LOQUITUR

In Memoriam: Milind Vasudeo

2008-08-15T08:45:23Z

Godspeed Mr Vasudeo

A tribute to the memory of our member, and Honorary Secretary of the High Court Library, Mr Milind Vasudeo.

by Gautam Patel

Nothing prepares us for those moments of senselessness that erupt so unpredictably. These are times that leave us with no appropriate response. The passing of our colleague and friend, Milind Vasudeo, at such a ridiculously early age, robbed us of more than it is possible to account. How does one even begin to grieve? For lawyers whose stock in trade is a lack of finality, the verdict of life and death holds a very real terror: there is no appeal, no review, no revision, not even a reason. It is an irony that would not have been lost on Milind.

Many years ago, Milind, Suresh Gupte and I were at a reading by the late Vijay Tendulkar, the renowned Marathi playwright. There was complete silence. No one spoke or coughed or cleared this throat. Tendulkar, as was his manner, read softly and dispassionately. But the words were filled with an excoriating rage and a strangely intense sadness. The effect was somehow electrifying and I never quite understood what made it so. Milind and I often spoke of that evening, and he once explained to me what it was that made it so special. The separation, he said, of form and substance, that remarkable distinction between the soft, gentle voice and the knife-edge words, gave it that impact.

It seems natural now that Milind should have seen this. In many ways, it reflected his own temperament. Even under the most extreme provocation�and there has been at least one such instance�no one has ever heard him raise his voice in court or outside, or publicly display anything but complete calm. Such equanimity in a highly stressed vocation is rare, and watching Milind turn a hostile court proved its value.

The Honorary Secretaryship of the High Court Law Library could never have been easy. Perenially strapped for finances, a common resistance to change and to every increase in the paltry fees, the rising costs of books and journals and the need to look after our dedicated and committed staff have always been powerful forces pulling in different directions. How Milind managed to keep it stable and on course for years on end is something only he knew. It is going to be a very, very hard act to follow.

And yet, beneath that calm and genial appearance lay fierce passions. There was the annual pilgrimage on foot to Shirdi, not something for the faint of heart given the road, the environment and the heat. Milind did it year after year. Then there was his delightful obsession with food. Semper paratus in that department was our Milind, ever willing to dive into the smallest byelanes of the city to find the one particular delicacy he sought. And of course he just had to know about every ingredient, where it came from, what kinds were the best, how it was prepared, and his eyes danced when he spoke about it all. There was, too, his house at Nagaon, which he always spoke of with a sort of wistfulness as if to say now why on earth should I be standing here talking to you when I could be there? Above all, there was his family; it�s difficult to think of a conversation when he didn�t speak of them with an intense pride, especially in the children�s very real achievements. There was no hubris in this, just the indescribable joy of a father.

A couple of years ago, I saw him argue a difficult case. He didn�t succeed. Others may have shrugged and walked away. Not Milind. A while later, I saw him again in the Bar Association. He was with his client who was greatly agitated. Milind spent very nearly an hour or more with him, presumably pacifying him, explaining the situation. At one point, he just sat quietly with the distraught client, not saying a word, just being there for the man. That afternoon, as we often did, we walked back together from Court to our chambers just one lane from each other�s, and I remarked on what I�d seen. He smiled gently. �It�s no trouble,� he said. �The way I see it, it has to be part of the job. Of course litigation is unpredictable, but even if everyone knows that, losing is always hard and winning is not always easy. But win or lose, you can�t just hand a client the papers and send him the bill. Being a lawyer has got to mean more than that.�

Came 2008, a difficult year for Milind. First there was the obstructive hepatitis that kept him from court for several months, and then a series of ailments. It changed him physically to the point where some failed to recognize him, but only realized who he was when he spoke. We thought things were on the mend. He assured us they were. Why, he had even done his annual pilgrimage. Then came the news that horrendous morning. It is one of the times when one curses technology for the speed at which it conveys news no one wants or needs to hear.

Nearly a month later, shock still sharpens our grief. Even in this theatre of the absurd, there are some vicissitudes that fill us with rage. It is too unfair, too arbitrary, too unjust. Here was a man who had done nothing but good, a man who revelled in every joy that life has to offer, who had nothing but an abundant kindness and gentleness in every fibre of his being. Why he of all people should be taken from his family and friends so early is something we will never know. No appeal, no review, no revision; we are without adequate response, except perhaps this: only the good die young.

