One question that has often vexed me is that which presents itself in the following hypothetical-

A bench of five judges decides a particular case by a majority of 3:2, three of the judges coming to the conclusion X and two coming to the conclusion not-X. The minority of two, when coming to the conclusion not-X, relies on reasoning Y. Of the majority, two of the judges relied on reasoning not-Y in arriving at conclusion X. However, the third judge forming the majority agreed with the minority on reasoning Y, but for some reasons (maybe application to facts, or some countervailing principle) came to the final conclusion X. Now, in a subsequent case, if a lower Court is asked to decide on the validity of reasoning Y, is it bound by the fact that three of the judges in the previous case adopted reasoning Y? Or is it to ignore the reasoning of the minority, and hold that since two of the judges forming the majority adopted the reasoning not-Y, that is what is the ratio of the case? Is there a third option? Matters get further complicated if none of the judges forming the majority agree on the reasoning. In that case, if we have the three judge majority relying on reasoning Y, not-Y and Z respectively, what are lower courts bound by?

My initial view on this was based (in the absence of authority, which is usually an ominous sign), on the separation between the reasoning of a case, and the conclusion arrived at. I believed that although the majority may have come to the same conclusion on facts, the legal principles all the judges employed to arrive at their respective conclusions must be considered irrespective of whether the judges espousing those principles ended up in the majority or the minority. The reasons for this were two-fold: first, just because a judge disagreed on his assessment of facts did not seem a strong enough reason for ignoring his legal reasoning in arriving at his conclusion; secondly, for purely practical reasons, particularly in India, adopting the approach of ignoring the judgments of the minority would often leave lower courts with Supreme Court dicta with no real binding ratio (the decision in Kesavananda Bharati would be an ideal example).

Whatever my initial views may have been, I have now come across two sources that take the opposite stance- and given their stature in India and the United Kingdom respectively, I can do no better than defer to their wisdom. The Indian authority is Mr. Seervai, in his analysis of Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi, AIR 1968 SC 1232. [“Birla Mills”] and the English authority is Lord Denning, in his decision in In Re Harper and Others v National Coal Board, [1974] Q.B. 614 [“In Re Harper”].

Birla Mills was a decision on the validity of delegated legislation, and involved the question of whether, and what kind of, guidelines are needed for an act of delegated legislation to be valid. It was heard by a Bench of seven judges, which can be broken down into three major factions: 2 judges held that valid delegation needs policy, and that the impugned enactment did not contain such policy guidelines^[i]; 2 concurred on the point that policy guidelines were necessary but held that, on facts, there was such policy;^[ii] and 3 held that no policy is needed, and hence the enactment was valid.^[iii] Hence, 5 upheld the law and 2 quashed it. If the question of whether policy is needed arose, applying the rule I considered ‘logical’, I would have thought that since four of the seven judges thought that policy is needed, that is the ratio of the case. However, Mr Seervai argues that the decisions of the 2 dissenting judges have to be ignored. Hence, one should only look at the 5 who upheld the law. Since, among these 5, three held that no policy is needed, that should be taken to be the ratio of the case.[iv]

Lord Denning MR takes a very similar stance in In Re Harper. The issue before the Court of Appeal was whether the period of limitation for a claim in negligence began from the date when the claimant was aware of the facts constituting negligence, or from the date on which he became aware of the cause of action being made out in law. The binding House of Lords decision on the issue was Smith (and Dodd) v. Central Asbestos Co. Ltd., [1973] A.C. 518 [“Smith”]. There, the two Law Lords forming the minority had held that the limitation period was to be computed from the date when the claimant became aware of all the material facts. Two of the Law Lords forming the majority held that the limitation period began from the date when the claimant became aware of his cause of action in law. Lord Pearson, the “odd man out” ( per Lord Denning), held that the relevant date was the date on which the claimant became aware of the material facts. However, he disagreed with the minority on what this date was, and held that the date was the same date on which the claimant had also discovered that he had a cause of action in law. In other words, Lord Pearson agreed with two judges on what date the limitation period began from, and with the other two judges as to what the test for determining this date was.

