which never arises] and that too with prior intimation to the district judge. Advocates also are officers of the court and they should not demean themselves by visiting police stations The Advocates Act mandates that an advocate should appear only before those authorities who are authorised to record evidence on oath.. Though in some countries like the U.S a citizen can insist upon the presence of an attorney at the time of interrogation, such visit is in a supervisory capacity and not for the purpose of pleading or lobbying with the police. Type `C` advocates do not bother about these niceties. They also strike deals with managers of nationalized banks to become their panel advocates, go after politicians in power and expected to come to power and cringe before tycoons, without bothering about the prestige of the profession. They can also be easily gained over by the opposite side. No wonder, the general image of the profession has suffered on account of such black-coated brokers. This prompted Mr.Justice Venkatachalaiah, the ex-C.J of India to bemoan-“We need profound men- not prominent men”

TYPE `D`

Advocates of this type are worse than the earlier type. Even though the judge is honest, taking advantage of the gullibility of the litigant public, these advocates collect money from the litigants in the name of the judge and swallow the same. Though the judge might be honest, his image suffers because of such advocates

TYPES OF JUDGES

TYPE `A`

These judges are honest to the core. They are not influenced by monetary, caste, communal, moral or any other extraneous considerations. They do not allow their personals opinions and values to influence their professional conclusions. They are aware that a judge should interpret the law as it is and not as it ought to be. When Mahatma Gandhi was tried for sedition, the judge applied the law as it stood and convicted him though he had great respect for Gandhiji and wrote in his judgement that if His Majesty`s Government chose to reduce the sentence, he would be the happiest person to know about it.

When a counsel cites a decision of the High Court or Supreme Court, these judges scrupulously follow the ratio irrespective of their personal opinion and thus maintain judicial discipline. They cannot be stamped as pro or anti somebody, such as pro decree holder, pro judgement debtor, pro or anti husbands or wives in maintenance or divorce cases, etc. They also speed up trials dexterously and pronounce judgements within a reasonable time and do not make parties and advocates to keep guessing for months or years. When a new point of law or fact, not argued by either of the counsel, strikes their mind, they suo moto reopen the arguments, hear the counsel on those points and then decide the issue. They discuss all-important points raised by counsel with sufficient detail and clarity. “ THE SATISFACTION THAT REASONED JUDGMENT GIVES TO THE LOOSING PARTY OR HIS LAWYER IS THE TEST OF A GOOD JUDGMENT -.” Hindustan times vs.Union of India 1998-2 SCC 242 extracted in 2004 AILD JOURNAL 116. They are conscious of the position that if a judge does not discuss all the points of law and fact raised by a counsel in his arguments, the judge is guilty of professional misconduct, liable for disciplinary action, as laid down clearly in a recent decision of the A.P.High Court reported in 2003-2 ALD 926. Also 2004-3 ALD 874

All judges must try to be of type `A`.

TYPE `B`

These judges are honest in the sense that they do not accept bribes nor are they actuated by any selfish motive, but they have a tendency to put their personal notions of justice into their judgments. They deviate from the law to help a party who they think has morally a better case. They fancy themselves to be `equity judges` not bound by the shackles of law, forgetting the maxim that equity or `dharma` or `nyaya` follows the law and cannot override it. For instance a plaintiff files a suit for declaration of title over immovable property worth more than a hundred rupees on the basis of an oral sale or unregistered and unstamped arbitration award, effecting division of property. The defendant, having factually sold the property by receiving the entire sale consideration or having participated in the arbitration proceedings, wants to immorally deny the plaintiff’s title. Here, the advocate for the defendant would naturally predict that the defendant would succeed in the suit not withstanding his immoral conduct because of the important legal defect of want of stamp duty and registration of sale deed or award in view of S.49 of Registration Act, which declares that unregistered documents shall not create or extinguish title to immovable property. The advocate and the judge are not concerned only with moral aspects of the case, as it is not a court of equity or `dharma` or `nyaya` alone, but a court of law. Even the Supreme Court cannot ignore the law on equitable grounds [2003 SUPREME COURT WEEKLY 294] Here, judges of type `B` disregard the law and hold in favour of the plaintiff who, they think has morally a better case. This is nothing short of lawlessness in a court of law. This could naturally irritate the defendant’s advocate whose pre-judgement to his client was falsified on account of the vagaries of the judge. It is somewhat like a referee applying the rules of basketball to a football match. In the former, the ball shall not be touched with the legs while in the latter it is the opposite. Even Mara Dona the great foot ball champion, could be in for a nasty surprise to find that his team was declared as the loser, by a referee who applied the rules of basket ball to a foot ball match as the referee had a fancy for basketball and a contempt for foot ball. Such judges fail to realize that the society needs the rule of law and not rule of judges. The Indian farmer gambles in monsoon; the Indian lawyer gambles on the psychology of the judge.