Godspeed Milind, lawyer, colleague, friend. It�s going to be a lonelier, sadder and poorer world without you.

The stars are not wanted now: put out every one;
Pack up the moon and dismantle the sun;
Pour away the ocean and sweep up the wood.
For nothing now can ever come to any good.
� W. H. Auden

Rahul Chitnis
Honorary Secretary

Bombay Bar Association
Room No 57, 3rd Floor, Bombay High Court Building, M Kane Marg, Mumbai 400032

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Felicitation Dinner for newly appointed judges

2008-08-14T13:57:25Z

August 15, 2008

FELICITATION DINNER FOR NEWLY APPOINTED JUDGES

The Bar Association has organized a dinner to felicitate Mr. Justice R. V. More, Mr. Justice R. M. Savant, Mr. Justice K. K. Tated and Mr. Justice S. J. Kathawalla on their appointment as Judges of the Bombay High Court.

The dinner will be held at Centrum Hall, 1st Floor, Centre 1 Building, World Trade Centre Complex, Cuffe Parade, Mumbai 400 005 on Friday, 22 August 2008 from 8:00 PM onwards.

The per head contribution for the dinner is as follows:

1	For members of less than 10 years Standing and their spouses	R.600 per head
2	For members of more than 10 years but less than 15 years standing and their spouses	Rs.800 per head
3	For members of more than 15 years Standing and their spouses	Rs 1000 per head
4	Designated Seniors and their spouses	Rs.1200 per head

All temporary and permanent members (including those who have applied for temporary membership) are invited.

Members are requested to make payment to the Association staff by 5:00 pm on Friday, 22nd August, 2008.

Rahul Chitnis
Honorary Secretary

Bombay Bar Association
Room No 57, 3rd Floor, Bombay High Court Building, M Kane Marg, Mumbai 400032

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Newsletter: August 9, 2008

2008-08-09T01:42:06Z

August 9, 2008

Web: www.bombaybar.com

In this issue

Farewell Tea Party for Justice RMS Khandeparkar

Annual General Meeting of the Association

Standing Committee Elections

Farewell Tea Party for Justice RMS Khandeparkar

Justice KhandeparkarThe Bar Association has organized a farewell tea-party for Justice R.M.S. Khandeparkar on Monday, August 11, 2008 at 5:15 pm in the Bar Association premises.

All permament and temporary members, including those who have applied for membership in either category, are cordially invited.

About Justice RMS Khandeparkar

Born on August 15, 1946, Justice Khandeparkar was enrolled as an advocate on July 30, 1973. He was a member of the Goa High Court Bar Association since its inception and later served as the General Secretary of the Managing Committee of the said Association. Justice Khandeparkar was also a Member of All Goa Advocates Association and of the North Goa Advocates Association. From December 1990, Justice Khandeparkar was Standing Counsel for the Central Government in Goa; and, from 1984, the Special Public Prosecutor for Central Excise, Customs, FERA etc., in Goa. Justice Khandeparkar was the Advocate of Goa University since its establishment in 1985 as well as Advocate for Goa Housing Board from 1992 to 1996. He was appointed as a Judge of the Bombay High Court on April 12, 1996.

Annual General Meeting of the Association

The Annual General Meeting of the Bombay Bar Association will be held on Friday, August 29, 2008 at 5.15 pm in the Association�s premises in Room No.57. The agenda for the meeting is as follows:

To confirm the minutes of the last Annual General Meeting held on September 26, 2007;
Presentation of the Annual Report by the President;
To adopt the Audited Accounts for the year 2007-2008;
To confirm the appointment of the firm M/s. Ashok Jayesh & Associates as Auditors for the year 2008-2009;
To confirm the results of the elections for the posts of�
1. President
2. Vice-President
3. Honorary Secretary
4. Members of the Standing Committee
Address by the Standing Committee
Any other business with the permission of the Chairman of the meeting.

NOTE: Copies of the Minutes of the General Meeting referred to above and copies of the audited accounts are available on request with the Association staff.