Lord Denning’s solution to this conundrum is best read in his own words-

How then do we stand on the law? We have listened to a most helpful discussion by Mr. McCullough on the doctrine of precedent. One thing is clear. We can only accept a line of reasoning which supports the actual decision of the House of Lords. By no possibility can we accept any reasoning which would show the decision itself to be wrong. The second proposition is that if we can discover the reasoning on which the majority based their decision, then we should accept that as binding upon us. The third proposition is that, if we can discover the reasoning on which the minority base their decision, we should reject it. It must be wrong because it led them to the wrong result. The fourth proposition is that, if we cannot discover the reasoning on which the majority based their decision, we are not bound by it. We are free to adopt any reasoning which appears to us to be correct, so long as it supports the actual decision of the House.

Applying these propositions to the decision in Smith, Lord Denning concluded that since the majority was not agreed on a single reasoning, there was no ratio that could be taken away from the case in terms of the correct reasoning. Hence, he does not rely on Smith as binding precedent and culls out the appropriate test from earlier precedent.

Before concluding, one important difference between Lord Denning’s approach and that adopted by Mr Seervai is to be noted. Lord Denning, in culling out “the reasoning on which the majority based their decision”, appears to require that all the judges of the majority should have agreed on a single line of reasoning. He does not hold that a subsequent Court is bound by the reasoning of a majority of the judges forming the majority (i.e. two judges out of a three judge majority). Applying this stance to Birla, since the majority disagreed on whether guidelines need to be laid down by Parliament, subsequent Courts would not be bound by any of the observations on whether guidelines are needed. This is different from Mr Seervai’s approach, and with due respect to him, seems preferable, for two reasons- first, it does not result in a minority of judges (numerically) laying down binding law for subsequent courts; and secondly, it ameliorates the concern over facts influencing binding legal precedent which I had mentioned earlier (as the basis of my initial view).

[ii] Justice Shah and Justice Vaidialingam.

[iii] Justice Sikri, Justice Hidayatullah and Justice Ramaswamy. Justice Sikri gave a separate opinion, but the basis of his decision was very similar to the other two.

[iv] Although the settled position in India today is that some basic guidelines are needed and that essential legislative functions cannot be delegated: In re Delhi Laws Act, AIR 1951 SC 332, that does not take away from Mr Seervai’s argument on the interpretation of Birla Mills.

Waiting for one’s matter to be called on a Miscellaneous Day usually involves a lot of waiting in crowded courtrooms with boredom and other people’s elbows in one’s ribs for company. Whereas not much can be done about the latter (at least, not in a manner that will attract a certain international convention), the former can be addressed once in a while by listening to arguments in the cases listed prior to one’s own. Mostly they are dull-as-ditchwater property disputes, rent or tax matters, with the monotony broken by the odd matrimonial dispute, death penalty case or Justice Markandeya Katju. Even rarer, there are actually momentous cases involving erudite eminent counsel arguing matters of grave public importance before inquisitive and intelligent judges. When such cases are taken up for hearing, one is instantly hooked.

Sometimes, the outcomes of these cases, even on a miscellaneous day, shifts the tectonic plates under your feet and you realize that the shockwaves from this ponderous pronouncement will be felt in far away places.

This was one such case Sports administrators can now be prosecuted under the Prevention of Corruption Act, 1988. .

Firstly, to clarify, the Supreme Court itself did not actually make such a pronouncement. All it did was refuse to exercise its discretion under Article 136 to take up the matter for consideration and therefore, let the Kerala High Court judgement itself stand.

Secondly, it was the barely noticed Kerala High Court judgement that actually set off the tremors which reached all the way to Delhi. The judgement itself is totally worth a read.

By sheer dumb luck, I was actually in Court No. 8 when counsel for the Kerala Cricket Association office bearers, Uday U Lalit tried his best to convince a skeptical bench comprising Justices VS Sirpurkar and TS Thakur that the Kerala High Court judgment was wrong. Lasting much longer than your average Miscellaneous Day hearing, the duel between Mr. Lalit and the Bench was a fascinating one, not only for what was said, but what was unsaid and implied. Much of it hinged on how Mr. Lalit wanted the Court to view the majority judgment of the Constitution Bench decision in Zee Telefilms v Union of India (2005) 4 SCC 649, and a careful nitpicking of the Kerala High Court judgement that had held KCA office bearers to be “public servants” and therefore liable to be prosecuted under the Prevention of Corruption Act, 1994 for misappropriation of funds.

