Saturday, March 26, 2011

Triangle of Truth, Law and Justice - a case for conflict management

Gandhi ji's experience in Dada Abdulla's case:

( From "My Experiments with Truth")

"The year's stay in Pretoria was a most valuable experience in my life. Here it was that I had opportunities of learning public work and acquired some measure of my capacity for it. Here it was that the religious spirit within me became a living force, and here too I acquired a true knowledge of legal practice. Here I learnt the things that a junior barrister learns in a senior barrister"s chamber, and here I also gained confidence that I should not after all fail as a lawyer. It was likewise here that I learnt the secret of success as a lawyer.

Dada Abdulla's was no small case. The suit was for £40,000.

Arising out of business transactions, it was full of intricacies of accounts. Part of the claim was based on promissory notes, and part on the specific performance of promise to deliver promissory notes. The defence was that the promissory notes were fraudulently taken and lacked sufficient consideration. There were numerous points of fact and law in this intricate case.

Both parties had engaged the best attorneys and counsel. I thus had a fine opportunity of studying their work. The preparation of the plaintiff"s case for the attorney and the sifting of facts in support of his case had been entrusted to me. It was an education to see how much the attorney accepted, and how much he rejected from my preparation, as also to see have much use the counsel made of the brief prepared by the attorney. I saw that this preparation for the case would give me a fair measure of my powers of comprehension and my capacity for marshaling evidence.

I took the keenest interest in the case. Indeed I threw myself into it. I read all the papers pertaining to the transactions. My client was a man of great ability and reposed absolute confidence in me, and this rendered my work easy. I made a fair study of book-keeping. My capacity for translation was improved by having to translate the correspondence, which was for the most part in Gujarati.

Although, as I have said before, I took a keen interest in religious communion and in public work and always gave some of my time to them, they were not then my primary interest. The preparation of the case was my primary interest. Reading of law and looking up law cases, when necessary, had always a prior claim on my time. As a result, I acquired such a grasp of the facts of the case as perhaps was not possessed even by the parties themselves, inasmuch as I had with me the papers of both the parties.

I recalled the late Mr. Pincott"s advice-facts are three-fourths of the law. At a later date it was amply borne out by that famous barrister of South Africa, the late Mr. Leonard. In a certain case in my charge I saw that, though justice was on the side of my client, the law seemed to be against him. In despair I approached Mr. Leonard for help. He also felt that the facts of the case were very strong. He exclaimed, "Gandhi, I have learnt one thing, and it is this, that if we take care of the facts of a case, the law will take care of itself. Let us dive deeper into the facts of this case." With these words he asked me to study the case further and then see him again. On a re-examination of the facts I saw them in an entirely new light, and I also hit upon an old South African case bearing on the point. I was delighted and went to Mr. Leonard and told him everything. "Right," he said, "we shall win the case. Only we must bear in mind which of the judges takes it." When I was making preparation for Dada Abdulla"s case, I had not fully realized this paramount importance of facts. Facts mean truth, and once we adhere to truth, the law comes to our aid naturally."

(But, what ultimately Gandhiji did ? - Kindly see, previous post - "Mediation is the best advocacy")

Mediation is the best advocacy

Gandhi ji's experience at Bar- Dada Abdulla's case:

( From "My Experiments with Truth")

"I saw that the facts of Dada Abdulla"s case made it very strong indeed, and that the law was bound to be on his side. But I also saw that the litigation, if it were parsisted in, would ruin the plaintiff and the defendant, who were relatives and both belonged to the same city. No one knew how long the case might go on. Should it be allowed to continue to be fought out in court, it might go on indefinitely and to no advantage of either party. Both, therefore, desired an immediate termination of the case, if possible.

I approached Tyeb Sheth and requested and advised him to go to arbitration. I recommended him to see his counsel. I suggested to him that if an arbitrator commanding the confidence of both par-ties could be appointed, the case would be quickly finished. The lawyers' fees were so rapidly mounting up that they were enough to doveur all the resources of the clients, big merchants as they were. The case occupied so much of their attention that they had no time left for any other work. In the mean-time mutual ill-will was steadily increasing. I became disgusted with the profession. As lawyers the counsel on both sides were bound to rake up points of law in support of their own clients. I also saw for the first time that the winning party never recovers all the costs incurred. Under the Court Fees Regulation there was a fixed scale of costs to be allowed as between party and party, the actual costs as between attorney and client being very much higher.

This was more than I could bear. I felt that my duty was to befriend both parties and bring them together. I strained every nerve to bring about a compromise. At last Tyeb Sheth agreed. An arbitrator was appointed, the case was argued before him, and Dada Abdulla won.

But that did not satisfy me. If my client were to seek immediate execution of the award, it would be impossible for Tyeb Sheth to meet the whole of the awarded amount, and there was an unwritten law among the Porbandar Memans living in South Africa that death should be preferred to bankruptcy. It was impossible for Tyeb Sheth to pay down the whole sum of about £ 37,000 and costs. He meant to pay not a pie less than the amount, and he did not want to be declared bankrupt. There was only one way, Dada Abdulla should allow him to pay in moderate installments. He was equal to the occasion, and granted Tyeb Sheth instalments spread over a very long period. It was more difficult for me to secure this concession of payment by installments than to get the parties to agree to arbitration. But both were happy over the result, and both rose in the public estimation. My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men"s hearts. I realized that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby-not even money, certainly not my soul."

Quoting II part of above statement of Mahatma Gandhi, the Supreme Court of India in SLP (Civil) No. 2896 of 2010 B.S. Krishnamurthi v. B.S. Nagraj decided on 14/1/2011 by Hon. M. Katzu and Hon. Gyansudha Mishra,JJ, referred a case , which is between two brothers, to Bangalore Mediation Center.

Tuesday, March 22, 2011

सत्यमिति - सूत्र ५,६

सूत्र ५- मिथ्या बाहर है, सत्य भीतर और बाहर दोनों जगह हैअतएव , सत्य मिथ्या से अधिक व्यापक है
सूत्र - जो चीज भीतर है वह स्थायी हैबदलाव बाहर वाली चीज में होता हैअतएव, सत्य मिथ्या से अधिक शक्ति शाली है

आस्था एवं व्यवस्था

विश्वास एवं आस्था को दरकिनार करने की सोच आत्मघाती है। क्या लोकतंत्र, संविधान, कानून एवं पूरी राजनैतिक व्यवस्था विश्वास के सिवा किसी अन्य चीज पर आधारित हैं ? आवश्यकता है संतुलित सोच की।

Sunday, March 20, 2011

न्यायाधीश एवं न्यायकर्त्ता

मेरे मस्तिष्क में प्रश्न उठता है - क्या किसी व्यक्ति को न्याय का स्वामी कहना उचित है ? मेरे विचार से- नहीं। न्याय का कोई स्वामी नहीं हो सकता। न्याय परम स्वामी है। न्याय ईश्वर है। किसी को ईश्वर का ईश्वर कहना उचित नहीं।

न्याय करने वाले को "न्यायकर्त्ता" कहना अधिक सटीक लगता है। जिन्हें न्याय करने का दायित्व सौपा जाता है वे "न्यायकर्त्ता" शब्द को सार्थक करें, इतना पर्याप्त है। "न्यायाधीश" कहलाने पर स्वामित्व का बोध होने के कारण स्वेच्छाचारिता की गुंजाईश होना स्वाभाविक है। स्वामी की सार्थकता संपत्ति के साथ है। न्याय पर नियंत्रण एवं मुक़दमे का निस्तारण संपत्ति की तरह से नहीं किया जा सकता।
शब्द एवं नाम का व्यक्तित्व एवं कर्तृत्व पर प्रभाव होता है। क्या यह उचित नहीं कि, विधायिका आवश्यक कानून बनाकर पदनाम को संशोधित करे और हिंदी - संस्कृत के विद्वान् शब्दकोष में न्यायाधीश के स्थान पर न्यायकर्त्ता शब्द का प्रयोग करें ?

मेरा पेशा और इन्टरनेट गतिविधि

चिप्पी- चिप्पी नयी लिखावट पन्ने बन गए गत्ते ! ६ साल लग गए भारतीय संविधान पर एक पुस्तक पूरी करने में । हिंदी में लिखना होता तो शायद १६ साल लग जाते। एक वार्षिक निर्णय संदर्भिका के लिए ५ महीने का समय तय किया था - ७ महीने लग गए। मुक़दमे की तैय्यारी के लिए कानून पढ़ना ही पड़ता है! अब यहाँ भी कानून की ही बात करूँ तो मैं सामाजिक प्राणी कहलाने लायक नहीं। इसलिए, इन्टरनेट पर अपने पेशे से थोड़ा हट कर लिखता हूँ।