Standing Committee Elections

With regard to the elections of office bearers to be held on Tuesday, 26 August 2008, Mr Hiralal J Thacker and Mr Girish J Desai, scrutineers appointed for the election have made a report as follows:

Only one nomination was received for each of the offices of President and Vice-President. The scrutineers have confirmed that Mr. Rohit A Kapadia is elected unopposed as President and that Mr Dara R Zaiwalla is elected unopposed as Vice-President of the Bombay Bar Association.
Two valid nominations of Mr MPS Rao and Mr Ramgopal S Tripathi were received for the office of Honorary Secretary.
35 valid nominations were received for the office of Member, Standing Committee of the Bombay Bar Association:
1. A P Fanibanda
2. C K Thomas
3. F A Ansari
4. Gautam S Patel
5. Girish S Kulkarni
6. G R Hegde
7. Harshad P Parekh
8. J P Cama
9. J R Rane
10. Jasbir Singh Saluja
11. Jayant J Satghar
12. J F Pochkhanawalla
13. Joboy Thadicaren
14. Milind R Sathe
15. M Shirazi
16. Ms. Anita S Castellino
17. Ms. Mamta Sadh
18. N Raja
19. N G Thakker
20. Pradeep Sancheti
21. P D Popat
22. P R Diwan
23. Ramchandra Yadav
24. Ramesh D Soni
25. R S Tripathi
26. Sashikumar Nair
27. S J Shah
28. Shaunak J Thacker
29. S K Sen
30. Suresh K J Panicker
31. T N Subramanian
32. Venkatesh R Dhond
33. Vinay A Rathi
34. Vinay S Pathak
35. Vinod N Solanki

Notice is hereby given that the election of the Office-Bearers and Standing Committee members of the Association will be held on Tuesday, 26 August 2008 between 10.00 am and 5.00 pm in the Association�s premises at Room No.57 in the High Court.

The voting will be by secret ballot.

Elections will be held for the following posts:

Honorary Secretary;
Standing Committee (20 Members).

Temporary members who have applied for permanent membership and have paid all dues are also entitled to vote. Members who have not fully paid their dues are not entitled to stand for or vote at the elections.

Rahul Chitnis
Honorary Secretary

Bombay Bar Association
Room No 57, 3rd Floor, Bombay High Court Building, M Kane Marg, Mumbai 400032

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Felicitation Dinner for Judges; EGM Adjourned Date

2008-04-24T09:00:04Z

FELICITATION DINNER FOR JUDGES

The Bar Association has organized a dinner to felicitate Mr Justice Bilal Nazki, Mr Justice A A Sayed, Mr Justice S S Shinde, Mr Justice A P Bhangale, Mr Justice A V Nirgude, Mr Justice R Y Ganoo, Mr Justice N D Deshpande, Mrs Justice R P Sondurbaldota, Mr Justice K U Chandiwal, Mr Justice S C Bora and Mr Justice A A Khumbakoni on their appointments as Judges of the Bombay High Court.

The dinner will be held at Mayfair Rooms, 254-C, Dr Annie Besant Road, Worli, Mumbai 400 030, on Tuesday, April 29, 2008 from 7:30 pm onwards.

The per head contribution for the dinner is as follows:

1	For members of less than 10 years� standing and their spouses	Rs.600/- per head
2	For members of more than 10 years but less than 15 years� standing and their spouses	Rs.800/- per head
3	For members of more than 15 years� standing and their spouses	Rs.1000/- per head
4	Designated Seniors and their spouses	Rs.1200/- per head

All temporary and permanent members (including those who have applied for temporary membership) are invited.

Members are requested to make payment to the Association staff by 5:00 pm on Friday, April 25, 2008.

REQUISITIONED EGM: ADJOURNED DATE

The urgently requisitioned Extraordinary General Meeting of the BBA has been adjourned and will now be held on Monday, May 5, 2008 at 5:15 pm in the Association premises.

Copies of the letter signed by Advocates regarding the proposed resolution are available with the Association staff.

The proposed resolution is as under:

�RESOLVED that Advocates of the Bombay Bar Association strongly oppose the transfer of Judges from other High Courts to the Bombay High Court. It has been our experience that such transfers seriously and adversely affect the justice administration system of the Bombay High Court and subordinate judiciary. It is also totally against the interest of the litigants in the State of Maharashtra and the State of Goa.�

All members are requested to attend the meeting. Temporary members whose applications for permanent members have been accepted are entitled to vote under Rule 3.5.