The Bench was having little of it.

Justice Sirpurkar (presiding), with his perennial smile that is almost, but not quite, a sarcastic sneer, never seemed even close to being convinced by Mr. Lalit’s arguments. When he called the Kerala High Court judgment a “beautifully crafted judgment“, Mr. Lalit’s shoulders seemed to drop and he sensed the mood of the Court and realized the battle was over. As bravely as he was trying to piece together his arguments that were being so carefully and meticulously being picked apart and cast to the winds by Justice Thakur, Mr. Lalit seemed to sense where this was going. The final order, laconic and brief (as it usually is on admission days) captures nothing of the actual drama of the arguments.

The implications though, are clear and stunning. While the majority in Zee Telefilms had held that the Board of Cricket Control in India was not “State” for the purposes of Article 12 of the Constitution of India, and therefore its actions were not subject to judicial review under Article 32. While the BCCI and its lawyers (and a good many constitutional law experts) sighed in relief, what went almost unnoticed was this:

..it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution which is much wider than Article 32.

Like the proverbial side door of the castle left unlocked that resulted in the city’s fall (the source), this little passage left open a small opening in the almost complete immunity that BCCI (and its affiliate associations) seemed to enjoy from any sort of legal scrutiny of their maladministration.

A clever lawyer in Kerala found it, and made a foray. So far, successfully.

The trial has, of course, only just begun, and like with everything else about the Indian criminal justice system, will be long delayed and will involve many appeals until the matter is brought to finality.

That, of course, is irrelevant for the actual implications of this short order of dismissal of an SLP.

Sports administrators in India have had a happy time these last few years raking in the money (ours by the way) with no accountability or even the slightest pretence of competence or awareness of the sports’ fans concern. They have brooked no interference either by the State or by the judiciary all the while hiding behind the “but we are a private body” defence. The latest embarrassment is no surprise, but rather all too typical, and one would have expected that at least some of them would have had the decency to fall on their swords because of this. From the looks of this, they are shameless enough to pretend that nothing’s wrong, it’s all someone else’s fault, and they would like another go at trying to squeeze more money out of fans.

Maybe not all of them will face criminal charges. Maybe not even all of them who face charges will even be convicted.

But I like the idea that from today, they will sleep a little less easy knowing that they are one intrepid lawyer and a complaint away from spending the rest of their lives scurrying around and trying to avoid jail.

UPDATE: 18.04.2011 Just as I predicted, another cricket association comes under the scanner for corruption, relying on the Kerala High Court judgment. Sales of sleeping pills and headache pills to cricket administrators across India rise.

Legal opinions can be funny animals. There are the straight forward ones, the sneaky ones, some are informative, some wasteful, all depending on the addressee, client (including budget), opposing parties, questions of law and various matters that make legal opinions unfathomable even to their connoisseurs – transactional lawyers. When all these complex matters come together and churn in your gut, red lights go on in your head, you know there are some things that have to be said but you cant say because you are a lawyer. Especially when there isnt anything ‘illegal’ or ‘non-compliant’ but when things smells funny. You take cover and you make noises, squeak but not squeal, do a little hop.

Clients don’t like little squeaks and hops. In a legal opinion, you have to justify noises that you make. One of the wonderful things to the rescue is ‘Obiter dictum’. There is a sea of it, an ocean – blue waters full of little fairies ready to justify the randomest of thoughts and arguments, a lawyer’s damsel in the time of distress. Obiter is that part of a judgment (opinion of a court) that contains what courts actually mention in passing. Picture your mother, dishing out her opinion of your new girlfriend just when she’s about to lock you out of the house (actually, for smelling of rum). This can be useful and important when you can’t find a prior decision to give you an idea of how courts (read mom) would look at a dispute (read girlfriend). To get a flavour of things to come, words mentioned in passing are sometimes all we as lawyers are called upon to make the best of. We twist and turn them over a fire, roast them to a decent brown, and drop them into our opinions.

