HIGHLIGHTS OF `A GUIDE TO THE JUDICIARY`
HIGH LIGHTS OF THE ARTICLE `A GUIDE TO THE JUDICIARY`
1. 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 and thereby ensures that the equipment designed by himwhen predictably energised by electric power 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. Judges job is to simply energize the circuits drawn by the social engineers by deciding which of the two conflicting devices is in conformity with the law
2. .According to Mr.Justice Rajendra Babu of the Supreme Court, impartial, timely and predictable judiciaries stimulate investment, efficiency and technological progress. Just as the heart, by employing muscular force, pumps blood at the right degree of pressure to ensure constant flow of blood throughout the body, the judiciary, by quick and just enforcement of the contracts by employing legal force, is expected to maintain the right velocity and pressure of economic blood flow, of money and other economic assets, from the undeserving to the deserving, the inefficient to the efficient, the dishonest to the honest, the incapable to the capable, the haphazard to the meticulous entrepreneurs, businessmen and other wealth creators and distributors. Just as an inefficient heart results in the ailment called hypotension or low blood pressure, an inefficient judiciary contributes to low level of economic vibrancy and growth.
4. Just as an electrical power transformer in the street corner is secluded by a fence in the interests of the public as well as the transformer, judges, as ultimate social power houses must stay aloof and prevent pilferage of social power. Though judges are not cloistered creatures, leaving them unguarded and unfenced will surely result in pilferage of social power.
5. 6. Judges of the lower courts do not know that they can be punished for not following the ratio decidendi laid down by the superior courts, under the Contempt of Courts Act, as laid down by the Supreme Court [AIR 1972 S.C. 2466]The judicial Officers Protection Act does not protect them from contempt proceedings [AIR 1958 PUNAB 472].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 hall 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.
6. 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 is 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.
7. When there is rule of law, the citizen has a “leave to live without anybody’s leave”
8. In an ideal society, what you know should count and not whom you know.
9. . An inquisitorial judge is like a policeman entrusted with the task of catching a thief. Some times he may succeed in catching the 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’.
10. The term ‘Nyaya moorthi is not the equivalent of the term’ judge’ and the more appropriate term would be ‘Nirnetha’. Because As Indians we 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’ to placate and secure relief. In the opinion of Bertrand Russell self-debasement before authority is a particularly oriental trait. Self-debasement is not a virtue.
11. . 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 contempt for foot ball.
12. “.Type A advocates accept that fighting corrupt judges is an acceptable professional hazard of advocacy, just as a soldier or policeman faces the risk of getting hurt in an encounter.
13. A lawyer reads law books and reports not for pleasure but for the power such reading secures to predict the outcome of cases.
14. The society has a right to expect a fairly clear cut opinion from a lawyer about any case just as it expects a clear-cut opinion from other professionals like engineers (on the question whether a building or a bridge or a dam could be safely built on a particular soil and if so what would be the probable cost) and doctors (as to whether a particular disease is treatable and if so in which hospital and at what cost). A lawyer should be able to say even before filing the case into court whether the case is a good one or a bad one or an arguable one to enable his client to decide whether to file the case, or avoid it or file it by facing the risk of failure. In the United States defence lawyers are able to predict even in criminal cases whether the case will end in a conviction or acquittal and thereby are helping the accused in 98% of the cases to admit the offense and go in for a plea bargain.15. “Conscience per se is an anarchic force, upon which no system of government can be built…clearly conscience does not always declare the will of God, for if it did such diversities would be impossible”---Bertrand Russell.
3. Ayn Rand expressed similar opinion when she observed, “A government should be an impersonal robot with the laws as its only motive power.”
16. “A complex legal system, based on objectively valid principles, is required to make a society free and keep it free- a system that does not depend on the motives, the moral character or intentions of any given official.”Ayn Rand
G.V.DESAI, ADVOCATE ADONI
17..The Indian farmer gambles in monsoon; the Indian lawyer gambles on the psychology of the judge. The younger generation of advocates will be induced to believe that instead of working hard to know the law, it would be better to know the judge and advocates will turn into glorified brokers.About the Author
G.V.DESAI is a practising advocate at Adoni in Kurnool district of Andhra Pradesh, India.
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