Memories of Witnessing a Heated Exchange in the Hon'ble [One Particular] High Court

Shri Protik Prokash Banerjee, Additional Judge, Hon'ble High Court of Judicature at Calcutta, passed away on 03/07/2020, less than a week after this post was first published. He is the 'Counsel' mentioned herein. 

Upon reading this blog post he commented  on Facebook "Anshul! Shades of a man I know, making a submission he was hauled over coals for having made! Besides, the Judge in question is not merely a Chief Justice designate, but he is brilliantly adorning that chair." 

This post is now a fond reminiscience of his memory.

As an Advocate, the best thing that you hope for is an understanding and encouraging judge, who listens to your point patiently and gives a reasonable explanation even if he rejects your argument. The worst thing you can get is a hostile bench bent upon cutting short your sentences and dismissing your plea. However, in between these two extremes, are exchanges which begin reasonably and then, due to one off the cuff remark or another, descend into a hostile exchange. It is at this point that the Advocate has to display his tact, his nerves of steel and his ability to think on his feet so as to salvage the situation and prevent an adverse order being passed against his client. Most importantly, the Advocate must not get intimidated by the bench.

I had the good fortune of witnessing such an exchange first hand. I immediately wrote down the transcript of the exchange upon exiting the court realizing it to be of immense value for my growth as an Advocate. I am sharing it with you, dear reader, in the hope that you too will learn something from it.

ITEM No. 1 - 18th November - Court Room No. 15

In the Court of Hon'ble Justice [Distinguished Personality] 

Dramatis Personae

Counsel 

Mr. XYZ 

Mr. ABC

All three of them Advocates.

Bench = One very prominent Justice of the concerned HC who is now the Chief Justice designate of another very prestigious HC.

Counsel begins to speak.

"Your Lordship will please refer to Section 24(4) and 24(6)"

"24(4).... "

".. and 24(6) your lordship"

"Yes"

*Reads Section 24(4) and 24(6)*

"Yes"

"Your Lordship will see that the word used is 'consultation', which is of quite controversial nature with regards to its interpretation... "

"Show me the document where it says the District Judge was consulted... "

"Your Lordship will refer to Section... "

"No, you show me the document... "

*hands over the document to the Bench*

"Your Lordship will see the date and please refer to Para 6"

*Bench reads Paragraph No. 6*

"Where does it say consultation?"

"May I refer your lordship to the Proviso of the said section?"

"Yes"

*Reads Proviso*

"Does service mean the same thing as consultation?"

"Your lordship will allow me... "

"The meaning is not the same... "

"But this is the Section my learned friends are relying upon in their memo!"

"Which memo?"

"The original one"

*Motions for copy of the memo*

*Copy of the original memo handed to the Bench*

"Your Lordship will see the appointments to the post of Public Prosecutor in 2011 have been made without consultation with the District Judge... "

"Counsel, the state has not followed the proper procedure for the appointment of the public prosecutors. I am not going to invalidate those appointments in this proceeding."

"Does your lordship accept that the appointments were illegal?"

"Yes, they were illegal."

*Bench to the opposite party*

"Mr. XYZ, any intervention at this point?"

"Your Lordship, we would like to submit that the appointments made since 2011 were made according to the procedure."

"I am not going into that. What has been done is done. I cannot invalidate appointments made in 2011."

*Counsel intervenes*

"Your Lordship, if I may refer you to the latest memo"

"Yes"

"Your Lordship will see that the original memo has 9 names"

"... Yes"

"And the latest memo has a lot more names"

"... Yes"

"The opposite party is seeking a writ of mandamus, without specifying whether these appointments were made in consultation with the District Judge."

"Read the memo."

"Your Lordship I have only one copy of the memo."

"Then take it from me and read it."

*Reads the Memo*

"It says Judicial Magistrate."

"Judicial Magistrate is not the same as District Judge."

"I know your Lordship. But my learned friends..."

"I cannot go into those appointments. They will continue on an ad-hoc basis until the law relating to their appointments is followed. Mr. XYZ, how much time do you require?"

"Your Lordship, I cannot say. Please grant us the time which your Lordship feels is appropriate."