Rahul Chitnis
Honorary Secretary
Bombay Bar Association
Room No 57, 3rd Floor
Bombay High Court Building
M Kane Marg
Bombay 400032
Web: www.bombaybar.com
Email: honsec [@] bombaybar.com

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Urgent requisitioned Extraordinary General Meeting of the BBA

2008-04-22T22:45:02Z

URGENT REQUISITIONED EXTRAORDINARY GENERAL MEETING OF THE BBA

Pursuant to a written requisition signed by 42 Members of the Association, an urgent Extraordinary General Meeting of the Bombay Bar Association will be held on Thursday, April 24, 2008 at 2:45 pm in the premises of the Bar Assocation to consider and, if thought fit, to pass with or without modification the following resolution proposed by the requisitionists:

"RESOLVED that Advocates of the Bombay Bar Association strongly oppose the transfer of Judges from other High Courts to the Bombay High Court. It has been our experience that such transfers seriously and adversely affect the justice administration system of the Bombay High Court and subordinate judiciary. It is also totally against the interest of the litigants in the State of Maharashtra and the State of Goa"

All members are requested to attend the meeting. Temporary members whose applications for permanent members have been accepted are entitled to vote under Rule 3.5.

Rahul Chitnis
Honorary Secretary
Bombay Bar Association
Room No 57, 3rd Floor
Bombay High Court Building
M Kane Marg
Bombay 400032
Web: www.bombaybar.com
Email: honsec [@] bombaybar.com

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Jazzy Judgements: R v Francis; Bryan Garner makes movies ... of the US Sup Ct judges

2008-03-27T03:30:04Z

JAZZ RULES: R V FRANCIS

Our member Jimmy Avasia was delighted by R v Francis [2007] 1 WLR 1021.

Carlene Francis, the defendant, was alleged to have made a racially obscene remark to a police officer who came into the police cell where Francis was detained. Francis was charged with causing racially aggravated alarm or distress under Section 4A of the Public Order Act, 1986. She was brought before the Crown Court at Leicester.

Section 4A says it is an offence if, with intent to cause a person harassment, alarm or distress, a person threatens, abuses or insults another by words, behaviour or any visible representation. The section also says that the offence may be in a public or private place, except if done inside a �dwelling� and the victim of the offence is also in that, or any other, �dwelling�.

Section 8 defines a �dwelling� as any structure (or part thereof) occupied as a home or as other living accommodation and includes a tent, caravan, vehicle, vessel or other temporary or movable structure.

Mr James House, solicitor, appeared for the Defendant. His defence was that there could be no offence because the police cell was �other living accommodation� and hence covered by the exception.

Mr House succeeded in the trial court on this defence.

The judgement of the Court of Appeal was delivered by Moses, LJ with his tongue quite firmly in his cheek.

8. Mr House, with admirable persistence, submits that a police cell is other living accommodation. There are features, so he contends, of a person�s accommodation in such a cell which are similar or analogous to that which might be expected in a place where a person lives or which he occupies as a home, for example, eating, sleeping and completing ablutions. It matters not that the person there is under compulsion or only there temporarily.

Moses, LJ then goes on to consider whether a police cell is, in fact, other living accommodation.

10. A police cell is a place where a person is detained in custody, not a place which a person occupies as a living accommodation.

Why and how did the trial court err? According to the Appeal Court:

11. This case probably went wrong because the judge, in giving his conclusion that the defence were right, did not set out his reasons. Had he done so, he might have appreciated there were no reasonable grounds for his conclusion.

No stricture could be more elegantly or gently worded.

And, finally, saving the best for last:

13. We respect the achievement of counsel for the defence, Mr House, in convincing the judge that a police cell was a home, but sometimes early forensic success meets its nemesis in this court. When a bright idea strikes counsel as a moment of epiphany it is useful for the advocate to recall the advice of that illustrious member of the Modern Jazz Quartet. Miles Davis advised, �Think of a note. Don�t play it.� The appeal is allowed.

A footnote (again thanks to the redoubtable Avasia). The Appeal Court erred too. Miles Davis was never a member of the Modern Jazz Quartet. Is that an error apparent on the face of (forgive me for this) the record?

