Opening the Kerala High Court to an Intern

Interns from various law schools visit the High Court, during mid-summer.  Such visits often turn ritualistic, for lack of proper guidance.  The attempt here is to open the windows of Kerala High Court, to the future lawyers and Judges. 

Introduction

 

It is the function of the Bar Council of India[1], to promote legal education and lay down standards of such education in consultation with the universities. They have Bar Council accordingly formulated rules for academic standards and courses to be studied in law schools.  Internships were identified as an important clinical study tool.  It has been included in the curriculum in the undergraduate law degree course[2].   There are detailed provisions prescribed in for the internship for the undergraduate students[3]. Judiciary is one of the important organizations, where the student may undergo internship.

The study of legal institutions, may be an important method of training the future lawyers.  It is doubtful whether there is any structured program for effectively completing this exercise.  The consequence obviously is that the interns are forced to learn through their individual efforts, which is time consuming and ineffective. This could be a reason for a longer incubation period and one compelling reason why practice falls to the bottom in the priority list of a law student.     

The Kerala High Court has updated its website[4], which could obviously be an effective tool for an intern, to understand the institution.  However, the physical structure of the Building and the status it enjoys as the Apex Court in the state, could naturally terrify a young law student, essentially when he is not briefed. The senior advocates[5], have a duty to guide the juniors, in learning the techniques of legal practice.  This statutory obligation could be fulfilled by developing a training protocol for interns.    One of the effective methods is developing such a protocol is to allow the interns to take a guided tour through High Court and try and connect things found in such tour to their text books          

A Tour

A guided tour of the high court, seems to be an essential, starting point.  The tour may two-fold (1) physical tour of the high court building and (2) virtual tour of the website, its portals and softwares. 

In the physical tour, the interns may visit the various offices functioning inside the building.  Ideally, a provision should be made to guide them, through this tour and to update them about the activities in each office.  This could easily help them to understand the functioning of the office and to relate them to statute and the rules, by which such office is established.

A case is born in the filing section and end in the copying section where certified copies of the judgements and orders are issued.  In this journey, a case file travels through various offices and final place of eternal rest of a case file is the Record Room.  An intern becoming part of this journey could introduce them to the efficient case management system followed by the High Court for several decades.

The virtual tour of the intern through the website of the High Court[6] and the various associated services, is equally important.  The Home Page of the website consists of various portals namely (1) District Judiciary (2) Kerala Judicial Academy (3) Recruitment Portal (4) e-court services (5) NGDJ (6) Kerala State Legal Service Authority and (7) Mediation and Conciliation Centre.    It also gives details about the Constitution, Jurisdiction, Organizational Structure and Judicial Set Up etc.   One of the important documents, that could attract the attention is the Daily Roaster, published by the High Court.  It is usually a two page document, where the entire judicial activities of the High Court can be viewed. 

Study of the Daily Roaster

      Master of the Roaster

      The Daily Roaster is prepared by the Registry, under the directions of the Chief Justice.  The Chief Justice distributes work among the justice in accordance with the subject matter[7]. The position of the Chief Justice, is explained by the Apex Court in State of Rajasthan v. Prakash Chand[8].  It was held that (1) That the administrative control of the High Court vests in the Chief Justice alone. On the judicial side, however, he is only the first amongst the equals. (2) That the Chief Justice is the Master of the Roster. He alone has the prerogative to constitute Benches of the court and allocate cases to the Benches so constituted.

      Location of the Court Room

It would be appropriate to analyze the daily roaster, to get a better understanding about the jurisdiction and the case management methods adopted by the high Court.   There are four columns for the daily roaster.  The first column gives the Court number, which before the pandemic was represented as 1A, 3A, 7E, etc... After the pandemic the video conferencing has occupied this column.     Court No. 1A, has two parts a numeral and an Alphabet, here it would mean that it is the first court in the first floor.  Accordingly the Court room an be easily located due to this systematic numbering.

(Image of the daily roaster dated 18.05.2021 published in the High Court website.)

 

            Benches of the Court

Column number two of the roaster, gives some indication regarding the various benches of the High Court.  It can be seen that in some courts, there are two judges sitting and in others one. The High Court transacts its business through judges sitting single, in Division Benches (Two Judges) and in specifically referred matters in Full Bench (Three Judges) and also in Larger Bench (number of Judges decided by the Chief Justice)[9]   A single judge is vested with powers relating to ……different types of matter[10], while the bench of two judges with seven specific types[11].

