An essay on Buddha and Karl Marx -B. R. Ambedkar-1954

The Russians are proud of their Communism. But they forget that the wonder of all wonders is that the Buddha established Communism so far as the Sangh was concerned without dictatorship. It may be that it was a communism on a very small scale but it was communism without dictatorship a miracle which Lenin failed to do.

B. R. Ambedkar-1954

Introduction

  1. The Creed of the Buddha
  2. The Original Creed of Karl Marx
  3. What survives of the Marxian Creed
  4. Comparision between Buddha and Karl Marx
  5. Means
  6. Evaluation of Means
  7. Whose Means are More Efficacious ?
  8. Withering away of the State

Buddha or Karl Marx

A comparison between Karl Marx and Buddha may be regarded as a joke. There need be no surprise in this. Marx and Buddha are divided by 2381 years. Buddha was born in 563 B.C. and Karl Marx in 1818 A.D. Karl Marx is supposed to be the architect of a new ideology-polity—a new Economic system. The Buddha on the other hand is believed to be no more than the founder of a religion which has no relation to politics or economics. The heading of this essay “Buddha or Karl Marx” which suggests either a comparison or a contrast between two such personalities divided by such a lengthy span of time and occupied with different fields of thought is sure to sound odd. The Marxists may easily laugh at it and may ridicule the very idea of treating Marx and Buddha on the same level. Marx so modern and Buddha so ancient! The Marxists may say that the Buddha as compared to their master must be just primitive. What comparison can there be between two such persons? What could a Marxist learn from the Buddha ? What can Buddha teach a Marxist ? None-the-less a comparison between the two is a attractive and instructive. Having read both and being interested in the ideology of both a comparison between them just forces itself on me. If the Marxists keep back their prejudices and study the Buddha and understand what he stood for I feel sure that they will change their attitude. It is of course too much to expect that having been determined to scoff at the Buddha they will remain to pray. But this much can be said that they will realise that there is something in the Buddha’s teachings which is worth their while to take note of.

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The Decline and Fall of Buddhism-B. R. Ambedkar-1954

CHAPTER 9

The Decline and Fall of Buddhism.

The disappearance of Buddhism from India has been a matter of great surprize to everybody who cares to think about the subject and is also a matter of regret. But it lives in China, Japan, Burma, Siam, Annam, Indo-China, Ceylon and parts of Malaya-Archipalego. In India alone, it has ceased to exist. Not only it has ceased to live in India but even the name of Buddha has gone out of memory of most Hindus. How could such a thing have happened? This is an important question for which there has been no satisfactory answer. Not only there is no satisfactory answer, nobody has made an attempt to arrive at a satisfactory answer. In dealing with this subject people fail to make a very important distinction. It is a distinction between the fall of Buddhism and the decline of Buddhism. It is necessary to make this distinction because the fall of Buddhism is one, the reasons for which are very different from those which brought about its downfall. For the fall is due to quite obvious causes while the reasons for its decline are not quite so obvious.

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Classification of Legal rules: Sir Henry Sumner Maine

CLASSIFICATIONS OF LEGAL RULES

Almost the first thing which is learnt by the student of Roman law is, that the classical jurists of Rome divided the whole body of legal rules into the Law of Persons, the Law of Things, and the Law of Actions. Although, however, his studies, as law is now taught amongst us, may soon introduce him to some vehement disputes as to the meaning of this classification, he may belong in becoming alive to the extent and importance of the literature to which it has given birth. It would seem, in fact, that in the seventeenth century, which was a great juridical era, theories of legal classification took very much the place of those theories of law reform which so occupied the minds of the last generation of Englishmen. The continuous activity of legislatures is an altogether modern phenomenon; and, before it began, an intellect of the type of Bentham’s, instead of speculating on the possibility of transforming the law into conformity with the greatest happiness of the greatest number, or with any other principle, speculated rather [363] on the possibility of rearranging it in new and more philosophical order. The improvement in view was thus rather a reform of law-books than a reform of law. The most extreme example of such theories is, perhaps, to be found in the attempt of Domat to distribute all law under its two ‘great commandments’ as set forth in the twenty-second chapter of St. Matthew’s Gospel—love to God and love to one’s neighbour. But on the whole, the arrangement in which the compilers of Justinian’s ‘Institutes’ followed Gaius, distributing law in Law of Persons, Law of Things, and Law of Actions, became the point of departure for theories of legal classification. Its history has been not unlike that of several equally famous propositions. After long neglect, it came to be regarded as an expression of absolute truth, and an essential and fundamental distinction was assumed to exist between the three great departments into which the Romans divided law. English jurisprudence was, no doubt, very little affected by this assumption, but English lawyers occasionally come across the inferences from it when they have to deal with Private International law, or, in other words, with the conditions upon which one community will recognise and apply a portion of the jurisprudence of another. At a later date, certain difficulties were observed in the rigorous application of the Roman doctrine, and much ingenuity was expended in removing them or explaining them away. Finally, it was pronounced to be theoretically untenable, and only deserving of being retained on account of its historical importance. According to the general agreement of modern writers on jurisprudence, the Roman distribution of law into Law of Persons, Law of Things, and Law of Actions must be regarded as now exploded.

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Pressure Groups, Special Interests, and the Constitution: James M. Buchanan 1962

Perhaps the clearest answer offered was … by Mr. Bane … there is no public interest in the sense of being an interest of the whole public. There are only particular interests…. The panel did not accept this solution, and Mr. Bane did not defend it.

… Mr. Larsen asked whether it was not true that the means of obtaining the objectives, rather than the objectives themselves, was the issue…. Perhaps the process, the means of compromise and agreement, are themselves a large part of the public interest.

—Major Economic Groups and National Policy, The American Round Table, Digest Report

In large political units the institutional manifestation of the active promotion of economic interest is the pressure group. The reason for the very existence of such groups lies in their ability to promote and to further, through the political-choice process, the particular functional interests represented. The emergence of such groups to positions of dominant importance during the last half century has been one of the most significant developments in the American political scene. This fact, which can no longer be hidden from view or considered as an aberration to orderly political process, has understandably weakened the predominance of the traditional model of democratic choice-making institutions. In the face of observable pressure-group activity with its demonstrable results on the outcome of specific issues presented and debated in legislative assemblies, the behavioral premise that calls for the legislator to follow a selfless pursuit of the “public interest” or the “general welfare” as something independent of and apart from private economic interest is severely threatened. Empirical reality must have its ultimate effect on analytical models, even if this reality contains implications about human behavior that scholars with strongly held ethical ideals find difficult to accept.

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Financial Stability in India

Introduction:

The global economy confronted a number of uncertainties – a delay in the Brexit deal, trade tensions, whiff of an impending recession, oil-market disruptions and geopolitical risks – leading to significant deceleration in growth. These uncertainties weighed on consumer confidence and business sentiment, dampened investment intentions and are likely to remain a key drag on global growth. Predictably, lower interest rates and easy monetary policies are boosting leverage globally, with the indebtedness of emerging market (EMs) governments and households showing a distinct increase, besides supporting asset prices and capital flows to EMs.

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Central Banking and Innovation: Partners in the Quest for Financial Inclusion

Law Library

Introduction: Why is financial inclusion important?