It is not suggested that equity or `dharma` or `nyaya` or the voice of conscience has no place at all in a law court. Only when there are gaps in law, equity or `dharma` or `nyaya` can be brought in to fill them up [2003 SUPREME COURT WEEKLY 1561] A crash course on the maxims of equity should enable such judges to develop a proper perspective. [See appendix-I for maxims of equity]. They should realize that when they enjoy powers to exercise judgment over fellow mortals as conferred upon them by law, they must also be bound by the limitation imposed by law. They cannot say, “We shall have the powers but shall not be bound by the limitations`”.]. They also get prejudiced by hearing representations on pending matters outside the court premises, in the absence of the opponent, reasoning that after all, there is nothing wrong in hearing the `true` version instead of the manufactured version put forth in the courts. In America, such representations are termed as exparte representations and are strictly prohibited.

Similarly, when there are clear rulings to the effect that a court sale in excess of the E.P.amount is void, they ignore the ratio and uphold the sales. Such judges do not know that they can be punished for not following the ratio laid down by the superior courts, under the Contempt of Courts Act, as laid down by the Supreme Court [AIR 1972 S.C. 2466] ] A district judge was reprimanded in open court and costs of Rs.300/- were also imposed for his failure to follow the ratio decidendi laid down by the Orissa High. see foot note[1] The Judicial Officers Protection Act does not protect them from contempt proceedings [AIR 1958 PUNAB 472]. A binding precedent cannot be got over by observing that the facts are different 2000 SCW 4272

Such judges also carry certain strong preconceived notions such as that all land acquisition cases involve fraud, or that all decree holders knock away properties cheaply in court sales, etc. They further have wrong notions that in the case of discretionary relief, they enjoy absolute discretion of a despot. They wrongly formulate their own policies, not warranted by law, such as that no ex parte injunctions should be granted, that no anticipatory bail applications should be entertained, bail applications moved for the first time should be dismissed, future interest in money suits should not exceed six per cent per annum even in commercial transactions etc. They forget that discretion of courts should be exercised on sound legal principles and not by “chance or caprice or in temper” [1970-1 A,L,T p.320] There should be a rational nexus between the conduct of the parties, circumstances and the discretionary relief granted , by a proper articulation in the judgement, to enable the advocate concerned to decide whether there is a case for an appeal or review. Judicial discretion is regulated according to known rules of law and not mere whim or caprice of judge –such discretion is usually given on matters of procedure or punishment, or costs of administration rather than with reference to substantive rights 2004 SCW 1385

Some of such judges also deliberately hold against an advocate who has consecutively succeeded in several matters so that the Bar might not accuse the judge of being partial towards that advocate. This will force a good advocate to sufficiently space his cases to avoid being a victim of his own efficiency. They also hesitate to exercise their powers to grant a relief, though convinced about its legitimacy, on the apprehension that it may give rise to suspicion about their bonafides. For instance, after a series of scandals were brought to light in land acquisition cases, even honest judges failed to award due compensation, fearing that any substantial increase in compensation might raise a suspicion about their honesty.

Disadvantages of type `B` judges

In spite of their incorruptibility, the bar hates such judges because advocates would find it impossible to predict the outcome of a dispute in advance and they cannot therefore advise their clients properly. Before an honest and able advocate advises his client to embark upon or avoid litigation, he goes through the legal position as can be gathered from the codified laws and their interpretations by the superior courts which have a binding effect and makes a rough guess or prejudgment about the ultimate outcome of a case. A lawyer reads law books and reports not for pleasure but for the power such reading secures to predict the outcome of cases. He would naturally expect that his prediction must come true. If a judge, though otherwise honest, behaves like a nawab, sulthan or badsha and adopts a different opinion by ignoring the law, it would naturally irritate honest advocates. It also defeats the policy of law.[Appendix to this article contains the reasons why law should prevail over equity or `dharma` or `nyaya`] Litigation becomes unpredictable. People would lose confidence in the opinions of even the best and most honest lawyers, both at the stage of planning their transactions and at the stage of their enforcement through the courts. It will lead to confusion in all circles that need legal help.