The relationship between a single judge, bench of two judges and a full bench is explained in the Act[12].  A single judge has the power to adjourn a matter for being heard and determined by a bench of two judges, while a bench of two judges, also known as a division bench may refer a question of law to a full bench for its determination. The Chief Justice empowered to direct any matter to be heard by a full bench[13]

Types of cases

The column four of the roaster deals with the subjects dealt with by the High Court.  Most of the matters come under the category of OPs/ WPCs. WAs., DB Criminal matters, DB civil matters, DB tax matters, SB Criminal Matters, Bail Applications, CRPs, Transfer Petitions, SAAs, RSAs, MACAs and Admiralty suits.

In the Home Page of the High Court website[14], there is an e-court service portal.  While entering this portal and trying to check the case status, a drop down appears in the icon ‘case type’. The list contains several nomenclature and categories of cases.  The list is essentially long, and obviously many have lost its relevance.  In a proceeding of the Registrar[15] a categorization and nomenclature of cases was notified, as was adopted following the Chief Justices Conference, 1997. Many of these categorizations have become stale, by change of laws, or otherwise.  There are currently about 50 types of cases[16] handled by the High Court.  The number may increase or decrease.  When new tribunals are constituted some of the jurisdictions of the High Court are taken away and matters pending, may be transferred to such new tribunals[17].  A few of the categorization and nomenclature are included in the table below, which will be helpful for understanding the jurisdiction, better.