When legal opinions are cooked up, lawyers are careful to distinguish between ratio decidendi (law on the basis of which courts actually decided a case) and obiter dicta (courts in blah blah mode), thus tempering the seriousness of their conclusions. But sometimes we wonder if courts actually know the difference. There are judges who like to have fun with all parts of their opinions, and often care little about the seriousness of their conclusions. But theoretically, it is imperative that judges get the ratio decidendi right, while the obiter which has no bearing on the matter at hand, can be blah. Judges can blah wrong, blah and blah, blah in peace, all in the off chance that someone someday somewhere will heed their obiter, hail their foresight, alter the law (to suit the blah), and place their names on obscure pedestals in distant law universities. Obiter is a longshot, a lottery ticket to limelight.

For lawyers who yearn entertainment when punished with inconclusive and long-winding legal research, obiter can be an excellent source of entertainment. Obiter can be interesting, random, mind numbing, dumb, philosophical, cynical, religious, patriotic, socialist, stupid and anything else that that you like it to be, you stumble across them everywhere and unlike ratio decidendi, obiter often exceed expectations. Obiter also makes for good conversation. If you want to capture the attention of an attractive lawyer, no better way than to discuss which part of a judgement was funny, and which part disgusting. Lawyers are creepy, but in innocent ways.

But judges? A recent example of entertaining obiters is in this judgment (which some called a ‘historical disquisition’!). I don’t mean to trivialize a gruesome case involving sexual molestation, but this obiter is truly, well -  comedy, unadulterated and unintentional. We recognize judges are extremely well paid in this country, and often have the insatiable urge to create value, but this passage should blow anyone’s mind:

“25. In Google `The original inhabitants of India’, it is mentioned : “A number of earlier anthropologists held the view that the Dravidian peoples together were a distinct race. However, comprehensive genetic studies have proven that this is not the case. The original inhabitants of India may be identified with the speakers of the Munda languages, which are unrelated to either Indo-Aryan or Dravidian languages”

26. Thus the generally accepted view now is that the original inhabitantsof India were not the Dravidians but the pre-Dravidians Munda aborigines whose descendants presently live in parts of Chotanagpur (Jharkhand),Chattisgarh, Orissa, West Bengal, etc., the Todas of the Nilgiris in Tamil Nadu, the tribals in the Andaman Islands, the Adivasis in various parts ofIndia (especially in the forests and hills) e.g. Gonds, Santhals, Bhils, etc.

27. It is not necessary for us to go into further details into this issue, but the facts mentioned above certainly lends support to the view that about 92% people living in India are descendants of immigrants (though more research his required).”

8 percent makes sense!

I wonder where the other 8% of our descendants came from, and who is smoking what. Please read all of it, it makes for good conversation and most of all – it’s a hell lot of fun.

On such days, the pace of life in the Supreme Court is slower. You can take your time to smell the fresh cut grass in the mornings, exchange gossip leisurely over machine coffee with other Advocates in the SCBA cafeteria, or just wander the corridors trying to see if there’s anything entertaining going on (almost always found in one particular courtroom).

On one such day, I spotted her; the activist, the campaigner and the tireless crusader. You know who I am talking about. Well into her fifties, but looking simultaneously, older and younger than that. White crumpled khadi sari with only the barest hint of colour and embroidery. White hair streaked only occasionally with grey and black. Thick glasses. One look and you know which case she is there for. I only needed to look up the causelist to see which court that’s all. I guess you could say she’s a “celebrity” but I don’t think she’d like that. Long after the celebrities abandoned her war as a lost cause, she continues to battle on with a few, dwindling band of trusted allies. She’s back to the same battlefield that you think probably crushed her hopes for the system a decade and more ago. Somewhere in my memory, there’s that image of her openly weeping after the judgment was handed out throwing her (and her cause) out of the courts.

Yet, she’s back here. There’re no mobs of reporters surrounding her for a sound-bite. Her case is no longer cause célèbre and the hearing will probably get a couple of column centimetres in the usual Supreme Court beat of most dailies.

Against her, I reliably learn, are ranged Senior Advocates Smartypants and Shouter. Senior Counsel Smartypants is the darling of the media and a good chunk of the newest members of the Bar. If he’s not on TV expounding on the burning issue of the day, he’s burning up the Supreme Court with the sheer brilliance of his oratory and legal mind. His rates also burn a big hole in the pocket of many a litigant, and he’s usually briefed and backed up up by a law firm or two, apart from his own small army of juniors.