1. TYPE `C`

Judges of this type, though stay away from monetary inducements, display casteism from the Bench by favouring advocates or litigants of a particular caste to which they belong. No wonder such behaviour leads to rifts between the Bench and the Bar.

TYPE `D`

Judges of this type are corrupt, but they show a method in their corruption to assuage their guilty conscience. They first honestly come to a conclusion as to who has a better case on merits and then send feelers to such a party to extract bribes or any other consideration, reasoning that they would not have committed any miscarriage of justice by such selective bribery. The bonafides of such judgements would be naturally suspect. Supposing the plaintiff’s advocate discovers that he has no case and after obtaining his client’s consent bondafide concedes in court that the judgment may go in favour of the defendant, the plaintiff will not misunderstand the advocate. But if the plaintiff’s advocate thinks that he can take some bribes from the defendant to concede in court, the plaintiff will naturally suspect the bonafides of his advocate, though the advocate’s not accepting the bribe from the opponent would not have made any material difference to the case. Justice after all must not only be done, but also appear to be done

Similarly such judges take bribes in certain select cases like land acquisition cases or motor vehicles cases where they reason that it is only the government or insurance company that will suffer by such dishonest conduct of the judge.

TYPE `E`

Judges of this type are down right corrupt. They favour those parties who pay the highest price, are easily amenable to all kinds of influences and the less said about them, the better.

ADVOCATES AS SOCIAL ENGINEERS; According to Justice Oliver Wendell Holmes, “ Law is a prediction of what courts will decide”. Just as an electrical engineer designs electrical equipment on the basis of predictable behaviour of electric power[such as that electric current flows from Negative to Positive, that current flows only through certain metals called Conductors, that it does not flow through materials called Insulators, that if current is made to pass through a wire of high resistance, heat is generated and light is emitted, enabling the manufacture of the tungsten filament light bulb, etc] and thereby ensures that the equipment designed by him gives the desired result to the society, an advocate, as a social engineer, designs [drafts] his plaint or written statement or complaint, pieces together the various components in the form of documentary, oral and circumstantial evidence, based on law which is the predictable exercise of judicial power vested with judges. (For instance, in a suit on pronote the judge shall draw a presumption of consideration, in a suit to establish an adoption, the judge shall presume that adoption has taken place when there is a registered deed of adoption, in a prosecution under the Prevention of Food Adulteration Act the judge shall take the report of the Central Food Laboratory as conclusive proof of the quality of the food, the ratio decidendi laid down by the Supreme Court or High Court under whose superintendence the lower court is functioning , is binding and if not followed, the judge could be punished for Contempt, etc) The advocates notice the legal track or tunnel to direct[when the law is clear] or guide[when the law is vague] the judicial mind. Judges` job is to simply energize the thought circuits drawn by the social engineers, by deciding which of the two conflicting devices is in conformity with law. . By `energise` it is meant that the judge decrees that the coercive power of the state through the police and the army, shall back the successful party in the litigation, in enforcing his right.. Severe fluctuations in voltage can ruin costly electrical equipment, though the engineer has designed and manufactured it correctly.. Ayn Rand expressed similar opinion when she observed, “A government should be an impersonal robot with the laws as its only motive power.” In an ideal judicial system judgements should, as far as possible, be the outcome of calculations applying the objective yardstick called law and not on the basis of unpredictable, mystical insight or inspiration of judges. The unpredictability if any, due to the subjective satisfaction of the judge [e.g., whether to grant or refuse bail, whether the uncorroborated testimony of the complainant is enough for a conviction or not] should be minimised and not planned and deliberate.[2] If uncertainty is unavoidable, the citizen should know in advance in which segment of his case there is scope for unpredictability so that he may decide whether to take the risk and proceed with the case or to compromise with the opponent. Judgements become predictable only when judges have type `A` attitude. Even the Supreme Court emphasized the need for predictability in the decision Sundarjas Kanyalal Bharthija v. Collector, Thane [AIR 1990 S.C. 262 AT 267]. According to Mr.Justice Rajendra Babu of the Supreme Court, impartial, timely and predictable judiciaries stimulate investment, efficiency and technological progress [See THE HINDU DT.11-4-04 PAGE 17] T

The author is practising as an advocate since `1981 at the address given above.He has been struggling to keep corruption from the judiciary at Adoni where he is practising. His several other articles were published in law journals in India.

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