Table of categorization and nomenclature of case in the Kerala High Court

Sl No.	Nomenclature	Nature of Proceedings	Law Applicable
		Appeals
1.	RFA	Regular First Appeal	Sec. 96 of the Code of Civil Procedure
2.	FAO	First Appeal Against Order	Sec. 104 r/w Order XLIII Rule 1 of the Code of Civil Procedure
3.	FAO (RO)	First Appeal Against Order (Remand Order)	Order XLIII Rule 1(u) of the Code of Civil Procedure, 1908
2.	CO	Cross Objection/Cross Appeal	Order XLI Rule 22 of the Code of Civil Procedure, 1908
4.	Ex.FA	Execution First Appeal	Sec. 96 r/w Order XXI, Rules 58(4) and 103 of the Code of Civil Procedure, 1908
5..	W.A	Writ Appeal	Sec. 5 of the Kerala High Court Act, 1958.
6..	Mat Appeal	Matrimonial Appeal	Section 19 of the Family Court Act
7..	L.A. App.	Land Acquisition Appeal	Sec. 54 of the Land Acquisition Act, 1894, Section 74 of Right o Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
8..	MACA	Motor Accident Claims Appeal	Sec. 173 of Motor Vehicles Act, 1988
9..	Arb. A	Arbitration Appeal	Sec. 37 of the Arbitration and Conciliation Act, 1996.
10..	Tr Appeal (Civil)	Transfer Appeal (Civil)	Sec. 5(i) of the Kerala High Court Act, 1958.
11..	Tr. Appeal (Criminal)	Transfer Appeal (Criminal)	Sec. 5(i) of the Kerala High Court Act, 1958
12.	MFA(KME)	Miscellaneous First Appeal (Kerala Medical Education)	Sec. 12 of the Kerala Medical Education (Regulation and Control of Admission to Private Medical Educational Institutions) Act, 2017
13.	MFA(ADL )	Miscellaneous First Appeal (Admiralty)	Sec. 14 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017.
14.	CRA(V)	Criminal Appeal (Victim) By Defacto Complainant/ Victim	Sec. 372 of the Code of Criminal Procedure, 1973.
15.	CRA	Criminal Appeal	Sec. 21 of the National Investigation Agency Act, 2008 Sec. 374(2), Sec. 449(ii), Sec. 382 of the Code of Criminal Procedure, 1973
16.	Con. APP(C)	Contempt Appeals (Civil)	Section 19(1)(a) of the Contempt of Courts Act 1971.
17.	MSA(FS)	Miscellaneous Second Appeal (Food and safety)	Sec. 71(6) and 76 of the Food Safety and Standards Act, 2006  .
		Appeals (Substantial Question of Law)
18.	RSA	Regular Second Appeal	Sec. 100 of the Code of Civil Procedure, 1908
19.	Ex.SA	Execution Second Appeal	Sec. 100 r/w Order XXI Rules 58(4) and 103 of the Code of Civil Procedure, 1908
20.	Ins. App	Insurance Appeal	Sec. 82(2) of the Employee State Insurance Act, 1948
21.	Cus. Appeal	Customs Appeal	Sec. 130 of Customs Act, 1962.
22.	MFA (Munnar Tribunal)	Miscellaneous First Appeal (Munnar Tribunal)	Sec. 9 of the Munnar Special Tribunal Act, 2010.
		Revision
23.	CRP	Civil Revision Petition	Sec. 115 of the Code of Civil Procedure, 1908.
24.	RP(FC)	Revision Petition (Family Court)	Section 19(4) of the Family Court Act
25.	RCR	Rent Control Revision	Sec. 20 of the Kerala Building (Lease and Rent Control) Act, 1965 t.
26.	CRP (LR)	Civil Revision Petition (Land Reforms )	Sec. 103 of the Kerala Land Reforms Act, 1963.
27.	Crl RP	Criminal Revision	Sec. 397 and 401 of the Code of Criminal Procedure, 1973.
28.	RP(JJ)	Revision Petition (Juvenile Justice)	Sec. 102 of the Juvenile Justice (Care and Protection of Children) Act, 2015
		Advisory
29.	Cus.Ref	Customs Reference	Sec. 130A of the Customs Act, 1962
30	WCC (Ref)	Workmen’s Compensation Reference	Sec. 27 of the Employees’ Compensation Act, 1923.
31.	Death Sentence Ref.	Death Sentence Ref.	Sec.366 of the Code of Criminal Procedure, 1973
32.	Suo Motu Ref.	Suo Motu Reference	Section 113 r/w Order XLVI of the Code of Civil Procedure, 1908.
		Supervisory
33.	WP (C)	Writ Petition (Civil)	Art. 226 of the Constitution of India.
34.	WP(Crl.)	Writ Petition (Criminal)	Petition under Section 226 for Writ of Habeous Corpus and other relief in relation to criminal proceedings
35.	Cont. Cas. (Crl.)	Contempt of Court (Criminal)	Sec. 2(c)(ii) and (iii), Secs. 12 and 15 of the Contempt of Courts Act, 1971.
36.	Crl.MC.	Criminal Miscellaneous Case.	Sec. 482 and Sec. 439(2) of the Code of Criminal Procedure, 1973.
		Supervisory (Superintendence)
37.	OP (Civil)	Original Petition (Civil)	Art. 227 of the Constitution of India (Civil Court)
38.	OP (CAT)	Original Petition (Central Administrative Tribunal)	Art. 227 of the Constitution of India (Central Administrative Tribunal)
39.	OP(KAT)	Original Petition (Kerala Administrative Tribunal)	Art. 227 of the Constitution of India (Kerala Administrative Tribunal)
40.	OP (WAKF)	Original Petition (WAKF)	Art. 227 of the Constitution of India (Wakf Tribunal)
41.	OP(LC)	Original Petition (Labour Court)	Art. 227 of the Constitution of India (Labour Court)
42.	OP(DRT)	Original Petition (Debt Recovery Tribunal)	Art. 227 of the Constitution of India (Debt Recovery Tribunal)
43.	OP(MAC)	Original Petition (Motor Accident Claims)	Art. 227 of the Constitution of India (Motor Accidents Claims Tribunal)
44.	OP (R C)	Original Petition (Rent Control)	Art. 227 of the Constitution of India (Rent Control Court)
45.	OP(STA)	Original Petition (State Transport Appellate Tribunal)	Art. 227 of the Constitution of India (State Transport Appellate Tribunal)
46.	OP (AFT)	Original Petition (Armed Forces Tribunal)	Art. 227 of the Indian Constitution Art. 227(4) provides that the High Court shall not have power of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces. Further, it was held by the Supreme Court in the case of Union of India vs Major General Shri Kant Sharma[18] that no writ petition can be moved against the final judgment of the Armed Forces Tribunal.
		Miscellaneous (Application/Petition)
47.	Bail Appl	Bail Application	Section 437 and 438 of the Code of Criminal Procedure, 1973
48.	Crl. L.P.	Criminal Leave Petition	Sec. 378(4) of the Code of Criminal Procedure, 1973.
49.	Gau. P	Guardianship Petitions	Rules 69 to 71 of the High Court Rules, 1971.
50.	Bkg. P	Banking Company Petition	Sec. 45B of the Banking Regulation Act, 1949
51.	Tr.P(C)	Transfer Petition (Civil)	Section 24 of the Code of Civil Procedure
52.	Arb. R	Arbitration Request	Sec. 11 of the Arbitration and Conciliation Act, 1996.
53.	EDA	Estate Duty Application	Sec. 65(3) of the Estate Duty Act, 1953
54.	Admi.S	Admiralty Suit	Sec 3 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017
55.	MJC	Miscellaneous Jurisdiction Case	Restoration Application, Condonation of Delay
56.	SC(L.P.)	Supreme Court Leave Petition	Art. 134A of the Constitution of India
57.	El. Pet	Election Petition	Sec. 80A of the Representation of Peoples Act, 1951
58.	DBA	Devasom Board Application	Application on various subjects relating all Devaswoms
59.	DBP	Devasom Board Petition	Letter Petition and suo moto proceedings relating all relating to Devaswoms
60.	DBAR	Devaswom Board Audit Report	Audit Reports, Interim Audit Reports and Special Reports from various Devaswoms
61.	SSCR	Sabarimala Special Commissioner’s Report	Report from Sabarimala Special Commissioner regarding the activities at Sabarimala Temple.