IN THEIR OWN WORDS: US SUP CT JUSTICES TALK INTO THE CAMERA

David Foster Wallace says he is a genius. Now Bryan Garner, editor of Black�s Law Dictionary since its seventh edition and the acknowledged eminence grise of legalese, boldly goes where no one has gone before: he interviews the US Supreme Court justices on video.

Unedited and available for free viewing at Garner�s website, LawProse, the videos make rivetting viewing. Eight of the nine justices are caught on camera. Only Justice David Souter declined the interview.

This collection might well have been titled LawTV Unplugged. It is remarkable not only because it has never been done before, anywhere, but also for the scorching candour with which the judges, usually the most reticent and wary members of society, speak their minds. Imagine the navarasas of Indian natyashastra transplanted into the US Supreme Court. Anger, despair, joy, passion, terror�they�re all there, and they�re all related to words in law.

Given how much they write, and how turgid their writing usually is, one might expect every one of them to have been comfortable with language and writing from very early on. For some of them this is indeed the case: Ruth Bader Ginsburg�s teacher (at Cornell University) was none other than the legendary Vladimir Nabokov. Along with Anthony Burgess, Nabokov was the kind of writer lexicographers probably read to see what�s new with the English language. (Sadly, that position is now occupied by the idiotic patois of cellphones). Words couldn�t possibly have held any terror for Ginsburg. But Samuel Alito says that writing, in his early school years, was traumatic. And Clarence Thomas claims not to have been comfortable with modern English till he was in his twenties; till then he used nothing but a local dialect.

The judges� statements are often bewildering. Some hate lengthy briefs (Roberts, Breyer); some dislike summaries (Scalia), while others think they are invaluable (Thomas, who likens them to previews of TV shows). What is an appellate lawyer supposed to make of this jumble of idiosyncrasies? Put in a summary to please Thomas and risk upsetting Scalia?

Scalia hates trite phrases, like �a precedent and its progeny�. He particularly abhors typographical errors. Scalia points out that typos murder credibility. If a draughtsman can�t proof his written material, how careful is he likely to be on the law? Contrast this with our own approach: we are completely indifferent to even the most egregious typographical errors, including in judgements.

The likes and dislikes can seem like pettifogging at times. John Roberts, Chief Justice, is allergic to citations of websites and URLs. He thinks �all those letters strung together� are �obscene�. This is rank silliness, for there�s simply no alternative. Note, though, that Roberts does not object to the web citations themselves, only the manner of citation.

Garner himself must have been delighted by another of Roberts�s pet foibles, his dislike of the word �which�. He thinks it should almost never be used, as it is archaic. Which, incidentally, it is not.

Anthony Kennedy weighs in with a broadside against linguistic abuse. He�s not wrong. �Existential�, for instance, is a word now thoroughly disfigured by the Bush administration, which (that word again!) treats it as a synonym for �a struggle for survival�. Islamic fundamentalism, Dick Cheney says, is an existential problem. In 2005, a US Senator said bioterrorism was the biggest existential problem. Blair has done it, too. In a brilliant essay in the New York Times and the International Herald Tribune, William Safire dismembered these linguistic terrorists. In the Garner tapes, Kennedy says these new-fangled words (everything �-ize�, for example, �inventivize�) are like flashy neckties�very, very declass�.

The videos have been online since January, and are part of a work in progress as Garner continues to interview judges, lawyers and writers in his one-man crusade for greater clarity in legal writing. Garner and Scalia have co-authored a forthcoming book titled �Making Your Case: The Art of Persuading Judges.� This should be interesting, if a little na�ve, particularly if one has to deal with Scalia.

Whether these interviews actually do have a collective cohesion (leave aside a unified institutional wisdom) is hard to say. What does seem to come through is the judges� thinly-concealed impatience for anyone�s word but their own, and a savage intolerance for even the most venial linguistic or grammatical peccadillo.

In one of the segments, Garner asks Kennedy to identify a good writing style for lawyers. Playing to the gallery, Kennedy says,

�Lucid. Cogent. Succinct. Interesting. Informative. Convincing.�

This is no formula for anything. What is lucid to one judge is obtuse to another. An argument that one finds cogent another might call diffuse. And interesting, surely, is a very, very personal preference.

Ironically, these six elements that Kennedy says are the hallmark of a good writing style don�t always figure in the Court�s own opinions.