Senior Advocate Shouter is well known for the sheer (auditory) force of his arguments. It is reputed that he doesn’t believe in shuttling between the Supreme Court and the High Court for cases since he can very well make himself heard in one from the other. He is less of a lawyer, and more performance artiste, as most judges are just too dazed by the assault on their senses to do anything but what he wants them to do for his client. Naturally, his rates compare favourably with those of Smartypants.

So there’s this tiny woman, a non-lawyer arguing her own case (party-in-person), for what’s a no-longer-fashionable cause (rehabilitation of tribal families displaced by development) against what, honestly, are insurmountable odds. In her corner, she has the “typical jholawala”, jhola, kurta, beard, thick glasses, burden-of-universe-on-shoulders-demeanour; the “LSR girl” (not my nomenclature since apparently everyone in Delhi knows what this means, i.e., fab india kurta, jeans, big bindi, earnest expression, shrill voice and of course, burden-of-universe-on-shoulders-demeanour); and the Public Interest Lawyer. The last, alas, is a dying species in this day of the Private Interest, the Political Interest, and the Publicity Interest Lawyer, all of whom now claim a greater share of the PIL pie than the Public Interest Lawyer.

Her case hasn’t come up yet, and lacking a proper Supreme Court Chamber, she just sits down with her briefs, bag and books in a corner of the courtyard in front of the Chief Justice’s Court, near the steps. Like any good lawyer, she goes through her briefs, makes sure she has her material, her books and everything she needs to make a proper legal case on behalf of her… cause? Clients? Neither word fits here, so I guess you will have to put in what you think fits best.

To an observer it’s odd and incongruous. Not just the fact that this woman sits here before the Court preparing for her brief in the midst of lawyers taking no note of her as they walk to and fro about their business. It’s odd and incongruous that she retains an iota of faith in the System. Especially when others who claimed allegiance to the same cause made such public shows of their disenchantment with the Courts, judiciary and lawyers, and have now latched themselves on to new causes and new Gandhis.

Her case has finally come up, and she hurries into the Chief’s Court where the matter is being heard. Senior Advocates Smartypants and Shouter are already there. She begins. It is a prayer for interim relief from the Court in the pending litigation. The Smartypants and Shouter, I am informed, have been hired by the State Governments opposing her pleas. I try to follow the case, but get called away as the matter I was working on is going to be taken up in another Court soon.

As soon as that is done, I rush back to the Chief’s Court, but it’s all over.

She’s won.

I ask around for details, and someone confirms it. Adverse interim orders passed against the States in the PIL being monitored by the Supreme Court.

As the next case is being called out, she leaves the Courtroom quickly with her allies. Standing close to the Courtroom’s doors, I get to see her close up. I’m not the best judge of these things, but I don’t detect triumph in her eyes, or anything approaching jubilation. Relief? Probably. Contentment? Unlikely. Just the beginnings of a small smile. This is not the end of her fight. It probably doesn’t have an “end” in the strict sense of the term. Maybe it’s the look of someone who’s been given one small reason to continue believing in, and have faith in “The System”.

I don’t know really.

I guess I’ve got at least one less reason to lose faith.

The facts which led to the proceedings before the Supreme Court were fairly straightforward, but require a detailed reproduction. Land belonging to the Respondents 1-4 was acquired by the Appellant, but the compensation due for this acquisition was not deposited. The Respondents approached the Executing Court for the recovery of this amount, but despite the service of notice, no one appeared for the Appellant. As a matter of course, the property was put up for auction sale on 12/8/1992, and Respondent 5 was declared the highest bidder with a bid of 22,65,000/-. In the words of the Supreme Court itself, it was only after this that the Appellant “woke up from its slumber”, and filed objections under Order 21, Rule 90. The case was then fixed for the recording of evidence on four dates in March, April and May, 1993. However, on none of these dates did any one appear on behalf of the Appellant, leading to its objections being dismissed on grounds of non-appearance. The case was posted for confirmation of the sale to June 1993, on which date again no one appeared for the Appellants. The sale was confirmed, and the amount of compensation due to Respondents 1-4 was paid over, and the rest of the moneys are still lying in deposit in Executing Court. It was only after this that the Appellant filed a Miscellaneous Appeal before the District Judge, Ludhiana, challenging the validity of the orders. This appeal was filed two months and a few days beyond the period of limitation, and was hence dismissed by the District Judge. An application for condoning delay under section 5 of the Limitation Act was filed, but was also dismissed since sufficient cause for condonation of delay was not established. In the face of a specific bar created by section 104 of the CPC, the Appellant filed a second appeal before the High Court of Punjab and Haryana, which the Court was kind enough to treat as a Revision Application, which it proceeded to dismiss. It was against this that a Special Leave Petition was filed in the Supreme Court (again severely delayed, as appears on p. 5 of the judgment).