"Mr. ABC, any submissions?"

"Your Lordship would look at the names mentioned in the writ..."

"Have you made them parties to this proceeding?"

"No, Your Lordship. But a number of them do not have requisite experience required for appointment to the panel."

"Have you made them parties?"

"No, your Lordship. But Your Lordship, one of them even has an FIR under Section 302 pending against him."

"I am not going to pass any remark against any person unless you have made them parties to the proceeding."

(Mr. XYZ) "Your Lordship we have an email from the District Judge which we would like to show you regarding the appointment of Mr. [One Particular Public Prosecutor]."

*Hands over email printout to the Bench*

(Counsel) "It looks like the District Judge is interested in the continuance of the Writ Proceeding."

"Mr. Counsel! That is a very serious accusation that you are levelling against one of our judicial officers! Do you have any evidence?"

"What is the evidence that the opposite party is relying on?"

"This email!"

*Bench passes printed copy of email to the Counsel*

"Is your Lordship seriously relying on an email from gmail.com as primary evidence of consultation for appointment? The little knowledge I have, and it is very little, regarding Cyber Law, says that you cannot rely on an email as evidence without verifying the server and the receiver!"

"Are you disputing the evidence?"

"Yes!"

"Mr. XYZ, 17th, 18th, 19th of the next month, whichever is a Friday, come back prepared. In the meantime, the appointments will continue on an ad-hoc basis. Until February 28 or until further orders."

*Order passed accordingly*

As is evident, an off the cuff remark against the District Judge led to a hostile exchange with the Bench, which was salvaged by the counsel by disputing the evidece using, by his own admission, his 'very little' knowledge of Cyber Law. 

Learn, dear reader, to buy time for your client, when the waters become choppy, rather than making any submission which would sink his ship.

A Visit to Tihar

It has been a while since I wrote on this blog. Things would have remained that way I guess, but a worldwide pandemic has finally forced me to break through the dreary dilemmas of law and publish here again.

I want to recount an experience when I was attending chambers of an Advocate and learning the ropes of the legal profession from him. 

"Attending chambers" sounds like a gathering of aristocratic dynasts, wearing three piece suits, pipe in hand, discussing the high falutin' matters of the day while laughing at ribald jokes. It is a curious way of expressing the rigor of a demanding profession - a profession in which words are powerful and have psychological and material impact. Concepts, on the other hand, exist in the abstract till they are more determinedly fleshed out. 

"Advocacy", as one of such concepts, exists somewhere at the back of one's mind and does not register in its full sense on one's conciousness because dealing with the machinery of law enforcement becomes a rigorous routine rather than being a novel one off experience. Perhaps those with an outsider's view of the law have a better understanding of the gravity of matters at stake rather than a young entrant at the bar. For him, it is just survival through sheer scrunching - moulding one's character, sharpening one's rhetorical and legal skill and becoming one with the legal fraternity, matter after another matter.

 

Still, there are some moments even for a young lawyer, where he steps back, and realizes the importance of the job that he is discharging. He realizes that there are matters of life and liberty at stake, and what seems to be a never ending academic exercise, actually reverberates powerfully outside the creaky courtrooms and into the individual lives of the litigants. 

And so it was for me, when among the usual humdrum of legal rigor, I was suddenly dispatched to Tihar Jail to get a Vakalatnama signed from two inmates (A Vakalatnama establishes a lawyer-client relationship after it is duly executed and filed in the court).

I will not bore you, dear reader, with the details of how to reach the jail, how much time it takes from the court, which route one should take etc etc. Suffice it to say that in due course of time I found myself standing before the entrance of the jail and entered it. 

Advocates have more leeway than others while visiting prisoners, but they too have to adhere to fixed timings for prison visit. I entered with half an hour remaining on the clock and heaved a sigh of relief. Entered my credentials in the visitor's register under the watchful gaze of the policeman seated there and finally came to the road that lead to the prisons.

Yes. You read that right. There is actually a road that leads to the prisons. What if prisoners unite and try to break and flee the jail? Who doesn't love freedom and a breath of fresh air? Ask the people who came out of self isolation after 2 weeks of quarantine how it felt. "Relaxed" they would probably reply. What if prisoners decided to "relax"? En masse? 

So you have roads. Long, winding ones. Not because the authorities want to make sure that the fleeing inmates at least get enough cardio before they face the rat race of the big bad world outside, but because there are watch towers at frequent intervals on the sides of these roads so that they can keep a watch on the people coming inside and going outside. The inmate that I had business with, was lodged inside Jail No. 8. And that was a long walk. 

When the walk ended, I came to the place with iron clad gates with a small passage to enter. There were high walls above the entrance. Barbed wire above the walls. There were watch towers inside this entrance with multiple sentries moving about on their posts. And because we Indians have an obsession with "killing two birds with one stone" mentality, the prominent sign on the gate wasn't the Jail numbers (they were less prominent) but a cheerful signboard announcing "Tihar Textiles" complete with its ISO Certification Number. 

Now, the thing with iron clad gates is, you have to knock them hard for the people inside to hear you. And if you have ever tried knocking them with your bare knuckles, you would know that knuckles hurt a lot without making the kind of sound you would expect. Perhaps that is why the English phrase "cracked his knuckles" rings so true. Knuckles really do crack under pressure and the only sound they make is of their own cracking. 

Anyway, the powers that be had shown mercy and had provided circular "knockers" (if I may call them that) for outsiders to come and use for the purpose of knocking the iron clad gates and making the kind of sound which, in ordinary course, is enough to knock even the most lethargic sentry off his feet. And so I took advantage of this state sanctioned opportunity to knock away. 

Twice.

Thrice.

Four times.

Then I stopped. 2 minutes later, the door slowly opened and a policeman looked at me with the curious contempt reserved for young lawyers. I gave him the Vakalatnama, along with a letter addressed to the Deputy Superintendent, Tihar Jail about the details of the inmate I had business with along with my Bar Council ID and barely had time to mumble "Vakalatnama attest karwana hai" before he shut the gate back on my face. 

Now the wait started. I was standing there in sweltering heat wearing black coat and black trousers without a place to even sit. I shuffled my feet and wiped the sweat off my brow. Within 5 minutes, a couple of other lawyers joined me as they too had come for attestation of vakalatnamas on behalf of their clients. We made small talk after they handed over the documents and joined me to wait for their turn.

Soon, we heard a police van approaching the gate. It came close to the entrance of the jail and then the driver, through a series of deft manoeuvres made the rear of the van face the jail entrance.

Watching us advocates from inside the van were prison inmates. Maybe they were undertrials. Maybe they were convicted. Maybe they had a court date. Maybe. But their gaze had a sort of longing for the freedom that they saw us enjoying. What was this freedom? It was the freedom to choose to be at Tihar Jail rather than to be sent to it forcibly. It was the freedom of choice.

The iron clad gates opened, and not just through the small passage through which I saw the policeman, but they opened wide. Inside, I saw, was a sort of a high ceilinged hall for the prisoners to be inspected, counted and then dispatched to their holding cells. A number of policemen sat in this hall, watching every move of every inmate, making sure nothing funny happened. I soaked in the visual details.

Once all the inmates were offloaded and counted and accounted for, the gates shut back again and the van made its way away from us. We went back to waiting for our names to be called out. Some 10 minutes later, my name was called out and I was handed back my documents. The Vakalatnama had the thumbprint of my client and the signature and seal of the Deputy Superintendent, Tihar Jail.

To be frank, I was hoping to meet my client. My senior hadn't told me that getting the Vakalatnama attested wouldn't involve me meeting the client and so I was under the impression that once my name would be called out, I would be allowed to enter the prison and meet my client. These turned out to be wishful fantasies of a young and inexperienced lawyer. 

I understood that once you are inside that prison, the routine act of meeting face to face also becomes a luxury allowed within the confines of constitutionally regulated framework. Maybe, the freedom that ordinary citizens take for granted, is the freedom lawyers fight for. Maybe, that freedom was much more than mere freedom of choice - it was the freedom to be. Maybe, I had my first lesson in the impact of advocacy in the real world.

I had plenty to think about on my walk back to the exit.