The list above is not exhaustive, and cannot be claimed comprehensive.  The categorization of the list is important for the study of the jurisdiction.   They are broadly classified into Appellate Jurisdiction, Supervisory Jurisdiction, Revisional Jurisdiction, Advisory Jurisdiction and Miscellaneous.

Appellate Jurisdiction

            The appellate jurisdiction involves a rehearing, as it were, on law as well as fact and is invoked by an aggrieved person. An appeal is continuation of suit or original proceeding, as the case may be. The power of the appellate court is co-extensive with that of the trial court[19].  Such jurisdiction may, however, be limited in some way as, for instance has been done in the case of second appeals under the CPC and under some Rent Acts in some States[20].  Similarly, based on the pecuniary limits and the mandate of relevant statute, appeals of civil nature may be considered by the Single Judge or the Division Bench[21]

            A single judge can entertain appeal from a judgement or order of a criminal court, except in cases, where sentence of death or imprisonment for life is imposed as a punishment.  He cannot however impose a sentence of death or imprisonment for life[22], as punishment.  Obviously, appeals from such higher punishments are imposed would be heard and disposed by the Division Bench.           

Revisional Jurisdiction

Revisional jurisdiction is analogous to a power of superintendence and may sometimes be exercised even without its being invoked by a party. The extent of revisional jurisdiction is defined by the statute conferring such jurisdiction[23]. It is expected that the subordinate court or tribunal is kept within the bounds of their authority and to make them act according to law. Based on the statutory prescription, the Revisions may be heard by a Single Judge or a Division Bench.

Supervisory Jurisdiction

The Constitution has vested the High Court with powers to issue writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for enforcement of Fundamental Rights and for any other purpose[24].   This power may also be exercised in relation to territories within which the cause of action, wholly or in part, arises for exercise of such power, notwithstanding that the seat of such Government or authority or residence of such person is not within those territories[25].    High Court has Power to superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction[26].   It is an original jurisdiction, as the High Court can be approached directly, and this institution can be termed as a constitutional supervisor.

Advisory Jurisdiction

            The table provides for a list of matters were reference on question of law to the High Court, under various statutes.  The jurisdiction of the High Court … was a special one, different from its ordinary jurisdiction as a civil. The High Court hearing a reference … did not exercise any appellate or revisional or supervisory jurisdiction over the Tribunal. It acted purely in an advisory capacity on a reference which properly came before it. … the High Court gives the Tribunal advice, but ultimately it is for the Tribunal to give effect to that advice. … it was of the essence of such a jurisdiction that the court shall decide only questions which were referred to it and not any other questions[27].  The empirical data of this jurisdiction would show that it is on a constant decline, especially after the establishment of the National Tax Tribunal.

Miscellaneous

In the table above, there are a few times, even though not significant does not come within any of the above categories of jurisdictions.  Under this category election petition, transfer petitions, Bail Applications, petitions invoking the inherent powers[28], Admiralty Suits may fall. The High Court is exercising original jurisdiction and, in a few cases, exercises powers of an ordinary civil court, including those relating to trial of suits. 

Case Management

The Life Cycle of a Case, better explained by third column of the roaster mentions the terms ADMN, PETN and HG, shown against the respective courts.   ADMN refers to ‘Admission’, HG refers to ‘Hearing’ and PETN refers to ‘Petition’. These are also indicative of the different stages of the life of a case, filed before the Court.

There are thirteen judicial sections under the Registry, responsible for each stage of life of a case.  When a case is posted before the Bench[29] the filing section of the Registry require to clear the petition and number the same after ensuring that the petition is free from defects.  The case is then included in the daily list and posted for admission before the bench having jurisdiction, as per the daily roaster.    Interim orders[30] and notice may be ordered by passed by the bench, when the matter comes up for admission.  Necessarily when notices[31] and copies of the interim orders are issued several other sets of offices in the Registry, exercises their functions, for example, the office of the concerned judge, the Registrar or the Assistant Registrar, the Seat in which the case file is maintained, copying section etc... may be involved.   There are not roll calls and the application of the cause list is again a significant difference from the ordinary civil court.  Every other interim procedure for ensuring service of notice of the respondents, completion of pleadings etc., is taken care of by the Registry.

