The Idea of Judgeless Justice
Sanjay Banerjee 6 Mar 2018

The Idea of Judgeless Justice

The High Court at Calcutta is the oldest High Court in India. It is steeped in tradition and its awe inspiring construction, albeit a bit shaky now, has withstood the ravages of time. Now what remains to be seen is whether this grand old institution comes out as a winner in the latest crisis which appears to be unfolding – a test of arrogance of the Executive against the legitimate expectations of the litigants. Years of apathy towards the institution by the parties in power has reduced the strength of Judges who preside over cases to 30 Judges instead of the sanctioned strength of 72 Judges. The Members of the Bar have been raising the issue of appointment of adequate number of Judges for several months. Yet there are only deaf ears all around. Is it a mere coincidence or should we read between the lines?

Since January 2017 till date thirteen Judges have superannuated / retired whereas there have been only six new appointments at the High Court at Calcutta. While the names of five Judges were recommended by the Collegiums of the Supreme Court of India for appointment as Judges of the High Court at Calcutta on 6th December 2017, the Government of India is yet to approve those recommendations. As a result, not only is the institution suffering for the acute shortage of Judges, but thirteen others names are pending before the Collegium till the first lot of five Judges are appointed. The situation deteriorated so much so that Learned Judges were being allotted three to four different determinations to handle on a daily basis. As a result, frustration and exasperation was writ large as the patchwork was not producing any effective results.

The working strength of Judges in the High Court at Calcutta, as in several other High Courts in the country, is no secret to the Ministry of Law and Justice or the Prime Minister’s Office. Despite multiple requests being made to ameliorate the situation, there was complete lack of response. This compelled the Members of the Bar to cease work from 19th February 2018 to 25th February 2018 initially. During that phase the officer bearers of the three wings of the Bar met His Excellency the Governor of West Bengal and also handed over a memorandum seeking His Excellency’s intervention to overcome the crisis. His Excellency promised the Members that he will put in a word with the Law Minister. Written representations were sent to His Excellency the President of India, The Hon’ble Prime Minister of India and the Chief Justice of India.

Faced with total lack of interest shown by the high offices in New Delhi, the Members were constrained to extend the cease work from 26th February 2018 till 5th March 2018. A letter was dispatched on 26th February 2018 to the Hon’ble Law Minster seeking an appointment at the earliest and drawing his immediate attention to the plight of the litigants. Till date the PMO or the Law Minister has not even bothered to acknowledge the letters written to them. However, on Friday the 2nd instant, newspaper reports suggested that three out of the five names recommended by the Collegium have been approved by the Government of India to be appointed as Judges. Is this enough to withdraw the demand for immediate appointment of Judges to fill up the vast number of vacancies? The perceived arrogance of the Law Minster and the PMO are tell-tale signs of things to come.

The High Courts are the sentinel of the civil liberties of the citizens. It has wide powers not only to supervise the functioning of the subordinate judiciary but to also check any excess or injustice on the part of the Executive. It has ample powers to strike down any law for being ultra vires the Constitution of India. It is the protector of the common man from the high and mighty. It is that infallible pillar of democracy that ensures that the other two branches of administration remain within checks and also guarantee a free voice to the fourth pillar, the Press. So under the present circumstances, will it be unfair to suggest that there is a planned effort to stymie this institution so that the party in power and their ideological mentors can have a free run? Is it possible to establish “Ram Rajya” within the confines of our present Constitution or will “New India” be a step back into medieval times?

With its brand of misplaced theological nationalism, is the present day Government of India, headed for a direct confrontation with the Constitution and hence the High Courts? If that be the mission, the efforts to curtail the powers of the High Courts and to intervene in the appointment of Judges would seem very attractive and apt.

The public considers the lawyers to be a mischievous lot, who abstain from working every now and then. While this reputation is not founded entirely on thin air, the present set of facts provides a very legitimate concern in the way the appointment of Judges is being deliberately ignored. A glimpse of the arrogance and aloofness of the present day Government in New Delhi can be had from the fact that despite the knowledge of the cease work and on receipt of multiple representations, far from addressing these concerns they have not even bothered to acknowledge the receipt of the communications or to grant an interview. To add insult to injury, details seem to have been shared with the Press that only three out of the five candidates recommended for Judgeship by the Supreme Court of India have been approved. This is an affront to the spirit of the legitimate demands being made by the members of the Bar. All that the Government of India needs to do to diffuse this crisis is to hear the representation of the members and to make a commitment about the manner in which they propose to fill up the vacancies within a timeline. This is a very legitimate demand and made in the public interest. The Bar will also make efforts to suggest suitable names from amongst its members so that the problem of the vacancies can be address. Who best would know the proficiency of a practitioner than his/ her learned colleagues and the Judges who hear the arguments made? However, the attitude of the Government makes it amply clear that they are not interested whatsoever in any consultative procedure to tide over this mammoth crisis. In the light of the developments, is it fair to withdraw the agitation till the Government of India publishes in the public interest its commitment to take steps to immediately appoint Judges at the High Courts?

The purpose of the cease work was not only to draw the Government’s long due attention to the Constitutional crisis unfolding in Calcutta but also to garner public opinion so that the step-motherly treatment towards the Judiciary is withdrawn forthwith. The lawyers earn a living practicing before the High Court. It is not, and it cannot be, in their interest to continue with an agitation which directly hinders their bread and butter. The denial of justice to the litigant because of the agitation is a matter of far severe consequences than the loss of income of the lawyers. A problem which could have been solved simply by publicly acknowledging the crisis in the High Court and making a public declaration that the shortage will be filled-up within a timeframe is being unnecessarily aggravated because of the attitude of the Law Minster and the PMO towards the fate of the Calcutta High Court. They are forcing the hands of the lawyers at the expense of the litigant who are yet to fathom the depths of the sinister motive behind crippling the Constitutional Institutions. The time has come to generate mass interest and concern about the fate of the Judiciary and to compel the Government to empower, modernize and strengthen the very institution that will rightfully wield a stick to keep them in place.

There are forces about who have hatched a conspiracy to change the nature and character of the Constitution and our way of life. There are parochial preachers close to the powers that be who are no longer leaving it to our imagination as to what their visions are for the future of the largest democracy in the world. Crippling the Indian Judiciary seems to be the first steps towards achieving this goal – eliminate the watchdog and adopt a lapdog. The present highhanded conduct of the Government and it total lack of response to the demands of the members of the Bar of the High Court at Calcutta seems to reaffirm this suspicion. Therefore, it is high time that the members of the public take up this concern on every forum and in order to safeguard their own rights, have their voices heard in the corridors of power in New Delhi so that the efforts to hinder the efficacy, majesty and the dignity of the High Courts are curtailed in the public interest. The present conduct is a sneak peek into things to expect from those that propound the formation of Hindu Pakistan. Beware.

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