OPINION: Away from Court~II

NEW DELHI (The Statesman/ANN) - ​Calcutta High Court presently has no Chief Justice. Justice Jyotirmoy Bhattacharya has been the acting Chief Justice for quite a few months, but despite the recommendation of the Supreme Court collegium for his appointment as the permanent Chief Justice of the High Court, the Central Government has failed to perform its duty to forward Justice Bhattacharya’s name to the President for his appointment as permanent Chief Justice till his retirement which is scheduled in September 2018.

Further, the advocates say that the names of thirteen more advocates have been sent to the Supreme Court for its consideration, but the apex court has apparently taken no steps so far.

The acting Chief Justice is entitled to fully exercise the powers of the Chief Justice (Article 223) as held by the Supreme Court in Ashok Tanwar vs. State of Himachal Pradesh (2005) 2 SCC 104. It is understood that the advocates concerned have made a request to the acting Chief Justice to initiate more proposals for appointment of advocates as Judges of the High Court.

The three Bar associations namely Bar Association, Bar Library Club and Incorporated Law Society jointly approached the Central law minister and the Supreme Court to expedite the process of further appointments, but to their utter dismay there has been no response. The apparent insult has been rather too much for the striking advocates to swallow as their requests for an opportunity of being heard has also been denied.

Calcutta High Court should have a strength of 72 judges, which number, right or wrong, was long ago fixed by the concerned authority or authorities; but the High Court never ever had the stated number of judges. The actual number never exceeded 50 at any time during the last four to five decades.

Considering the pressure of work, it is time that the maximum number of Judges for Calcutta High Court be increased to the satisfaction of all concerned. The demand for such an increase is based on realities. There has been an increase in the number of litigants in West Bengal over the years and the increase in the number of matters filed in court because of the mounting consciousness of the people in matters related to their constitutional and legally enforceable rights.

The ever-increasing disparity between the number of matters filed in Court and the number of cases effectively disposed of in course of a year results in a huge backlog.

Although the advocates are answerable to their clients, they do not have any satisfactory answer when the matters do not appear in the peremptory list for disposal for months and years together. The intricacies of how the matters come in and go out of the peremptory list are often unfathomable even by an experienced advocate. Even those matters which appear in the peremptory list for hearing have close resemblance with the children’s snake-and-ladder game for a variety of reasons.

The present actual strength of judges at the High Court appears to be 32, but then a few are also due to retire within a few months or at most within a year or so and two of them alternately hold Courts in Andaman & Nicobar Islands which are under judicial and administrative jurisdiction of the Calcutta High Court. Because of the utterly inadequate number of judges, every judge works under an enormous workload.

The advocates are therefore bound to complain (rightly or wrongly) that they are not having adequate time for their clients to make submissions. Many of the clients leave the court with the grievance that their advocate could not spare enough time to place his case before the court as it ought to have been placed according to the client’s instructions.

Quick disposal does not always help to clear the backlog because it may simultaneously lead to more appeals and hence the backlog remains the same. Even if the judges would love to hear more arguments and submissions, time does not permit them to do so. They are also dissatisfied for not being able to discharge their judicial duties as they would love to discharge. Many clients also do not have the means to go to the Supreme Court to set right the wrongs, if any, committed by the High Court. Delay in disposal may also cause delivery of injustice instead of justice. In the net, the judiciary, which in India has so far been held in high esteem, will fail to command its usual respect.

In such an awful situation the advocates of the High Court have taken an extreme step as they had no alternative. The advocates of Orissa High Court had also adopted a similar resolution and their strike was more prolonged. The advocates of Karnataka High Court, Telangana and Andhra Pradesh High Court are also restive.

The critics and sceptics fear that the complaint of non-appointment of High Court judges appears to have originated only in those states where the government has been formed by parties other than the Bharatiya Janata Party. The political critics eye this commonality in a different way and this is not a healthy sign for a democracy with a federal structure.

Does the party that forms the government at the Centre have a different political agenda for the judiciary?. If that is so, we must be headed towards a disastrous situation. The Judiciary, in reality, may lose its independent identity altogether. The executive will then be its supervising authority, which is against the constitutional spirit of our Constitution and is reflected in the cry for the independence of the judiciary.

The sacred constitutional doctrine of separation of powers, which I had examined in one of my articles published in The Statesman on 31 May and 1 June 2013 will have to be sacrificed at the altar of the executive’s menacing political agenda.

That fear, it is fervently to be hoped, has no basis. The people of India will stand together to uphold the Constitution. It cannot be argued that the advocates of Calcutta High Court have indulged in the luxury of not attending court only to incur the wrath of the Supreme Court , the litigants, and the people at large. All the constitutional functionaries have not performed their duty to appoint judges at the High Court collectively with a view to reach an agreed decision subserving the constitutional purpose.

It was very easy for the Supreme Court of India to set the ideals from the high table, but it is indeed very difficult for them to actively create conditions for others to follow the ideals so prescribed. Continuous inaction on the part of the constitutional functionaries appears to be subversive of the constitutional expectations.


(The writer is Barrister and Senior Advocate and former Advocate-General, West Bengal)


  • Away from Court~II


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