Often, advocates do not pay attention to the observations of the judges or avoid answering their queries. This irritates a judge more than anything. The observations of judges indicate their thinking on the case, where it is going, what they want from the advocates and what line of argument they should pursue, writes JUSTICE YATINDRA SINGH, former chief justice of the Chhattisgarh High Court.
COUNSELS must keep in mind, queries from judges are often on a point that they do not understand or arise when they want an advocate to understand the fallacy of their argument. Understanding such observations improves a lawyer’s chances of winning the case, while a satisfactory answer to queries takes one far ahead in the profession. The best thing to do is answer the question the judge asks immediately.
Nevertheless, sometimes it is good advocacy to delay the answer. If it so happens, then the right thing is to acknowledge it and after adding the appropriate form of address mention as follows:
- ‘The query is important, but may I finish the point that I am elaborating on? It will answer the query.’
- ‘May I answer the query after finishing the point that I am elaborating.’
- ‘I don’t have the answer to the query just now. May I answer it after obtaining instructions or studying the point?’
In these situations, the judges will grant permission and will also have the satisfaction that they are not being ignored. I would like to elaborate with an incident from the court of Justice Hriday Nath Seth—but first, his brief biographical sketch.
Justice SN Seth was the father of Justice Seth. He was also a judge of the Allahabad High Court but died in office on 26 January 1951. On this day, a traditional match is played between the bar and the bench at Allahabad.
Also read: The Ones That Didn’t Make It to NYT: The Valiant Bar and Bench During Indira’s Emergency
During such a match in 1951, a message came about his sad demise due to a heart attack. The match was abandoned and from the following year, it came to be known as the Justice Seth Memorial Match.
Justice Hriday Nath Seth was educated at Allahabad. After getting a law degree, he started practice before Allahabad High Court. He was appointed the Assistant Government Advocate in 1954, a Junior Standing Counsel in 1960 and standing counsel in 1965. He was appointed Additional Judge of the Allahabad High Court in July 1969 and was made permanent in August 1972. He was elevated as the Chief Justice of the Punjab and Haryana High Court in 1986, before he retired in October 1987.
Justice Seth was a conservative judge and did not grant interim orders easily. But during the Emergency, he stood tall, was liberal, and granted bold orders for the detenues. He made the Indian judiciary proud.
Shanti Bhusan was his class fellow. In his tribute, he wrote, “Extremely courteous and soft-spoken, Justice Seth was a judge in the classical mould and had good knowledge of all laws, be it civil, criminal or constitutional.”
Now, let us talk about the incident related to a judge’s question. I passed out from law school in 1973 and practised in the lower courts at Banda and Kanpur for two years. I shifted to Allahabad after the imposition of an internal emergency.
Immediately thereafter, my father, Virendra Kumar Singh Chaudhary, a senior advocate at the High Court, was falsely arrested under Defence of India Rules (DIR). He was granted bail but was preventively detained under the Maintenance of Internal Security Act (MISA), even before he could come out of jail.
Also read: The Judge who unseated a Prime Minister
A habeas corpus petition was filed for his release. The case was taken up by the bench of Justice HN Seth and Justice GD Srivastava. Jagdish Swarup, former Solicitor General of India, was our advocate. SN Kackkar (later Solicitor General of India and Union Law Minister) was the Advocate General of Uttar Pradesh at that time.
He raised a preliminary objection that given the suspension of the right to move the court to enforce Articles 14, 19, 21 and 22, a habeas corpus petition was not maintainable.
On the earlier occasion, the right to move the court for enforcement of Articles 14, 19, 21 and 22 was suspended but it was partial: this time it was in toto. There was no easy answer to it.
During arguments, Justice Seth wondered if habeas corpus against private detentions, namely of wives by their parents, or for custody of children, would also be not maintainable. The Bench decided to refer the case to a larger bench and made the debate open to all members of the bar. However, the query remained unanswered.
I researched the point and also addressed the court. The Supreme Court in Vidya Verma vs Dr Shiv Naranain Verma held that a habeas corpus under Article 32 against the private detention of a woman was not maintainable.
The court opined that Article 21 is not available against private persons. As soon as I referred the case and the bench read it, Justice Seth’s face lit up. He smiled and said, “Your argument is that a case of illegal detention is like private detention and habeas corpus is maintainable.”
In the referring order, the court observed, “In the end, Sri Yatindra Singh, who is also appearing on behalf of the petitioner, contended that a detention order made by any executive authority without the authority of law or in contravention of the provision of the Statute authorising detention is as good as detention made by a private individual.
In Vidya Verma vs Dr Shiv Naranain Verma, the Supreme Court ruled that the violation of a right to personal liberty by a private individual is not within the purview of Article 21. Therefore, where a person’s right to personal liberty is infringed by a private individual he has to seek his remedy under ordinary law and not under Article 32 of the Constitution.
The counsel, therefore, urged that in a case where the substance of a complaint made by a person is that he is being detained at the instance of an individual, without the authority of a valid law, his complaint falls completely outside the ambit of Article 21.
The suspension of the rights of a person to move a court for the enforcement of a right under Article 21, therefore, cannot affect the right of a person to seek his remedy against such deprivation of personal liberty. According to him, this is precisely what is being sought to be done in the present writ petition and the preliminary objection deserves to be rejected.”
We won the case before a five-judge full bench of the Allahabad High Court (Virendra Kumar Singh Chaudhary vs DM Allahabad 1976) but lost it before the Supreme Court (ADM Jabalpur vs Shiv Kant Shukla, 1976).
Later, this argument was utilised by a bench of Justice BN Katju and Justice MM Murtaza Husain in Tej Bahadur Singh vs State of UP, 1977, to allow a habeas corpus against illegal detention by the State, though it was not detention under MISA. This was the only case allowed by the Allahabad High Court.
Also read: An Outrageous Emergency-Era Supreme Court Judgment That Still Stands, Technically
Justice GD Srivastava was promoted from the district judiciary. He retired early. I do not remember arguing any other case before him but Justice Seth continued to be a judge at Allahabad until he was elevated as the Chief Justice of Punjab and Haryana High Court in August 1986. He always gave me a patient hearing, respected my submissions, and I do not remember losing any case before him.
Perhaps the first impression is the last one and this was because I had listened carefully, researched the query, and satisfactorily answered it as soon as I got the opportunity.
So, pay attention to the queries and observations of the judges: answer or acknowledge the query; make an appropriate line of argument and avoid irritating the judge.
(Justice Yatindra Singh is a former chief justice of the Chhattisgarh High Court and a senior advocate in the Supreme Court of India. The views expressed are personal.)