Financial inclusion provides access to financial services that are the key to participating in a modern economy. These include payments, credit, insurance, and savings. Without access to efficient payment systems, business grinds to a halt. A modern economy cannot work without efficient, reliable and cost-effective payments.

Credit allows resources to be used more optimally over time. Credit from within the formal financial sector is typically cheaper and has better terms than informal credit, with all the problems arising from lender oligopolies and doubts about creditworthiness. In credit markets that are subject to such problems, market power can become entrenched. Black market lenders often run as monopolies and charge exorbitant interest rates. Informal markets are also incapable of providing insurance products, which can serve as a cushion against shocks such as bad harvests, illness, or the death of the main wage earner.

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Freedom of Speech and Crime of Seditious Libel

Freedom

Freedom of Speech

Where a law purports to authorise imposition of restrictions on a fundamental right of language wide enough to cover restrictions both within and without the limits of constitutionality

Constitutional Mechanism: liberty of the press

The Constitution of India contains no express declaration in favour of the freedom or liberty of the press, and the reason or one of the reasons for this omission may, I imagine, be that in no period in history and in no country in the world has the press been free, in the sense that the keeper of a press may print and publish any matter he chooses without thereby incurring any risk of punishment. The invention of printing led to the propagation and dissemination, on a far wider scale than had hitherto been possible, of ideas which were subversive of the existing order in Church and State. In 1501 Pope Alexander VI published a bill against unlicensed printing. After the Reformation and the break up of the Holy Roman Empire, the sovereigns of the national states which came into existence, took similar steps to control the press. In England, until 1695 no book or pamphlet could be printed without the imprimatur of the Crown licensor, and the printers and authors of books or pamphlets, which had been issued without it, were liable to be brought before special Court such as the Star Chamber, and most severely punished. Although in 1695, when the House of Commons declined to continue the Licensing Act, the press in England was emancipated from direct state control, in other countries on the Continent of Europe a system of pre-censorship continued until long afterward. In 20th century Europe, in more than one country, the press, on its political side at least, has again been subjected to strict Government control. In Fascist Italy, the responsible editor of every newspaper had to be approved by the prefect of the province. A prefect might warn a newspaper editor who published matter or news to which he took exception and might revoke his recognition of an editor who had been so warned twice in a year. In Soviet Russia, there is no independent press, and any person venturing to propagate ideas, which are, in any way, inconsistent with the communist creed, are liable to the most severe punishment. When we speak of the freedom or liberty of the press, we mean that freedom no doubt a very substantial freedom but nevertheless, a freedom which is definitely limited and circumscribed which is enjoyed by the press in the English speaking world.

In 1784 in the celebrated case of Rex v. Dean of St. Asaph (1784) 3 C T. R. 431 Lord Mansfield said:

The liberty of the press consists in printing without any previous license subject to the consequences of the law.

Now, in England and in America, it is a crime to print and publish matter of certain kinds. It is obvious that the existence of such laws and the consequent dread of punishment must act as a deterrent on persons, who hold certain ideas or opinions, seeking to propagate and disseminate them. Moreover under the law of libel, including the law of seditious libel, not merely is the author of the libel responsible. Responsibility also extends to the publisher and printer and, indeed to every vendor of the publication. As ordinarily, a writer must find a publisher, the publisher must employ a printer, and the printer, in his turn must rely on booksellers to sell the book or pamphlet which he prints, it is clear that the possibility of a writer succeeding in communicating to any large body of the public ideas or opinions the dissemination of which the law regards as culpable is small.

In India, until 1910 the press was in very much the same position as it was in Great Britain and the Dominions and in America. In 1910 the Press Act, however, empowered the executive to demand security from the keeper of a press and the publisher of a newspaper, and in certain circumstances, to declare such security forfeited. The Press Act of 1910 was repealed in 1922, but in 1931 was re-enacted in a modified form. The statute of 1981 was described as “An Act to provide against the publication of matter exciting to or encouraging murder or violence”. In the following year, it was amended in certain particulars by the Criminal Law Amendment Act, 1982, one such amendment being in the title which was altered to “an act to provide for the better control of the press”. The question that  could be raised whether, in consequence of Article 19(1)(a) in the Constitution, it is still open to the executive to require the keeper of a press, which has published matter of the kind referred to in certain Clauses of Press (Emergency Powers) Act, 1931, to deposit security. The subject of requiring security is, it is clear to ensure that the keeper of a press, who prints matter of a certain kind, may not evade liability or escape punishment. Such also, it may be observed, is the object of the law which requires the printer of every book or pamphlet to exhibit his name and address on the first or the last page of the book or pamphlet. In England, until the law so provided persons, who were labeled, very often found it a matter of the greatest difficulty to ascertain who was responsible, and in order to enable them to do so, general search warrants had to be issued. There can, of course, be no doubt that a system under which the keeper of a printing press can be required to deposit security is a system of control over the press, but the control so exercised is substantially the same kind of control as is exercised by making it a crime to publish matter of a certain kind. The author of the book or pamphlet, which contains or may appear to contain a libel on an individual or a seditious libel, will ordinarily find it difficult to get it printed which is what the law intends, and he may find it more difficult to get it printed by a printer who has been required to furnish security than by a printer who has not yet been required to do so, which again is what the law intends. Is there, however, in principle any objection to the exercise of this further measure of control by the State? Professor Dicey in his Law of Constitution, 8th Edn., p. 244, observes:

No sensible person will argue that to demand deposit from the owner of a newspaper or to impose other limitations upon the right of publishing periodicals is of necessity inexpedient or unjust.

A fortiori this observation applies to the keeper of a printing press, which publishes leaflets or pamphlets of the kind we are now concerned with. It is, and always has been, well settled both in England and in India that security may be taken from a person who has committed certain crimes or who, having committed a certain crime, is thought to be likely to commit that crime again. As will appear later, a person who publishes matter of the kind referred to in Clauses (a) and (b) of Section 4 (1), Press (Emergency Powers) Act, 1981, commits a crime. It is true that security is, in the first instance, demanded by the executive but against its order there is a right of appeal, and the appeal must be heard by a Bench of three High Court Judges. There is, in substance, in such a case at least no serious departure from what Professor Dicey calls the rule of law. It is also true that, in recent times, so far as I can ascertain, security has never in England been demanded from a printer. But security has, on occasion, been demanded from persons proposing to address public meetings, Wise v. Dunning (1902) 1 K. B. 167 : (71 L.J. K. B. 165). In other words, the taking of security has sometimes been used to fetter the expression of opinion.  Article 21 of the Constitution is so drawn as to preserve to the Courts the power to demand security under chap. VIII, Criminal P.C. Why should it be supposed that the Constituent Assembly intended that the practice of requiring the keeper of a printing press to deposit security in order to prevent the publication of seditious libels should cease-? In construing the relevant provisions of the constitution, it is, in my opinion, necessary to keep any such a priori assumption out of one’s mind. Indeed if any assumption at all is to be made, it ought, I think, to be an assumption the other way.

Constitutional Safeguard of freedom of speech and expression

Article 19(1)(a) of the Constitution provides that all citizens shall have the right to freedom of speech and expression. It is clear that the word “expression” is used by way of amplification of the word “speech” which immediately precedes it. Subject to what is contained in Article 19(2), Article 19(1)(a) renders Immune from punishment not merely the individual citizen who gives expression to his opinions in conversation or at a public meeting, but also to the journalist, the writer, the printer, the sculptor, the dramatist, and, in short, every kind of creative artist. The editor of a newspaper, who moulds or is in a position to mould public opinion, may perhaps come within the purview of the article, but in my opinion, the keeper of a printing press quite certainly, does not. Printing may sometimes be an art, but the generality of printers do not give expression to ideas and opinions of their own. They are merely engaged or employed by other persons to give a wider publicity, than could otherwise be achieved, to ideas and opinions of’ theirs. Indirectly, no doubt, the article may operate in such a way as to prevent certain restrictions being imposed on printers. It is, for instance, not open to Parliament to enact a law that, before printing any book or pamphlet, which be may have been employed to print, the printer shall submit it for pre-censorship. The reason, however, why such a law would now be an unconstitutional law is not that it imposes a restriction on the printer, but that, in substance, it is a restriction imposed on the writer or author. It is well known that the Constituent Assembly examined the constitutions of other countries. Now, there are constitutions in which not merely the right to speak, write and publish, but also the right to print is conferred on all citizens. An instance in point is Article 18 of the Belgium Constitution of 1832 which is reproduced in Dicey’s law of the Constitution, Edn. 8, p. 234, and the constitutions of some of the competent States in the United States of America (vide Cooley’s Constitutional Limitation, vol. 2, p. 876). I refer particularly to the Belgium Constitution of 1832 as, not only does it confer on every citizen the right to print, but also prohibits, the taking of security from the keeper of a printing press. It will be observed that, under it, the keeper of a printing press is immune from punishment if the author of the book or pamphlet, which he has printed, is a person who is known and who is domiciled in Belgium. So long as the keeper of a printing press takes the precaution of ascertaining who the author is and that he is domiciled in Belgium and can, in consequence be made liable for the publication of matter which offends against the law, the printer is no more responsible than is the colourman who supplies the canvas and paints with which an artist paints an obscene picture. The article appears to have been drawn in such a way as to enable writers and authors to obtain without any difficulty the services of a printer and so disseminate to the widest possible extent their opinions and ideas. In other words, the right conferred on printers was, in substance, a right conferred on writers and authors. As, however, I have already pointed out it is an integral part of the system of control, albeit indirect control over the press which obtains in the English speaking world that the printer shall be as much responsible at law as is the writer or authors I am unable to read into the word “expression” in Article 19(1)(a) any implied right in writers and authors to obtain the services of printers to enable them to reach the widest possible public. In other words, I can find nothing in the five words contained in this article which leads me inevitably to the conclusion that the power [to demand security from the keeper of a printing press is a power which the executive may no longer exercise.

If this is the correct interpretation of Article 19(1), there is an end of the matter. But if it is assumed , for the sake of argument, that the article does, in fact, confer on the keeper of a printing press a right to print whatever he may choose, and proceed to consider whether the taking of a deposit is not one of the restrictions which may be imposed on the exercise of this fundamental right under Article 19(2). It is clear that the principle object of the Constituent Assembly in enacting this article was to define the limits within which Parliament might, and beyond which Parliament might not, make the dissemination and propagation of ideas and opinions a crime. More particularly, the Constituent Assembly would seem to have restricted within narrower limits the crime, which is ordinarily known as the crime of seditious libel; and given to the citizens of India a right to criticise the Government, which is at least as ample as that enjoyed by the citizens of the United States of America and more ample than has ever been enjoyed by the citizens of Great Britain and the Dominions of the British Commonwealth, If, however, this had been the sole object of the Constituent Assembly, it would not have used the language which it did. The expression “law relating to libel” cannot possibly be construed as connoting nothing more than a law which makes libel punishable. If that were so the provisions of law which requires the name and address of the printer to appear on every book and pamphlet and requires the name of every editor, printer and publisher of a newspaper to appear on every copy of a newspaper would have ceased to be a valid law. For the reasons which I have already indicated, these provisions are part of the law relating to libel. By a parity of reasoning it must, I think, be concluded that the provisions contained in Section 4 (1)(a) and (b), Press (Emergency Powers) Act, 1931, which enable security to be demanded from the keeper of a printing press, are part of the law relating to seditious libel. In order to prevent any misunderstanding, I wish at this stage to point out that Clauses (e) to (i) in Section 4 (1) of the Act enable security to be demanded in a wide variety of circumstances. If the construction which I am myself disposed to put on Article 19(1) is wrong and if printers have a fundamental right to print any matter they may choose, it may well be that, in certain of these circumstances the demand for security can no longer be supported. But the narrow point which I have to decide here is whether security may be demanded from the keeper of a minting press who has published matter of the kind referred to in Clauses (a) and (b) which are severable from the other clauses. In construing these clauses, it is permissible and indeed necessary to employ the method of historical investigation.

Fundamental Right of Language

The Press Act of 1910 was enacted in order to combat terrorist or revolutionary crime. It was repealed in 1922, because such crime had become far less common. It was re-enacted in 1931, because there had been a recrudescence of such crime, and in the following year it was enlarged and modified in consequence of the non-co-operation movement. Although the promoters of this movement desired it to be peaceful and non-voilent movement, certain persons took advantage of it to commit a violent crime in order to effect a revolution and overthrow the existing system of Government. Bearing this in mind, it seems to me quite clear that Clause (a) of Section 4 (1) was aimed at political assassination and the commission of violent crimes intended to overthrow or weaken the State and that Clause (b) was aimed at those who glorified such crime and, more particularly preached the doctrine that in certain circumstances and in order to achieve certain ends, murder was no crime at all.  In the Queen v. Most (1881) 7 Q.B.d. 244 : (50 L.J. M. C. 113) one Johann Most was indicted for having published an article in a newspaper extolling the assassination of the Empress of Russia and holding it up as an example to revolutionaries throughout the world. Johann Most was tried and convicted for having published a seditious libel, but was also tried and convicted under 24 and 25 vict. caput 4, which made it an offence for persons to “conspire.,, confiderate and agree to murder any person” the reason being that the punishment provided for that crime was a more severe punishment than could be inflicted for the crime of seditious libel. It was contended that Johann Most could not be convicted as it was not shown that he had come into direct contact with any of the persons who read the newspaper and could not therefore, be said to have incited them. Much reliance could be placed on two decisions of the-Supreme Court Romesh Thappar Vs. The State of Madras, and Brij Bhushan and Another Vs. The State of Delhi. The orders, complained of in these cases were orders prohibiting the entry into or the circulation, sale or distribution in the State of Madras in the one case and in the State of Delhi in the other of two newspapers. In Ireland, front time to time power has ‘been conferred ore the executive to seize and destroy newspapers-or their publications containing seditious libels, A power of that kind is in effect a power of pro-censorship, and, under the Indian Constitution, cannot be conferred on the executive except in periods of emergency. The power conferred by the State of Madras and the State of Delhi, namely, a power to seize a certain newspaper,, whether it contained matter amounting to a seditious libel or not was a still wider power and one which is clearly prohibited by the Constitution. Pre-censorship and still more what done or authorised to be done in Madras and Delhi is a direct invasion of the fundamental right of the editor and journalist who used the columns of these newspapers to give expression to their opinions. What has been done here does not amount to an invasion of the fundamental right of the author of this pamphlet or leaflet. It is true that the press itself has been subjected to a further measure of control, but a control of exactly the same kind as is already imposed by the existence of a law which makes seditious libel a crime. If it is a restriction on any fundamental right possessed by the printer – and I do not myself think he has any it is a restriction permitted by Article 19(2). I” have read and re-read the judgments of the-Supreme Court, and I can find nothing in them myself which bears directly on the point at issue and leads me to think that, in their opinion, a restriction of this kind is no longer permissible. I do not think it necessary to refer to any of the observations of their Lordships except one which occurs towards the end of the judgment which I do mention. Sastri J., there said:

Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable.

The Constitution of India has the peculiarity that, instead, of leaving it to Parliament to examine the statute book and repeal any law which infringes on a fundamental right, it imposes on the Judiciary the duty of declaring that Jaw void. In discharging this onerous duty, the judiciary, ought to proceed with caution and circumspection. It ought not to declare an existing law to be void unless it is ineluctably driven to the conclusion that it is, and it ought also to hesitate to come to that conclusion when the consequences of it will be to deprive the executive of a weapon which it may need to combat subversive movements and preserve the safety of the infant State.  It ought to be, and indeed, under the Constitution, must be, left to Parliament in its own good time and wisdom to repeal such provisions as are contained in the Press (Emergency Powers) Act, 1931, as it thinks fit.

Trade War: Is it a prelude to deglobalisation?

1. I am delighted to be here today and am grateful to the FAI and the organisers of this conference for inviting me to speak to this gathering. I am also happy to be in Singapore, a country which truly epitomises all that can be called achievements of globalisation, and a country with which India had and continues to have multifaceted engagement covering cultural, ethnic and economic spheres. FAI, a body of forex market professionals who intermediate between the supply and demand for foreign currency and act as ‘price givers’ to the rest of the economy has been active in promoting transparency, professionalism and ethical conduct in the forex market since 1979. I commend them for the role they have played and hope that they will continue to do so in future with utmost efficiency and fairness.

2. The forex market is unique in several ways. A foreign currency is essentially a commodity outside its jurisdiction and therefore has attributes of an asset. But the exchange rate, the price of the foreign currency normalised to the home currency is an important macroeconomic variable that ought to be determined by economic fundamentals and influences behaviour of economic agents. Principally because of this twin nature, the exchange rate exhibits great volatility and decouples from its value indicated by the economic fundamentals that calls for policy response. I must add that the only thing next to extreme volatility that disorients a forex trader is a situation of very low volatility!

3. It is ironical that amidst several disruptive factors, the volatility in the global foreign exchange markets has been quite low in recent times. In fact, the JPMorgan Global FX volatility Index has been at its lowest since 2014. Market participants have seen this as a lull before the storm and have recounted past episodes when such a trough was followed by a sharp rise in the US Dollar. Despite the 25-basis-point rate cut announced by the US Federal Reserve, the US Dollar rose sharply, probably anticipating more accommodating measures in the future. If anything, this underscores uncertainty.

4. The global economic scenario is not very encouraging, though there is no room for pessimism yet. The IMF continues to revise the global growth projections for 2019 downward though the outlook for 2020 is more positive. The growth in the developed countries remains sluggish and the emerging economies including China and India, the dominant contributors to global growth in recent years, appear to be facing a challenge. Another era of accommodative monetary policy regime seems to be round the corner as evident from synchronised rate cut by several Central Banks.

5. Global trade tensions between the two largest economies are a dominant theme of discourse today. As of now, there does not appear to be any possibility of quick resolution of the tension, nor does it seem to escalate and get out of hand rapidly in near future. Whatever may be the rational and economic logic behind the competitive protectionism through tariff barriers, it is certainly contributing to the global economic slowdown. The exit of Britain from the European Union, the so-called Brexit also is shrouded in uncertainty and it is recognised that a no-deal Brexit will surely be a disruptive factor. There are also risks emanating from geopolitical tensions in the Gulf and elsewhere that can adversely affect the sentiments.

6. Delicately poised as the global economy is at this juncture, much of which, as IMF Chief Economist Gita Gopinath says, is self-inflicted, it is entirely premature to think of deglobalisation. Globalisation is an irreversible process and has been progressing for millennia. It has progressed rapidly beyond expectation in recent times because of quantum advancements in communication and technology. All aspects of human existence including economies, markets, social interactions, education and so on have become intertwined. True, the process of globalisation has brought problems and discontent in its wake, but wisdom lies in addressing them rather than disbanding the process.

7. Free Trade has been one of the main planks of globalisation. It has been generally held that free trade amongst nations enhances welfare. The underpinning logic is the same as that in case of free market economics: specialisation, comparative advantage and productivity gains. Just as in case of free market economics, there are factors that affect the gains from trade. Besides, there has always been an asymmetric approach to free exports versus free imports. While every country favours exports (except when the terms of trades are deteriorating) because it contributes to domestic employment and growth, there is an abhorrence for imports because the country loses employment, growth and foreign exchange. This brings in deterrent measures like tariff and when one hears talk about optimum tariff, it simply means optimum for the welfare of the country concerned not for the global welfare as a whole. And if all the trading countries impose retaliatory tariffs, it becomes a negative-sum game affecting global welfare and welfare of individual nations to a varied extent.

8. Ordinarily, the exchange rate is supposed to play some kind of an equilibrating role in addressing the current account deficit, subject of course to several preconditions. A country with trade surplus should experience appreciation of its currency making its exports more expensive and imports cheaper and vice versa for a country with trade deficit. The success of this mechanism depends on to what extent the exchange rates are allowed to be determined by the market forces without intervention of national authorities. It is not surprising that allegations of currency manipulation were fairly common in the run up to the recent trade tension.

9. The increasing globalisation of trade, manufacturing, services, supply chain, capital movement, etc. has created a web of complex interdependence. Moreover, the externalities of national economic policies have also become substantially magnified. While the national governments and policy makers are supposed to act in interest of their respective constituencies, the collateral effect of their action on the rest of the world can be significant. The need for coordinated action amongst the leaders of the larger nations is urgent. It must be borne in mind that such coordinated action did contribute to contain the global financial crisis.

10. Speaking recently, Governor Das drew attention to the US Treasury’s monitoring of countries as currency manipulators since 2015 in which India figured for some time till 2018. He further pointed out that the charter of the IMF has elaborate provisions to bind its member countries not to manipulate their currencies so as to gain unfair comparative advantage in trade and it is best that the issues relating to any alleged currency manipulation are best dealt with in a multilateral framework than bilateral attempts to correct a wrong. The same logic applies to trade in goods and services and other areas of discord as well. That was the purpose behind the erstwhile GATT, now WTO. The current trade tensions are best sorted out multilaterally through cooperation lest as Paul Krugman tweeted some time back, “In the long run the world would be poorer and in the short run there would be immense disruption.”

11. The Indian forex markets have been fairly stable in recent months. As you know, the Reserve Bank is mandated to maintain orderly conditions in the foreign exchange market. Its intervention in the forex market is solely directed at curbing sudden turbulences not backed by the economic fundamentals. As has been said repeatedly, market operations are not intended to achieve any target exchange rate or band of rates. It must be pointed out that the exchange rate dynamics in India for more than a decade has been driven by capital flows rather than current account balances. As an aside, India has mostly run a current account deficit, notwithstanding a bilateral trade surplus with the US, marginally more than USD 20 billion during 2018. Though long-term flows related to FDI and long-term debt have been fairly stable keeping in tandem with the economic fundamentals, the portfolio flows have their own dynamics depending as much on attractiveness of returns of Indian assets as the global factors determining their risk appetite. Gyrations in the forex market in these circumstances leave no option other than market intervention to restore orderliness in the market. One also need to bear in mind that India’s forex reserves are borrowed reserves and not built out of export surplus. Inasmuch as it provides a bulwark against sudden flow reversals, it enhances the country’s ability to cope with the fall out and indeed, contributes to global stability as well.

12. The policy regime is also oriented to providing adequate instruments of hedging to all resident economic agents who have exposure to a foreign currency as well as all non-residents who have a Rupee exposure. The onshore markets are fairly deep and liquid but needs further strengthening. There is a wide menu of hedging instruments available and further expansion would be in keeping with understanding of their risk implication. In recent times, global institutions and investors have shown a healthy appetite for Rupee denominated assets, which while ensuring flow of foreign exchange protects the Indian issuers from exchange risk. This trend needs to be given further policy nudges.

13. In fine, I would like to say that though there are discouraging portents for the global economy and uncertainties arising from trade tensions and geopolitical developments, I am optimistic that coordinated policy response and dispute resolution within a multilateral framework will see us through the day.

14. I will also take this opportunity to highlight two other important issues. First, the issue of transparent and fair pricing of foreign exchange transactions which has been brought to our notice by various category of users. The problem of getting fair prices was especially acute for MSMEs and small businesses who were not allowed to access the FX trading platforms of individual banks. In order to address this issue, RBI decided to develop, through CCIL, a web-based platform wherein such participants could place their purchase/sale orders directly. The platform, is accessible to users from early August 2019 through an internet-based application, allows bid/offers from retail clients and Authorised Dealer banks to be matched anonymously and automatically, thereby allowing complete transparency to the users about the levels of their trades. Banks will have to declare and recover their processing charges separately leading to competition amongst banks for customer business. I urge banks to make the platform popular among retail and small business houses/MSMEs.

15. Second, the Global Forex Code developed by the BIS as a common set of guidance for the proper functioning of the FX market. It comprises a common set of principles (55 in total with 6 leading principles) aimed at restoring trust and allowing greater confidence in the forex market and its functioning after various scandals (like LIBOR fixing scandal, etc.) eroded confidence in the markets. The Code provides the corporate/intermediary with an opportunity to review/improve its internal FX operations and align them to global standards. It provides a positive signal to its clients, investors, counterparties and the wider market of the corporate’s commitment to follow good practices while dealing in the FX market.

16. In India, all banks, barring one, and several non-bank participants have signed the Statement of Commitment (SoC) to the Code. Though the adoption of the code is voluntary, I urge all the non-bank participants present here to study the Code, examine their processes and, thereafter, sign the SoC to the Global Code.

17. I wish your deliberations all success.


(Shri B.P Kanungo, Deputy Governor – August 10, 2019 – Forex Association of India Conference, Singapore)

Date : Aug 26, 2019

Originally published bt RBI

Role of lawyers in the administration of justice

A successful lawyer has always been held in high esteem not because he has succeeded in accumulating unlimited earnings but because of his knowledge wisdom and Court craft. His keen mind, brilliant intellect, indomitable labour and prophetic vision aid him to acquire a personality which inspires the new entrant and fosters respect amongst colleagues.

But those who go astray indulge in indiscipline and profess to preach vices to enhance their own breed. They do not rely on genuine talent, rather find it convenient to have the short cut through the ladder of a risky adventurer or tread the lawless path. This breed adopts the method of shouts and threats bereft of wisdom to extract submission from the sobre. They create an atmosphere of helplessness and browbeat the logical and the reasonable. They call it agitation and glorify it in the name of revolution. Their motto is to get at something, by disrespect and creating chaos. Many young lawyers today are wandering without rule or guidance in a wilderness as vast and intricate as the untamed forest. The training of a newcomer to the profession is too casual and too scanty.

Regulatory Measure 

An Advocate, who is an Officer of the Court, is bound to respect the Court and maintain its dignity, decorum and majesty is the thumb rule.

235. Control over subordinate courts

The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.

 This Article shows that the High Court has to exercise its administrative, judicial and disciplinary control over the members of the Judicial Service of the State. The word “control”, referred to in this Article, is used in a comprehensive sense to include general superintendence of the working of the sub-ordinate courts, disciplinary control over the Presiding Officers of the sub-ordinate courts and to recommend the imposition of punishment of dismissal, removal and reduction in rank or compulsory retirement. “Control” would also include suspension of a manner of the Judicial Service for purposes of holding a disciplinary enquiry, transfer, confirmation and promotion.

The Art of advocacy

A lawyer is given the privilege of audience by the Court and as such he is an officer of the Court. We often speak of the rule of law as the most significant and distinguishing feature of a democratic State. The majesty of law depends not only on the efficiency, integrity, impartiality and independence of the judiciary; it also needs the assistance of a strong, competent, fearless and incorruptible Bar. it is the privilege of the Bar and indeed their duty to press their clients’ cases strenuously and to the best of their ability. A lawyer must, no doubt, give his very best to every cause that he pleads in Court. But in the discharge of his duties he is always expected to exercise his discretion in the selection of his points. The art of advocacy consists in making a proper selection of points to be pressed before the Court and in making such selection the lawyer is at full liberty to exercise his own discretion in the matter.

This aspect of the duties of the profession of advocacy postulates that however keenly a lawyer may fight his client’s cause, he cannot and should not identify himself too much with his client. Detachment and objectivity are indeed the basis of the strength of the Bar, and when a lawyer agrees to share in the profits of litigation, he can never retain due detachment and objectivity while advocating the cause. An agreement which makes the payment of lawyer’s fees conditional upon the success of the suit and which gives the lawyer an interest in the subject-matter of the suit itself would necessarily tend to undermine the status of the lawyer as a lawyer.

The art of sophisticated advocacy will not only sooth an adverse Judge but will also heavily aid the lawyer in proceeding with the case to the best advantage of the litigant whose interest is supreme. This supremacy of the object should however not overcome the mental faculties of a lawyer so as to malign the free-flow of justice. It also does not enhance the limits of the licence given to a lawyer so as to destroy his own privileges which he enjoys by virtue of being an officer of the Court. It is only when a lawyer transgresses such limits that the Court on such rare occasions has to rise to preserve the faith and confidence of the public at large while ensuring the rule of law and dispensation of justice. Public interest or litigants interest cannot be served by resorting to whole scale violence of public faith reposed in the judiciary. Lawyers do not enter into contracts with clients to give guaranteed results. They are only obliged to defend a cause which they think to be right in the eyes of law. But that should not in over zeal prompt one to wilfully misrepresent oneself more so where the cause is to secure justice.

They are the instruments who are supposed to assist the Court in finding out the truth. They are engines of interpretive ideas to infuse life into the dead letter of laws. They enliven hope of justice like an oasis in the desert. The Courts through their devoted labour deliver justice. Judges who have taken oath discharge their onerous duties through these ministers of justice.

 A lawyer’s pursuit should be what was professed by the great 19th Century American Statesman, William Lloyd Garrison, who while launching his new number “The Liberator” said, “I will be as harsh as truth and as uncompromising as Justice. I am in earnest–I will not equivocate–I will not excuse–I will not retreat a single inch–and I will be heard.”

The wisdom of the Courts are both sharpened and chiselled by the forensic arguments, representing deeper thoughts well dressed with logic, advanced by the lawyers. For students it is said that if they do not study well, they will miss school instead of vacations. If lawyers do not receive proper training, they will miss cases and clients. Improper behaviour and absence of courtesy might end up in what Lawyers detest most – loss of a Judge. A lawyer should be adept at expedients for avoiding any unpleasant predicament. He has to by dint of his profession, maintain dignified and respectable bearing in the Court. A lawyers conduct should reflect respectful obedience. Courtesy, consideration towards others and unselfishness are the sources of true politeness from which etiquette springs.

A person who chooses this vocation is not one who has been tossed into this world to be a sport of fortune ; one is supposed to train oneself, as the profession obliges service to the institution and service to the litigant whose interest is supreme to receive justice through the rule of law. The attire in roles of a lawyer is a respectable disguise. To hold on to such a respect would also require a disciplined character. The moment such a character is shed or given up, not only the attire but the person donning it loses respect. A lawyer should put all his genius into being heard by the Court, not for inviting hatred and contempt. The eloquence and speech of a lawyer should be direct and brilliant, but eminently self controlled and circumscribed by law. The logic and language should not be allowed to go tangent and should be rarely at fault, if not perfect. Speaking in a tongue which one does not altogether understand, should be avoided. It is not necessary to stoop to verbal vulgarity to receive attention. A corrupt reasoning of the mind becomes an instrument of dispute.

Fees always not matters 

In 1874 Couch C. J. and Jackson J. of the Calcutta High Court condemned an advocate for having entered into a contract which was contrary to public policy. By the contract in question the advocate had agreed to receive as his professional fees a certain share in the subject-matter of the suit.–‘In the matter of Moung Htoon Oung 21 WB 297 (Cal) (C).

The same view was expressed by a Full Bench of the Calcutta High Court in 1900 in — ‘In the matter of an Advocate 4 Cal LJ 259 (D). Chief Justice Maclean, who delivered the principal judgment of the Full Bench observed that it is professional misconduct for an advocate to agree with his client to accept as his fee a share of the property, fund or other matter in litigation for his services as advocate in such litigation upon the successful issue thereof.

In — ‘R, An Advocate, In re AIR 1939 Mad 772 (E) a Full Bench of the Madras High Court has held that for an advocate to enter into an agreement by which he was to accept for his fees a certain proportion of the subject-matter of the suit amounted to professional misconduct of which the Court would take serious notice. In this case there were two agreements which the advocate had made with his client. By the first agreement the advocate had undertaken the liability to maintain the client and carry on the litigation. But by the second he had merely agreed to receive for his fees a certain share in the proceeds of the litigation. His conduct was condemned not only in respect of the first agreement, but also in respect of the second. The Punjab High Court have expressed the same view in — ‘In the matter of a Pleader of the Chief Court of the Punjab 69 Pun Re 1904 (F) and — ‘Ganga Ram v. Devi Das 61 Pun Re 1907 (G).

The Standard

Declining standards in the art of advocacy causes serious concern to all the stake holders involved in the mechanism of dispensation of justice, including the lawyers and the litigants. If this adverse and agonising trend is not reversed, with a sense of urgency, it would lead to disastrous consequences. The members of the Bar should not forget to remember that they are officers of the Court and that they have a legal obligation to aid the courts of law in performing their functions, in a smooth and efficient manner. Further, it is the primary duty of the Bar to keep a constant vigil in upholding the dignity and the decorum of the judiciary by cherishing, nurturing, preserving and practising the age old traditions of this great institution, which are worthy of emulation.

A concerted effort has to be made to arrest the contagious illness before it becomes cancerous and attains dangerous and unmanageable proportions, like a bubonic plague. There should, probably, be an open public debate, involving all the stake holders, who may have a say in the system of dispensation of justice. Unless we set our house in order, we may fail to keep the promises we had made when we gave to ourselves the sacred document called the Constitution of India, containing more than a million dreams.

 In O.P. Sharma and Others Vs. High Court of Punjab and Haryana, the Supreme Court had reiterated the role of lawyers in the administration of justice. It had been held that a lawyer cannot be a mere mouthpiece of his client. He is under an obligation to uphold the rule of law and to ensure that the judicial system functions to its full potential. A lawyer should be dignified in his dealings with the Court, his fellow lawyers and the litigants. He should have integrity in abundance and should never do anything that erodes his credibility. He should faithfully abide by the standards of professional conduct and etiquette, prescribed by the Bar Council of India. He has an important social duty to perform, as an officer of the Court.

In a recent decision, a Division Bench of this Court, in S. Padma and Another Vs. The Chief Justice, High Court of Madras, Chennai 600104, had held that an Advocate, who is an officer of the Court, is bound to respect the Court and to maintain its dignity, decorum and majesty.

In his book titled ‘Dynamic Lawyering’, Justice V.R. Krishna Iyer has stated that lawyers are social engineers and are hallowed partners in securing a world order, a cosmos without chaos and an international order where jurisprudence never dwindles into the vanishing point. The Bar should be at war with injustice, as an equal partner in the judicial process.

Unless the long-cherished traditions and conventions of this Court are jealously guarded, respected and followed to their last details, the process of dispensation of justice may be pushed to the brink of disaster. Courts are not expected to tolerate uncouth and unacceptable behaviour from the members of the Bar. This Court may be failing in its duty if it does not express a word of caution in such matters. Further, it may be mistaken to be a tacit sanction or a weakness shown in the performance of its primary duty of rendering justice, without fear or favour, ill-will or affection.

 Muted murmurs are heard from some segments of the society, reflecting their concern regarding the falling standards and the lack of professionalism amongst the members of the Bar, in general. Therefore, at this juncture, there is an emergent need for intense introspection before rigorous remedial measures are initiated to curb and to contain the malaise. Let the house be set in order before it becomes a loud chorus, and before it is too late to redeem the lost prestige of the noble profession. It is said that the Courts of law are the last resort of a common man on the streets. Let there be nothing done, by deeds or by words, to belie the high hopes the people of this nation have on this ‘last bastion’ of hope – the judiciary. Let there be a clear and definite resolve to revive and to restore the legal system to its old glory and to make it march forward in its quest for justice.

Scandalising the Court and the hostile criticism of Judges

The Hon’ble Apex Court in M.Y. Shareef and Another Vs. The Hon’ble Judges of The High Court of Nagpur and Others, as hereunder:

It cannot be denied that a section of the Bar is under an erroneous impression that when a counsel is acting in the interests of his client, or in accordance with his instructions he is discharging his legitimate duty to his client even when he signs an application or a pleading which contains matter scandalizing the Court. They think that when there is conflict between their obligations to the court and their duty to the client, the latter prevails. This misconception has to be rooted out by a clear and emphatic pronouncement, and we think it should be widely made known that counsel who sign applications or pleadings containing matter scandalizing the court without reasonably satisfying themselves about the prima facie existence of adequate grounds there for, with a view to prevent or delay the course of justice, are themselves guilty of contempt of court, and that it is no duty of a counsel to his client to take any interest-in such applications; on the other hand, his duty is to advise his client for refraining from making allegations of this nature in such applications.

(Emphasis supplied by us)

The Hon’ble Apex Court in the same decision also observed as hereunder:

We have no doubt that whatever the learned Judges of the High Court did in this case, they did in the firm belief that the dignity of the Court had to be maintained and the members of the Bar, howsoever big or learned, cannot be allowed to scandalize the judges or to divert the course of justice by attempting to take a case out from one Bench to another Bench of the Court when they find that the Bench is expressing opinions seemingly adverse to their clients.

It is also relevant to refer the decision of the Hon’ble Supreme Court in S.K. Sundaram In Re. reported in 2001 (2) SCC 171 2000 (1) L.W. 26. In the said decision earlier decision of the Hon’ble Supreme Court in Dr. Dt C. Saxena V. Hon’ble the Chief Justice of India reported in 1966 Crl.L.J. 3274 was referred to, wherein, after holding the contemnor as guilty of criminal contempt, the Hon’ble Apex Court observed as hereunder :

Scandalizing the court, therefore, would mean hostile criticism of Judges as Judges or judiciary. Any personal attack upon a Judge in connection with the office he holds is dealt with under law of libel or slander. Yet defamatory publication concerning the Judge as a Judge brings the court or Judges into contempt, a serious impediment to justice and an inroad on the majesty of justice. Any caricature of a Judge calculated to lower the dignity of the court would destroy, undermine or tend to undermine public confidence in the administration of justice or the majesty of justice.

In the same decision, the Hon’ble Apex Court further observed as follows :

Dealing with the imputation that the then Chief Justice of India deliberately and willfully failed to perform his duties the three Bench Judge Bench further observed thus :

It tends to lower the dignity and authority of the Court and also sows seeds for persons with similar propensity to undermine the authority of the Court or the judiciary as a whole; he crossed all boundaries of recklessness and indulged in wild accusations.

In yet another decision in Vishram Singh Raghubanshi Vs. State of U.P., , the Hon’ble Apex Court in paragraph 16 held as follows:

 The dangerous trend of making false allegations against judicial officers and humiliating them requires to be curbed with heavy hands, otherwise the judicial system itself would collapse. The Bench and the Bar have to avoid unwarranted situations on trivial issues that hamper the cause of justice and are in the interest of none. “Liberty of free expression is not to be confounded or confused with licence to make unfounded allegations against any institution, much less the Judiciary”. A Lawyer cannot be a mere mouthpiece of his client and cannot associate himself with his client maligning the reputation of judicial officers merely because his client failed to secure the desired order from the said officer. A deliberate attempt to scandalise the court which would shake the confidence of the litigating public in the system, would cause a very serious damage to the institution of judiciary. An advocate in a profession should be diligent and his conduct should also be diligent and conform to the requirements of the law by which an Advocate plays a vital role in the preservation of society and justice system. Any violation of the principles of professional ethics by an Advocate is unfortunate and unacceptable.

(Emphasis supplied by us)

In yet another decision O.P. Sharma and Others Vs. High Court of Punjab and Haryana, , the Hon’ble Apex Court held as follows :

The role and status of lawyers at the beginning of sovereign and democratic India is accounted as extremely vital in deciding that the nation’s administration was to be governed by the rule of law. They were considered intellectuals amongst the elites of the country and social activists amongst the downtrodden. The role of lawyers in the framing of the Constitution needs no special mention. In a profession with such a vivid history it is regretful, to say the least, to witness instances of the nature of the present kind. Lawyers are the officers of the court in the administration of justice. The Bench as well as the bar has to avoid unwarranted situations or trivial issues that hamper the cause of justice and are in no one’s interest. A lawyer cannot be a mere mouthpiece of his client and cannot associate himself with his client in maligning the reputation of a judicial officer merely because his client failed to secure the desired order from the said officer. A deliberate attempt to scandalise the court which would shake the confidence of the litigating public in the system and would cause a very serious damage to the name of the judiciary.

In the same decision, the Hon’ble Apex Court referred to an earlier decision in M/s. Chetak Construction Ltd. Vs. Om Prakash and Others, wherein it was held as hereunder :

Indeed, no lawyer or litigant can be permitted to browbeat the court or malign the presiding officer with a view to get a favourable order. Judges shall not be able to perform their duties freely and fairly if such activities were permitted and in the result administration of justice would become a casualty and the rule of law would receive a setback. The Judges are obliged to decide cases impartially and without any fear or favour. Lawyers and litigants cannot be allowed to ‘terrorize’ or ‘intimidate’ Judges with a view to ‘secure’ orders which they want. This is basic and fundamental and no civilised system of administration of justice can permit it.

The fine art of advocacy suffers mayhem when irreverent men indelicately brush with it.

In Jaswant Singh Vs. Virender Singh and others, AIR 1995 SC 520 observed:

“It is most unbefitting for an advocate to make imputations against the Judge only because he does not get the expected result, which according to him is the fair and reasonable result available to him. Judges cannot be intimidated to seek favourable orders. Only because a lawyer appears as a party in person he does not get a licence thereby to commit contempt of the court by intimidating the Judge or scandalising the courts. He cannot use language, either in the pleadings or during arguments, which is either intemperate or unparliamentary. These safeguards are not for the protection of any Judge individually but are essential for maintaining the dignity and decorum of the courts and for touchy to fair and reasonable criticism of their judgments. Fair comments, even if, outspoken, but made without any malice or attempting to impair the administration of justice and made in good faith, in proper language, do not attract any punishment for contempt of court. However, when from the criticism deliberate, motivated and calculated attempt is discernible to bring down the image of judiciary in the estimation of the public or to impair the administration of justice or tend to bring the administration of justice into disrepute the courts must bestir themselves to uphold their dignity and the majesty of law. The appellant, has, undoubtedly committed contempt of court by the use of objectionable and intemperate language. No system of justice can tolerate such unbridled licence on the part of a person, be he a lawyer, to permit himself the liberty of scandalising a court by casting unwarranted, uncalled for and unjustified aspersions on the integrity, ability, impartiality or fairness of a Judge in the discharge of his judicial functions as it amounts to an interference with the due course of administration of justice.”

