Advocacy is strange creature

Advocacy is a strange creature; One has to use else, he has a problem how to tackleissue?

We say we need to be law abiding citizens? Law makers make some laws as if it can contain all issues. Unfortunately ‘Not’.

We have A Constitution called the Constitution of India.

It has Fundamental rights, besides Directive principles of State policy.  How would you use your fundamental rights? Indeed, a very basic Question; in fact that is not so very easy.

Your main article is Art 14 - Natural justice; very difficult to comprehend.

Politicians have so much controlled that Natural justice, though  it was created under simple proposition.

In the last about 70 years, fundamental rights are just manipulated by politics of political expediencies. A very nervous issue.

First man misused the Fundamental rights is very  first PM in Jawaharlal Nehru, who in the 1st Constitutional Amendment introduced the so called Schedule IX ; fortunately it took so many years upto 2007, to declare the Schedule IX is ultra vires in the LR Coelho v St of TN, by the Constitutional  Bench headed by Mr Y K Sabharwal, then CJI.

This bench just allowed only first 13 Acts to continue under Schedule IX as those Acts brought there under have variously mangled so many decisions that meant, any of these 13 Acts if declared  vires’ that would just create too many issues, so these first 13 Acts were retained under ‘Schedule IX.

Politicians just would try to keep poor citizens  into ‘ignorance’ as long as possible.

See , Mr. Donald Trump ®  candidate tries to take donations from charities and he gives the donations out of the donations collected as his own  as reported in Washington Post of September 11th would be an eye opener, same kinds of politicians India is full of.

Again, any major problems you face as a citizen, is usually created by messed up law - making by our great ‘law-makers’ once you elect them to power.

For example for what UPA government did in India, under so called ‘NHAI’ development, all of you might have known.

Today NHAI chairman Mr R Chandra is worried about 600 contracts in courts or at arbitrations, why you will know if you read below:

See down below my note on National Highway Authority of India:

True. The idea of NHAI is to develop in a very fast pace to develop highways in India, knowing fully well so many hurdles, besides the priority is for river links that are more important for India as all said and done, India is essentially an agricultural country, here bullock carts is okay till time develops to upgrade the transportation into modern types; rivers are the life line for whole of India, so you might see, Indian politics wants fast personal wealth of politicians by giving contracts for high ways, that way road contracts came into being if we delve deep into these road contracts and contractors, many contractors are too some politicians affiliated to some political parties or the other, so litigation is bound to be as statutes are so conveniently made by so called law makers.

Yes, the self same politicians could have done connecting rivers all over India, so that they could have earned, true with a big back log of litigations; yet the big lot of country farmers would not have committed suicide for want of water for irrigation.

Today farmers and farmers fight for river waters as the water scarcity is so high for irrigation purposes.

You see politicians forget or fail to see what is more priority than the things they do. Public servants are not candid to spell out clearly what needs to be attended first rather than just be ''great yesmen''.

See litigation is a very normal one in India; as the Indians know how to stall things by litigation mechanism just because very law making is itself litigation oriented; I have not seen any law mostly here is free of litigation process in my 50 years of legal practice as an advocate.

India if to improve it needs to prune the very laws basically as no statute is straight forward.

Chandra is right but it is very difficult to achieve, as law making in India is itself some jobs generating mechanism in itself.

You know, that our governments are the most badly managed system by the politicians, as your defacto representatives. They would just mess up the statutes, right from ‘taxation’ laws down anything, as their prime idea is to earn for their own personal coffers from whatever end is possible, at any cost - may even kill you by inducing you to commit suicide, like it happened in Karnataka where several police cops either committed suicide or eliminated by using very police forces by the so called government in the saddle.

Just you as a petitioner or complainant cannot fight the case successfully unless you are really helped by a competent Advocate, though you can fight your own matter in the courts.

See in Karnataka, there is cavery water dispute, with Tamil Nadu, it is not the fault of Karnataka or Tamil Nadu farmers, but due to the politicians in Karnataka as also in TN, so also all over India.

Politicians everywhere raise their heads, as their ‘job’ is politics or ‘politicking’, they would use you as a complainant or a petitioner or a defendent or a respondent,

You will be used as a complainant or a petitioner by great politicking , like in building societies where too you can find politicians enter in the managing committees, and attack you, like in Kharghar for example every society has different political affiliation, which forces for a Panvel Municipal corporation while others might be looking for independent Municipal corporation, as both can be possible, depending on how well you manage the people to support your ‘pet’ ideas.

That way only in 1992 Navi Mumbai corporation surfaced, with Pawar group party called NCP used Gane man’s political pull  Naik, by making him resign from Shiv Sena by inducing him with illegal grants, and he really earned moneys by all kinds of misusing political power, which is now brought to light and thus his grip is getting away from NMMC, but that kind of grip is now shifting to BJP or Shiv Sena or other kinds of parties, after all ‘inducements’ would change the faces into new parties or big new powerful groups. That way Msanda Mhatre shifted her allegiance from NCP to BJP and so on likewise , other politicians too.

Obviously, if in a litigation, automatically some politicians enter as if your so called ‘God fathers’, and some Advocates really not successful as good professional advocates would shift into politics; some good Advocates too might  enter into politics, that way every ‘professional’ tries to look for fast grip of power or fast professional expertise to earn easy growth.

That way to get a good ‘Advocate’ really oriented to fighting for your genuine cause is day by day reduces.so among other professionals too,

Therefore, it is obvious, it is not easy to find a genuine competent professional Advocacy, besides lower courts are invariably under strangle hold of politicians, and yet some lower courts too perform very well genuinely.

See if you file CrPC sec 125 case against one’s husband, depending upon that political pull, the case might surface in the lower courts; I cite an example, when a son of the lady (SC woman) against her husband (SC) filed her sec 125 case in Panvel court under ‘private complaint’, the court did not countenance the private complaint, as that lady’s advocate is not either legally not competent or politically not strong, so that man (SC) - his second illegal son working as a police constable ensured the private complaint did not see the light of the day.

From these examples, you might know, everywhere politicians try to get strangle hold, like that your PM wanted to have straggle hold on the honourable S C  by so called NJAC Act, but the court being much stronger just declared, that very NJAC Act rightly ‘Ultra vires’; similarly the Accounting community wanted to have strangle hold on National Taxation Tribunal Act by using section 13 of the ICAI Act, as if the CAs with LL.B degree could handle all taxation matters at the Tribunal, it was rightly contested by Madras Bar Association v Union of India  in NTT Act and this the very Act was declared ‘ultra vires’ as the issues before the Tribunal will always be based on ‘the question of Law’ only.

You have sec 89 in.the CPC 1908, for mediation, to ensure most matters be settled by mediation or conciliation,; if failed, than naturally the matter might come before the civil court. So also in Cr PC u/s 205 you can go for ‘plea bargain’.

So competency lives longer.

Therefore it is advisable , if any one chooses the legal profession he or she ought to be really competent that competence does not come just by your so called degrees; but real solid practice over years; besides you need to be a voracious reader of laws and cases as also you should be competently testing ‘facts’ of each case on the anvil of the relevant statutes or laws or sections relevant.

That competent cannot for asking. One needs to concentrate in the relevant area of study. Besides one needs to know, as an Advocate you cannot know every law or every Act, you have to thoroughly study your ‘case’ and the facts need to be tested on laws/sections/Acts relevant as also on the ‘anvils ‘ of the Constitution of India.

If you can do and successfully do, then only you can be a good ‘Advocate’.

Hence peripheral knowledge of laws by your so called several degrees can never substitute to your competence.

So it is always advisable to see every case is handled after smiting ‘Opinions’ might be you may have to hire ‘ counsels’, might be ‘it may cost your clients’ you need to counsel the clients the importance of seeking ‘opinions’ before you go for ‘duel’ ( I mean real court cases!).

Always it is vital for any client to weigh his case before going to fight in the court of law, as you have to face too many ‘ifs and buts’.