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Of contemptuous courage

Of contemptuous courage

The legal profession, especially the practice of law in courts, unlike many others, still depends a great deal on the system of apprenticeship. Young advocates join a practice and learn the tricks of the trade from their seniors. This system is also supposed to impart the values that are necessary for a quality Bar: courage, integrity, and professionalism–things that are not easily taught in books.

It was said of Motilal Setalvad that as long as he walked the courts, the Bar did not require a Code of Conduct; they need only look at his! But then these are not the best of times, and so we need to turn back to a legend long gone by: the story of Govind Swaminadhan (the former Advocate General of Tamil Nadu, 1909-2003) facing contempt before the Madras High Court!

Justice E.E. Mack had been appointed presiding judge of the Industrial Tribunal. An editorial appearing in The Mail about industrial adjudication in general and the process followed in the process of settlement of disputes between the workers and management of Amalgamations Limited, caused the issuance of a contempt notice against the editor of the newspaper.

Govind Swaminadhan Photograph courtesy Mr. Swaminadhan's family.
Govind Swaminadhan
Photograph courtesy Mr. Swaminadhan’s family.

Mr. Swaminadhan, appearing for the editor, took the stand that Justice Mack could not exercise the powers of contempt given to him as a high court judge while presiding over the Industrial Tribunal. He therefore, flatly refused to argue any questions of law and jurisdiction. Justice Mack’s sarcastic reply was: “I am myself wholly unable to follow by what process of metabolism, I become emasculated of the inherent powers to punish for contempt when I sit in the Special Industrial Tribunal and regain them when I go back to the High Court.” In his mind, he had no doubt that he possessed the powers of a high court judge even when he sat on the Industrial Tribunal.

Mr. Swaminadhan’s persistence however, caused Justice Mack to take the unusual step of issuing contempt notice against the counsel for the contemnor! Mr. Swaminadhan responded by filing a writ petition in which he made Justice Mack a party and prayed for quashing of the notice. The Chief Justice admitted the matter.

A few days later, Mr. Swaminadhan was appearing before Justice Mack in the High Court of Sessions as the State Prosecutor. The exchange between counsel and judge is a fascinating example of conduct. Justice Mack told Mr. Swaminadhan that it would be better if he recused himself from prosecuting any cases before the Sessions Court during the present term. Mr. Swaminadhan replied that he felt no embarrassment in discharging what he considered his duty as State Prosecutor, and would continue to do so. Justice Mack replied that the counsel was “permitted to prosecute.” This was Govind Swamindhan’s Erskinian moment. All counsel will do well to remember his befitting response.

I wish to state that there is no question of being permitted. The Bar has a right and can appear in any case it chooses to do so and no Judge has any power to stop a member of the Bar from appearing before him. Your lordship is probably not aware of that.

One must keep in mind that this incident took place in 1954, before Section 30 of the Advocates Act, 1961 was even introduced on the statute book. Anyhow, the section was notified only in 2011!

When Mr. Swaminathan was threatened with contempt for a second time and asked to keep quiet, he continued:

I am not in the habit of being threatened by the Court. I shall now continue the Session’s case.

Three days later, Justice Mack found Govind Swaminadhan guilty of contempt and fined him Rupees One thousand to be paid in three days, failing which he was to go to the penitentiary until the fine was paid, for a period of one month. Since the High Court raised a question on maintainability in appeal, the matter was taken to the Supreme Court. Justice Chandrashekhara Iyer, who originally hailed from Madras, observed in open court that it was impossible to believe that “Govind” could ever have intended any disrespect to the Court. The matter was summarily disposed of and the conviction for contempt was set aside.

When he refused to join a call for a strike by the local lawyers’ association on the ground that a lawyer’s first duty was to the client from whom he had taken fees, his daughter told him that he had the luxury of being honest and ethical because of the class privileges and the status that he enjoyed, and most people in India could not afford to be honest if they wanted to survive. While acknowledging this, he added that, “since I have no excuse to be dishonest, there is no way I can clear it with my own conscience.” Many of us too, don’t!

This week features Govind Swaminadhan’s 102nd birth anniversary and his eighth death anniversary. We would do well to remember this gentle giant of the Madras Bar, who in the words of one of his juniors, “sensitised human relationships”.

 

(Suchindran B.N. is an advocate at the Madras High Court.)

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