Especially convincing.

Especially recently.

Reports by Gautam Patel (so that our HonSec not be deemed to bear responsibility for anything in this email)

Rahul Chitnis
Honorary Secretary
Bombay Bar Association
Room No 57, 3rd Floor
Bombay High Court Building
M Kane Marg
Bombay 400032
Web: www.bombaybar.com
Email: honsec [@] bombaybar.com

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Justice KT Desai Centenary Memorial Lecture 2008: Soli J Sorabjee: "The Rule of Law--Its Dimensions and Facets"

2008-03-11T20:00:02Z

JUSTICE KT DESAI CENTENARY MEMORIAL LECTURE 2008

SOLI J. SORABJEE: "THE RULE OF LAW�ITS DIMENSIONS AND FACETS"

The Justice KT Desai Centenary Memorial Lecture 2008 will be delivered by Mr Soli J. Sorabjee, Senior Advocate and former Attorney General of India. Mr. Sorabjee will speak on The Rule of Law: Its Dimensions and Facets.

The lecture will be held on Monday, March 17, 2008 at 5:30 pm in the Central Court Room No.46, 2nd Floor, High Court, Bombay. The Hon'ble the Chief Justice, Mr Justice Swatanter Kumar will preside.

Mr. R.A. Dada, President of the Bombay Bar Association will provide the introductory remarks, and Mr. S.P. Thorat, President of the Advocates' Association of Western India, will propose a vote of thanks.

The lecture is organized by the Justice KT Desai Centenary Committee and is open to all.

Rahul Chitnis
Honorary Secretary
Bombay Bar Association
Room No 57, 3rd Floor
Bombay High Court Building
M Kane Marg
Bombay 400032
Web: www.bombaybar.com
Email: honsec [@] bombaybar.com

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Seminar on Judicial Accountability

2008-02-26T06:15:21Z

Seminar on Judicial Accountability

Judicial Accountability includes contempt of court, among other things. This seminar, organized by the Indian Association of Peoples' Lawyers (IAPL), is being held in the context of the controversy regarding some of the orders and judgments passed in the Delhi sealing case, and the arrest of four journalists from Midday (Delhi) for contempt of court.

Ours is a Parliamentary democracy with an executive, a legislature and an independent judiciary. The executive is accountable to the legislature; the legislature is accountable to the people by way of adult franchise. But to whom is the judiciary accountable?

This issue will be debated at the Seminar. Speakers at the seminar are:

Mr N Ram, Editor, Frontline;
Mr Aspi Chinoy, Senior Advocate;
Mr Prashant Bhushan, Senior Advocate;
Mr MP Vashi, Advocate

The seminar is open to all, without registration fees. An open discussion from the floor will follow the speakers.

Venue	YMCA Hall 12 N Parikh Marg Colaba Mumbai 400039
Date	Saturday, March 1, 2008
Time	2�5 pm

The IAPL is affiliated to the International Association of Peoples' Lawyers.

Rahul Chitnis
Honorary Secretary
Bombay Bar Association
Room No 57, 3rd Floor
Bombay High Court Building
M Kane Marg
Bombay 400032
Web: www.bombaybar.com
Email: honsec [@] bombaybar.com

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LegalPundits Demo

2008-02-21T23:00:12Z

LEGALPUNDITS DEMO

Legalpundits International Services Pvt Ltd offers a subscription-based online legal service facility at www.legalpundits.indiatimes.com.

Legalpundits is a premier legal services provider that aims to deliver these legal services with an emphasis on easy accessibility, quality and cost-efficiency.

The online facility features:

Central and State Bare Act with amendments, notifications, circulars, commentaries and analysis, forms, drafts, agreements, and articles covering 20 broad areas of Indian law including banking, corporate law, IPR, taxation, labour law, export-import laws and more.
Full text decisions of the Supreme Court from 1950 till date, all High Courts and Tribunals;
A search engine to general law and case law to facilitate quick and accurate research;
A library of over 1000 draft documents for ready reference
Daily updates of online content and weekly updates by email.

Legalpundits will conduct a demonstration of their software on Tuesday, February 26, 2007 at 5:15 pm in the Bar Association premises.

All temporary and permanent members (including those who have applied for temporary membership) are invited to the demo. Refreshments will be served.