Once a lawyer always a lawyer

In Seldom v. Croom-Johnson [1932] 1 KB 759; 16 TC 740, a question arose on a barrister’s Income Tax assessment whether his becoming a King’s counsel from his being a junior barrister would amount to setting up a new possession, Rowlett J. referred to the distinction between the setting up of a new profession and setting up of a new business. He observed that both the junior barrister and the king’s counsel carry on the same profession and the assessee was still acting in the same way as before, practising the art of advocacy, even before he became the King’s counsel. This decision is an illustration of the nature of the legal profession. Come what may, the legal profession remains the same. Once a lawyer always a lawyer. With the assessee’s expulsion from the law firm one chapter in his career was closed. But then it was the beginning of the next one. Legal profession at all times has been considered to be a profession and it is not like a trade or a business. The expression “commercial” primarily deals with the trade and business whereas the art of advocacy is skilled art and one has to acquire it by dint of his skill and legal study.

legal profession does not fall in the category of a trade or business; it is a profession which can only be practised by those who possess necessary and requisite skill in the subject which distinguishes it from any trading or business activity. Lawyers are the clan on priests of the temple of justice enjoined with the duty of constantly guarding the ivory gates of truth and wisdom. They possess the key to the gates of this institution and show the way to the portals of this temple where the common man seeks justice. Lawyers chivalrous devotion to a cause–binds him indissolubly to the cause of truth–One has to rise above attachment and repulsion to be free from passion in thought, word and deed away from fear and vanity.

Murder Case: The principle of proportion between crime and punishment

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Section 302 IPC prescribes death or life imprisonment as the penalty for murder. While doing so, the Code instructs the court as to its application. The changes which the Code has undergone in the last three decades clearly indicate that Parliament is taking note of contemporary criminological thought and movement. It is not difficult to discern that in the Code, there is a definite swing towards life imprisonment. Death sentence is ordinarily ruled out and can only be imposed for “special reasons”, as provided in Section 354(3). There is another provision in the Code which also uses the significant expression “special reason”. It is Section 361. Section 360 of the 1973 Code re-enacts, in substance, Section 562 of the Criminal Procedure Code, 1898 (in short “the old Code”). Section 361 which is a new provision in the Code makes it mandatory for the court to record “special reasons” for not applying the provisions of Section 360. Section 361 thus casts a duty upon the court to apply the provisions of Section 360 wherever it is possible to do so and to state “special reasons” if it does not do so. In the context of Section 360, the “special reasons” contemplated by Section 361 must be such as to compel the court to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the legislature that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354(3) have both entered the statute-book at the same time and they are part of the emerging picture of acceptance by the legislature of the new trends in criminology. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors, Criminal justice deals with complex human problems and diverse human beings. A Judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed.

It should be borne in mind that before the amendment of Section 367(5) of the old Code, by the Criminal Procedure Code (Amendment) Act, 1955 (26 of 1955) which came into force on 1.1.1956, on a conviction for an offence punishable with death, if the court sentenced the accused to any punishment other than death, the reason why sentence of death was not passed had to be stated in the judgment. After the amendment of Section 367(5) of the old Code by Act 26 of 1955, it is not correct to hold that the normal penalty of imprisonment for life cannot be awarded in the absence of extenuating circumstances which reduce the gravity of the offence. The matter is left, after the amendment, to the discretion of the court. The court must, however, take into account all the circumstances, and state its reasons for whichever of the two sentences it imposes in its discretion. Therefore, the former rule that the normal punishment for murder is death is no longer operative and it is now within the discretion of the court to pass either of the two sentences prescribed in this section; but whichever of the two sentences he passes, the Judge must give his reasons for imposing a particular sentence. The amendment of Section 367(5) of the old Code does not affect the law regulating punishment under IPC. This amendment relates to procedure and now courts are no longer required to elaborate the reasons for not awarding the death penalty; but they cannot depart from sound judicial considerations preferring the lesser punishment.

Section 354(3) of the Code marks a significant shift in the legislative policy underlying the old Code as in force immediately before 1.4.1974, according to which both the alternative sentences of death or imprisonment for life provided for murder were normal sentences. Now, under Section 354(3) of the Code the normal punishment for murder is imprisonment for life and death penalty is an exception. The court is required to state the reasons for the sentence awarded and in the case of death sentence “special reasons” are required to be stated, that is to say, only special facts and circumstances will warrant the passing of the death sentence. It is in the light of these successive legislative changes in the Code that the judicial decisions prior to the amendment made by Act 26 of 1955 and again Act 2 of 1974 have to be understood.

Supreme Court in Ediga Anamma v. State of A.P. (1974) 4 SCC 443) has observed (SCC pp. 453-54, para 26) :

“26. Let us crystallize the positive indicators against death sentence under Indian law currently. Where the murderer is too young or too old, the clemency or penal justice helps him. Where the offender suffers from socio-economic, psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into a lesser one, judicial commutation is permissible. Other general social pressures, warranting judicial notice, with an extenuating impact may, in special cases, induce the lesser penalty. Extraordinary features in the judicial process, such as that the death sentence has hung over the head of the culprit excruciatingly long, may persuade the court to be compassionate. Likewise, if others involved in the crime and similarly situated have received the benefit of life imprisonment or if the offence is only constructive, being under Section 302, read with Section 149, or again the accused has acted suddenly under another’s instigation, without premeditation, perhaps the court may humanely opt for life, even like where a just cause or real suspicion of wife’s infidelity pushed the criminal into the crime. On the other hand, the weapons used and the manner of their use, the horrendous features of the crime and hapless, helpless state of the victim, and the like, steel the heart of the law for a sterner sentence. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accenting the trend against the extreme and irrevocable penalty of putting out of life.”

In Bachan Singh’s case (supra) it has been observed that (SCC p. 751, para 209) :

“A real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.”

A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. In order to apply these guidelines, inter alia, the following questions may be asked and answered, (a) is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?; and (b) are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

Another decision which illuminatingly deals with the question of death sentence is Machhi Singh’s case (supra).

In Machhi Singh (supra) and Bachan Singh (supra) cases the guidelines which are to be kept in view when considering the question whether the case belongs to the rarest of the rare category were indicated.

 In Machhi Singh case (supra) it was observed (SCC p. 489, para 39) :

The following questions may be asked and answered as a test to determine the ‘rarest of the rare’ case in which death sentence can be inflicted:-

(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

The following guidelines which emerge from Bachan Singh’s case (supra) will have to be applied to the facts of each individual case where the question of imposition of death sentence arises (SCC p. 489, para 38):-

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.

(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

In rarest of rare cases when collective conscience of the community is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:

(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward or a cold-blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course for betrayal of the motherland.

(3) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of ‘bride burning’ or ‘dowry deaths’ or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position or a public figure generally loved and respected by the community.

If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.

A convict hovers between life and death when the question of gravity of the offence and award of adequate sentence comes up for consideration. Mankind has shifted from the state of nature towards a civilized society and it is no longer the physical opinion of the majority that takes away the liberty of a citizen by convicting him and making him suffer a sentence of imprisonment. Award of punishment following conviction at a trial in a system wedded to the rule of law is the outcome of cool deliberation in the court room after adequate hearing is afforded to the parties, accusations are brought against the accused, the prosecuted is given an opportunity of meeting the accusations by establishing his innocence. It is the outcome of cool deliberations and the screening of the material by the informed man i.e. the Judge that leads to determination of the lis.

The principle of proportion between crime and punishment is a principle of just desert that serves as the foundation of every criminal sentence that is justifiable. As a principle of criminal justice it is hardly less familiar or less important than the principle that only the guilty ought to be punished. Indeed, the requirement that punishment not be disproportionately great, which is a corollary of just desert, is dictated by the same principle that does not allow punishment of the innocent, for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt.

The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the traffic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread.

Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now a single grave infraction that is thought to call for uniformly drastic measures. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.

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