The case management system is time tested, however it is doubtful whether it could successfully handle the docket explosion that occurs in court[32]. New measures by notifying the electronic filing rules[33], is expected to be a game changer in current case management systems followed.  This could obviously bring smiles in the face of the interns, as they are going to be a major stake holder, in the justice delivery system, and could reach the institutions from anywhere in world.

Conclusion

The journey through the High Court, when completed, an intern may realize that all the legal skills are not essentially used in this institution, given the nature of jurisdiction exercised.  Obviously very basic advocacy skills like settling pleadings in civil cases, setting up defence in criminal proceedings, cross examination of witnesses etc.. are not frequently used here, as is done in the District Judiciary.  However, a proper understanding the jurisdiction and case management system in the High Court may be helpful for understanding the functioning of similar other courts and tribunals.   In the long run, internship focusing on the clinical study of such institutions may help reduce the period of incubation of a law students in his transformation to a lawyer.

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[1] Section 7(h) of the Advocates Act 1961

[2] Rule 25 of Schedule II of the Rules on Standards of Legal Education and Recognition of Degrees in Law

[3] Paragraph 25. Rules on Standards of Legal Education- Minimum Period of Internship:

(a)    Each registered student shall have completed minimum of 12 weeks internship for Three Year Course stream and 20 weeks in case of Five Year Course stream during the entire period of legal studies under NGO, Trial and Appellate Advocates, Judiciary, Legal Regulatory authorities, Legislatures and Parliament, Other Legal Functionaries, Market Institutions, Law Firms, Companies, Local Self Government and other such bodies as the University shall stipulate, where law is practiced either in action or in dispute resolution or in management.

Provided that internship in any year cannot be for a continuous period of more than Four Weeks and all students shall at least gone through once in the entire academic period with Trial and Appellate Advocates.

(b)     Each student shall keep an Internship diary in such form as may be stipulated by the University concerned and the same shall be evaluated by the Guide in Internship and also a Core Faculty member of the staff each time. The total mark shall be assessed in the Final Semester of the course in the 4th Clinical course as stipulated under the Rules in Schedule II.”

 

[4] https://hckerala.gov.in/

[5] Paragraph 25. Rules on Standards of Legal Education obligated the senior advocates to guide the students

[6] https://hckerala.gov.in/

[7] https://hckerala.gov.in/about_the_court.php

[8] MANU/SC/0807/1998 : (1998) 1 SCC 1

[9] https://hckerala.gov.in/about_the_court.php

[10] Section 3 of the Kerala High Court Act

[11] Section 4 of the Kerala High Court Act

[12] supra

[13] Section 6 of the Kerala High Court Act 1971

[14] https://hckerala.gov.in/about_the_court.php

[15] No. D1(A)-2010/98 dated 11^th April,2003

[16] https://hckerala.gov.in/judicial_setup.php

[17] National Company Law Tribunal, National Tax Tribunal are examples

[18] JT 2015 (4) SC 576

[19] Olympic Industries v. Mulla Hussainy Bhai Mulla Akberally and Ors. [MANU/SC/1140/2009

[20] Raja Lakshmi Dyeing Works and Ors.  vs. Rangaswamy Chettiar : MANU/SC/0480/1980

[21]Section 19 of the Family court requires the appeal to be heard by a bench of two judges

[22] Section 3 of the Kerala High Court Act 1958

[23] Raja Lakshmi Dyeing Works and Ors.  vs. Rangaswamy Chettiar  (26.03.1980 - SC) : MANU/SC/0480/1980

[24] Article 226 of the Constitution of India

[25] https://hckerala.gov.in/about_the_court.php

[26] Article 227 of the Constitution of India

[27] Commissioner of Income-Tax, Bombay v. Scindia Steam Navigation Co. Ltd. MANU/SC/0194/1961

[28] Section 482 of the Code of Criminal Procedure

[29] Rule 149 of the Kerala High Court Rules 1971

[30] Rule 150 of the Kerala High Court Rules 1971

[31] Rule …….of the Kerala High Court Rules 1971 and Order V of the Code of Civil Procedure

[32] Total pendency of cases is 220837, including 97320 civil cases, 46847 criminal cases and 76670 writ petitions (https://njdg.ecourts.gov.in/hcnjdg_public/main.php)

[33] Official Memorandum No. DI-1/20613/2018 dated 12.05.2021, notified Electronic Filing Rules for Courts (Kerala) 2021.