Rahul Chitnis
Honorary Secretary
Bombay Bar Association
Room No 57, 3rd Floor
Bombay High Court Building
M Kane Marg
Bombay 400032
Web: www.bombaybar.com
Email: honsec [@] bombaybar.com

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Book Review: The Pursuit of Justice: Supreme Court Decisions That Shaped America

2008-01-30T20:00:13Z

THE PURSUIT OF JUSTICE: SUPREME COURT DECISIONS THAT SHAPED AMERICA

by Kermit Hall and John Patrick, Oxford University Press, Rs.895

More than any other group of individuals, �The Brethren��the men and women of the Supreme Court�exert an influence disproportionate to their number on the lives of ordinary citizens. This is as true of the Indian Supreme Court as it is of its older cousin, the Supreme Court of the United States. From personal freedoms and liberties to complex issues of education, taxation, the environment and even religion, the pronouncements of these courts alter the patterns and rhythms of daily life. Sometimes these alterations are swift and have a jagged edge; others are subtler. They are always pervasive. In matters of constitutional interpretation and in propagating their perceptions of liberty, fundamental rights and protection of freedoms, the Supreme Courts have been frequently accused of being too �activist�. These complaints invariably come from those who seek to curtail those liberties, rights and freedoms; but these cries of outrage have seldom checked the Supreme Court. Over the last 100 years or more in America, and, with the exception of one dark period, 50 years in India, the Supreme Courts of the United States and India have sided with the individual and the citizen in areas critical to the survival of a democracy.

Dworkin�s anguish in �The Supreme Court Phalanx� stems from his belief that the US Supreme Court is, today, subverting those very ideals, liberties, freedoms and rights that it has always protected and secured to the citizen. If only because of the way our own Supreme Court works, that kind of ideological sand-shifting is unlikely in India: with two� and three�Judge benches sitting simultaneously, as opposed to more sedate hearings by the entire court, it is infinitely more difficult for the court as a whole to change course. In contrast, the US Supreme Court is a more nimble ship; a single dominant individual, especially as Chief Justice, has both the time and the opportunity to plot the course he desires. On the other hand, to turn the behemoth of our Supreme Court in a particular direction is arguably beyond any one individual. As the events of the Emergency showed, it requires a hugely powerful external force to make that kind of course-alteration. Internal dissensions and protests do not make the vessel change tack, as we have very recently seen in the exchange between two benches regarding the role of the Supreme Court in public interest litigations.

But maritime metaphors when speaking of the present Supreme Court are very like the Sirens of Greek mythology, both seductive and dangerous. The shoals of judicial history are altogether more navigable, and The Pursuit of Justice is a wonderful sextant to American jurisprudence. To even begin to understand, say, Dworkin�s concerns, requires a historiographical familiarity with the many decisions that �shaped America�. These decisions and opinions are not always within reach; The Pursuit of Justice presents these in an accomplished, lively and eminently accessible manner.

The book is a survey of the thirty or so US Supreme Court decisions widely acknowledged to be the most influential. They cover issues such as judicial review (Marbury v Madison), free speech (Abrams v United States; Tinker v Des Moines, etc), desegregation (Brown v Board of Education), the freedom of the press (New York Times Co v Sullivan), the right to privacy (Griswold v Connecticut), the limits on police power during arrests (Miranda v Arizona), abortion (Roe v Wade), affirmative action (Regents of the University of California v Bakke), and come right up to judicial intervention in the political process (Bush v Gore)�the last also the subject matter of Alan Dershowitz�s scalding Supreme Injustice.

Uniquely, The Pursuit of Justice does not set out the full opinions of the Supreme Court. Instead, it introduces the background to the cases, summarizes the decision, and details the reactions to the opinion in question. The text is accompanied by many illustrations, photographs, lithographs, letters and comments that are otherwise not usually found in a book of cases. The chapter on Abrams v United States discusses the context of the issue before the court, analyses the opinion and also includes, separately, the dissent by Oliver Wendell Holmes, widely considered to be the finest defence of free speech by an American, ever. That portion of the dissent is preceded by a superbly concise potted biography of Holmes the man. Even more interesting, perhaps, is the reconstruction, based on notes made in 1965 by Justices William Douglas and William Brennan, of the conversation when the judges of the Supreme Court met in conference over Griswold. Here we get to read, as if in dialogue, what Chief Justice Earl Warren said; and the views of Justices Hugo Black, Tom Clark, Byron White, Potter Stewart, John Marshall Harlan II, Douglas and Brennan.