The above list of dates and events provides no indication of what sufficient cause allowed for a condonation of delay. Even the judgment is entirely silent on what reasons justified this lackadaisical attitude by the Appellant. The only reason put forth is that the erstwhile advocate of the Appellant before the Executing Court, Mr. P.K. Jain, had been appearing in several matters for it, and enjoyed the “implicit faith and confidence” of the Appellant. Since the matter had been contested “in right earnest right from the beginning”, and since “whatever best was possible to be done by the appellant that (sic) had been done”, even though there was “some delay”, it should have been condoned by the District Judge. The above quotes show that apart from blanket assertions, little was produced in the Court by way of concrete circumstances that justified the condonation of the non-participation of the Appellant in the execution proceedings. This was particularly necessary given that two courts (the District Court and the High Court) had come to the conclusion that sufficient cause was not established on facts.支架水池

On this unpersuasive account offered by the Appellant, the Court held that the District Court should not have dismissed the appeal on such a “hypertechnical” ground. It reiterated that an application for condonation should be decided as per the facts and circumstances of that case. The Court opined that the Appellant here had not been “absolutely callous and negligent” in prosecuting the matter. Inspite of the fact that the Appellant was an Improvement Trust and not a poor, indigent person, and inspite of the airy grounds put forth for condonation, one may persuade oneself that the Court was justified in arriving at this factual finding. Given bureaucratic loopholes and red-tape, as pitted against the imperatives of development and other such policy imperatives, one may make a case for siding with the Appellant. However, what one cannot make oneself see eye to eye with, is the observation that “unless mala fides is writ large on the conduct of the party, generally, as a normal rule, delay should be condoned”. For, with due respect to the liberal stance adopted by the Court, this observation turns section 5 of the Limitation Act on its head. The provision, in its relevant part, reads-

Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908) may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. [emphases supplied]

Clearly, under the provision, the burden is on the applicant to establish that he had sufficient cause for the delay. The above observation indicates that it is for the other party to establish that the delay is on account of mala fide, or occasioned by ‘callousness’ or ‘negligence’. Further, it is interesting to note that even section 5 does not apply to an application under Order 21 of the CPC. The likely rationale for this is that Order 21 deals with execution proceedings, which should be conducted without undue delays. Admittedly, the appeal before the District Court is not an application under section 5. However, in determining if a sufficient cause is established, the Court would have been expected to note the fact that the appeal was from a proceeding, which the legislature in its wisdom, has sought to fast-track. Indeed, if a condonation application before the Execution Court would not be permitted, it seems absurd to allow a condonation application on appeal before the District Court, especially when the matter before the Execution Court has been disposed off on grounds of non-appearance.

In sum, while the Court’s quest for justice must be appreciated, observations such as “justice can only be done when a matter is fought on merits and in accordance with law”, are both incorrect and contradictory. For dismissing the matter on grounds of the expiry of limitation or the lack of jurisdiction is as much ‘in accordance with law’ as disposing of it on merits. It can only be hoped that these observations are not adopted with too much vigour by lower Courts, or that they are watered down soon by the Supreme Court itself.

That list was too boring, so I decided to do this one.

TWENTY RANDOM, BIZARRE AND MOSTLY POINTLESS THINGS I’VE LEARNT IN MY FIRST YEAR OF LITIGATION

1. Never judge a book by its cover. Especially that notebook with the tatty cover and random scribbling which you tossed in the rubbish pile. It is where your boss writes his notes for the day’s cases.

2. The paintings in Courtroom 2 are portraits of Justice Venkatarama Aiyer and Justice Hans Raj Khanna, or at least a proper portrait of Justice Aiyer and what one can only assume is what the artist dashed off on the night before the deadline for Justice Khanna.

3. That black thingy attached to the PC which runs SCC Online in your office is not a useless little widget to be tossed into the bin. Apparently it is very vital to the operation of SCC Online in a manner no one has been able to satisfactorily explain to me so far.

4. A case that you are prepared for like no one has ever prepared for in the history of the law, will NEVER be taken up by the Court until the brief is no longer being handled by your office. Conversely, the matter you didn’t bother preparing for because it was far too low on the causelist will ALWAYS be taken up on that day.

5. Abbreviations are everywhere. Those that I have been able to decipher so far: Supplees – Items on the Supplementary list of the Court; miscy – miscellaneous day or miscellaneous matters; CoD – An application for condonation of delay; DB – Division Bench.

6. Excessive and unwarranted use of above abbreviations in a given conversation is also the surest way to identify a lawyer who is just one year into practice but wants you to believe otherwise.

7. Memorizing the full names and exact dates of retirements of all the judges of the Supreme Court of India impresses no one apparently.

8. Drafting is a fine art demanding great knowledge of the law, the English language, the facts of the case and the ability to be succinct… unless you’re drafting a Special Leave Petition in which case all four are entirely negotiable.

9. It is perfectly acceptable to use “qua” in a conversation and not sound like a complete idiot… if you’re a Senior Advocate.

10. The Display Board in the Supreme Court and the Printer in your Office NEVER work when you need them the most.

11. Contrary to the canons of good sense, you need to have your daily pass on you, file an affidavit and sacrifice a pigeon in order to be allowed to leave the premises of the Supreme Court of India once you enter. (Ok, I’m kidding… about the affidavit and the pigeon)

12. Deep in the warren of the Lawyer’s Chambers in the Supreme Court, when you least expect it, you will find a place that sells fruit juices.

13. The Delhi High Court Bar Association canteen is far superior to the Supreme Court Bar Association canteen.

14. There’s a smoker’s corner just past the Judges’ Library in the Supreme Court where lawyers who believe the no-smoking rule is a guideline anyway can puff away in peace, far from prying eyes.

15. There’s no shame in finding out that your manupatra skills are not half as good as the fading memory of an 80 year old senior counsel.

16. You will see these advocates every day in the Supreme Court hanging around, engaging in conversation with other lawyers, and generally giving the impression that they belong there… except that neither you nor anyone you know has ever seen them with a brief of their own or argue a matter in court. You shudder to think if that could be you in twenty years.

17. For every proposition of law for which you can find ten Supreme Court cases as authorities, there is always also the opposite proposition of law for which you will also find ten Supreme Court cases as authorities.

18. No lawyer has any clue as to how any given court will react on any given miscellaneous day in a particular case. In this regard, astrologers are as accurate as seasoned Supreme Court veterans.

19. Litigating lawyers, with a few exceptions, are all luddites.

20. When engaged in litigation for the Government, one can always expect the officers briefing the counsel to be completely dispassionate, informed and articulate. One should also expect to see pigs take wing over the Supreme Court’s dome.

Watch this space for “Twenty Things I Should Have Learnt in My First Year in Litigation (but didn’t, and That Is Why There Is No ‘Twenty Things I’ve Learnt in My Second Year of Litigation’ blog post)”.

So you think you’re too good for the law firm. You’ve turned down offers with a snort of derision and an email, barely hiding your contempt for the corporate law world. The grime and dirt of litigation in the lower courts are way beneath you and you shudder at the thought of being in a classroom again, so teaching’s out of the question. You think you can tell the difference between the doctrine of legitimate expectation and promissory estoppel (better than the Supreme Court for that matter). So the only career option for you is the highest of the high, the most important of the most important-est, the Supreme Court of India itself. Naturally, since you just finished law, you’ve got to start at the lowest level at the highest level… junior to Senior Advocate.

So you join a Senior who actually pays cold hard cash (in the form of tax deducted cheques every month) for your “services”. Your “services”, you will realize very quickly, involve following him around on Miscellaneous Day in the Supreme Court; Monday and Friday every week.

Hah, miscellaneous day, you think. Been there and done that, you tell yourself like an old pro. In fact the sum total of your experience of miscellaneous day has been the naps you took in the visitor’s gallery in the various courtrooms while you interned with another Senior. It was mostly fun too, watching lawyers of all shapes, sizes, accents, stages of hair loss and sense of self importance attempt to convince judges in 2 minutes or less, the need to admit their particular case for further scrutiny. That didn’t seem so hard. Or complicated. This seems like a particularly easy piece of lemon cheesecake with soft icing and a cherry on to… ahem. Very easy. Yes.

On your first Saturday in Delhi you see the Qutb Minar… on your desk. Except it turns out to be the pile of matters for Monday. Prepare notes on everything by tomorrow and be ready with all the facts. By tomo. This is an unusual miscellaneous day right? I mean not every weekend is gone thanks to miscellaneous day, right? The more “experienced” juniors titter among themselves and give each other knowing smiles and just as you’re wondering what intra-office sexual innuendo you’re missing out on, one of them helpfully clarifies that this is every miscellaneous day…. Ever.

As you cry silent tears for your weekends lost, and work your way through the pile of poorly drafted SLPs, you console yourself with the fact that at least, this is “real” lawyering work. At least you’re using legal skills and not just your proficiency at Microsoft Word 2007 ™.

You spend the weekend on carefully crafted and well researched notes. On Sunday evening as you help your boss prepare for Monday, there comes a crushing realization. All your notes are entirely useless. Your boss has his own notes. Handed written with all the citations in his own short hand. You make yourself marginally useful by picking up the cases from the office library for tomorrow.

On the day itself, you feel all important and lawyerly in your lawyer robes, stride confidently into the Supreme Court… and join the long, long queue of lawyers waiting for a photo-identity pass. By the time you fill out the form and wait for your turn to come, you sport the dirtiest look and it shows on your pass. The poor light and low resolution webcam make you look like more like a convicted criminal and less like the appellate court litigator you imagine yourself to be. You stand in line again at the gate and quietly curse the lucky few who managed to get the proximity card before the SCBA’s internecine warfare put a sudden end to the process. You’ve got a mentioning matter in Court 1 and it is 10:29:45 already.

You rush into court 1… and get shoved right out. There’s a solid wall of black blocking your way. Lawyers jammed in tight into the passage leading upto the Bar. To the sane and rational mind, there is no way in. But this is Miscellaneous Day. Sanity and rationality were stopped outside the court for not having proximity cards. You adopt the path of least resistance and most privacy invasive. You start by identifying the tiniest gaps, non-obvious to all but the most discerning eye, and like a particularly skilful octopus, insert yourself into these gaps. Soon, enough of you is trapped between the bodies and gowns, and the natural churning and movements of human bodies trapped in an enclosed space sees you getting spat out somewhere in the direction of the Bar. Mentioning has begun and you barely catch enough breath to mention your matter, and turn around to repeat the process, only this time trying to get out of the court. Before you know it (no, actually it’s like a particularly tortuous eon, but you want to block it out of your mind) you’re in the corridor, all ready and set to begin the Miscellaneous Day Run. 14 matters, 11 courts… all likely to reach at approximately the same time. So it begins.

Two matters down and you’re gasping for breath and losing liquid mass faster than an icecube in the Thar. You run to the cafeteria, toss money in the general direction of the cashier, grab bottles of water and chug them down as you hustle off to Court with renewed vigour to the next matter.

The clerk’s there, outside court. Evidently looking for you. He tells you what you don’t want to hear. Pass-over lena padega. Saab high court gaya. You groan. Not this matter, not this court, not this judge. Once more you contort yourself, intercept others’ sneezes and coughs in the process and finally land up close to the Bar, just as your matter is being called out. “Passover” you gasp, hoping that the judge is too overworked, harassed or just too annoyed to bother you with further questioning.

Or he could just be too overworked, harassed or just too annoyed to indulge the juniors of over paid senior counsel. Shit.

He glares at you, narrows his eyes, and says the one thing you did not want to hear.

“Why?”

(to be continued)