Television and the movies have made everyone the world over familiar with the recitation of Miranda warnings. These are the enduring legacy of one man, Chief Justice Earl Warren, in the 5�4 Miranda decision and, amazingly, this book has (page 161) a reproduction of Warren�s handwritten notes as he began to formulate his thinking. Another delectable photograph is that of the infamous �butterfly ballot� of the Bush-Gore Florida election contest. That ballot paper�s format is so utterly idiotic that it almost seems designed for dispute.

A book is often only as good as what precedes and succeeds its principal content. The introduction, �The Supreme Court as a Mirror of America� explains the central role that the US Supreme Court has played in the development of that country. The epilogue, �We Are All Slaves of the Law�, is even better, and portions of it are worth extracting:

�The pivotal Supreme Court cases described in this book remind us that our constitutional system places change and continuity in constant tension. And that is just what the framers of the Constitution intended. They wanted the Constitution to be difficult to change because its predictability is essential to its legitimacy ��

�The Court has changed its views on critical matters, as the cases in this volume so often remind us. And when the Court has changed its mind, it has produced some of the most memorable moments in the history of the nation. We might prefer a Supreme Court founded on the idea of original intent, that is, a Court that constantly refers to the wishes of the framers of the Constitution. But its most important decisions reveal that while the justices have kept an eye to precedent and the work of the Philadelphia convention, they have also been willing to gaze decisively into the future when confronted with new realities ��

�The justices who interpret [the Constitution�s] words are its high priests; their opinions shape the contours of American life.�

�There is no doubt that the Supreme Court�s principal role has been to remind us that the law generally and constitutional law in particular cannot be a game of roulette.�

�The Roman philosopher Cicero summed matters up nicely with the observation that �We are all slaves of the law that we may enjoy freedom.� the frames of the Constitution, schooled as they were in the Classics, knew and appreciated this basic insight. One of the most important reasons they created the Court�and one of the most important reasons it has played such a critical role in our history�is that it has maintained the concept of the rule of law as an essential, if sometimes not fully realized, element of our liberty.�

Kermit Hall is at the University at Albany. John J. Patrick is at Indiana University (Emeritus).

Book Review by Gautam Patel, whose views are of course his own (who else would want them?) and not those of the Association.

Read the review online.

Rahul Chitnis
Honorary Secretary
Bombay Bar Association
Room No 57, 3rd Floor
Bombay High Court Building
M Kane Marg
Bombay 400032
Web: www.bombaybar.com
Email: honsec [@] bombaybar.com

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High Court Case Management System

2008-01-25T20:50:07Z

High Court Case Management System

The Bombay High Court proposes to introduce a Case Management System. This requires individual Advocates, advocates�s firms and solicitors� firms to submit essential information, included in a special form.

The online form is an Adobe PDF file. You will need the latest Adobe PDF Reader to use this file.

How to use the online form

Download and save the form to your hard disk. Open it in Adobe PDF Reader. The form is specially designed so that you can fill it in from within the Adobe PDF Reader, typing in the relevant information. Once you have typed in all the information, print it and deliver it to the Bar Association staff.

How will this information be used?

The information supplied will be entered into the High Court�s central computerized database, and will be used to send emails and correspondence directly to Advocates with regard to the status of the matters they file in the High Court.

When will this system be operational?

The High Court proposes to start using the Case Management System at the earliest. Advocates are requested to furnish this information no later than by January 31, 2008.

Do firms have to fill in a separate form for each advocate in the firm?

No; firms must fill in only ONE form and give the OS Registration Number of the firm. For firms, the enrolment date and number are evidently inapplicable. Only individual (sole practitioners) are required to submit the enrolment date and enrolment number.

Contact Numbers to be provided

Only ONE email address, phone number and mobile number should be supplied.

Rahul Chitnis
Honorary Secretary
Bombay Bar Association
Room No 57, 3rd Floor
Bombay High Court Building
M Kane Marg
Bombay 400032
Web: www.bombaybar.com
Email: honsec [@] bombaybar.com

Subscribe to LOQUITUR via email by entering your email address below: