2016 will be remembered for judicial activism. T S Thakur retired after a year of turbulent tenure as Chief Justice, Supreme Court of India. His tenure was marked by sharp pronouncements on serious differences with the executive. He pointed to over three crore cases pending in different courts due to the government sitting over the recommendations of the Supreme Court Collegium on the appointment of new judges. The Karnataka High Court has 50 per cent vacancy. The situation is not very different in several others. The executive has not been reconciled to a large bench of Supreme Court rejecting government’s efforts to end the exclusive prerogative of the judiciary to recommend appointment of new judges.
One witnesses judges across the country making increasingly strident pronouncements asserting the power of the judiciary. The task for the new Chief Justice J S Khehar, who will have a short tenure of around eight months, seems to be cut out to continue with this assertion.
For several years in the recent past the Madras High Court has been witnessing a severe erosion of authority of judicial administration. The highly politicised advocate fraternity of Tamil Nadu, aided by the state government, has frequently thrown to winds discipline and respect to the rule of law. Successive chief justices, transferred from other high courts, seemed powerless to restore order and decorum. Combined with the lack of system and efficient management, cases piled up. It takes years to complete a case. And there were complaints of corruption.
Lawyers resorted to strikes and boycott of courts at the drop of the hat, attempting to disrupt the proceedings of even the bench presided by the chief justice; slogan shoutings were common.
Things reached a crescendo on 19 February 2009 when the Madras High Court witnessed widespread arson and violence. The police station inside the court premises was burnt. Police was unable to control groups of lawyers indulging in violence. There were the usual recriminations of police and the lawyers of one against the other. The latter demanded action against top police officials.
The Justice Sri Krishna Commission report on the happenings stated:
The lawyers behaved as ‘hooligans’ and ‘miscreants’ but the police, which was justified quelling the unruly and rioting mob of lawyers by use of force, went ‘much beyond what was permissible use of force.’
The lawyers appear to have been encouraged by the wrong signals sent out and seemed to think that they could do anything and get away within the court premises.
"The incidents that transpired over a last month or so make it clear that the lawyers seemed to be under the impression that, because they are officers of the court, they are immune from the process of law and that they could get away with any unlawful act without being answerable to the law enforcing agency."
In his report, Srikrishna Commission recommended the Supreme Court to "take this opportunity to exercise its extraordinary constitutional powers and lay down sufficient guidelines for the behaviour of the lawyers within and without the court premises as the bar councils have not been acting as an effective regulatory body of their professional conduct.”
"It would be ideal if the Advocates Act is amended to ensure a better disciplinary mechanism of the profession of law since it affects not only lawyers but also litigants, the administration of justice in the country and finally the rule of law itself," said Srikrishna in his report.
Unfortunately, these could not be implemented. Police, bitten by a passive government and an ineffective judiciary, seemed to have lost the capacity to ensure even a minimum decorum. Caste differences, characteristic of Tamil polity, spread to the court as well, with caste groups demanding representation for different castes. Justice C S Karnan frequently raised this factor complaining of ill-treatment by his colleagues.
Chief Justice R K Agrawal, who had a short tenure at MHC, tried to address these issues. On his transfer to the Supreme Court he expressed distress over the state of affairs: “many of my colleagues here have privately expressed their desire to seek voluntary transfer to other high courts. My colleagues from other high courts are hesitant to come to this court," he said, while delivering his farewell address.
When one thought if 19 February 2009 was the lowest point, one was treated with more shocking display of different sections of lawyers defying the rulings of the court. Section of lawyers in Madurai dared the administration by protesting the judgment to wear helmets and drove in large numbers motor cycles without wearing helmets. When action was sought to be taken against these, bus loads of these landed at the MHC, marched into the chief justice’s chamber, shouting slogans.
The point of no return seems to have been reached. Judges decided to take several firm steps. The court framed rules to take action against such unruly behaviour. Luckily, the state bar council took action by suspending a number of lawyers. Most important among the actions was the one to beef up security. The Chief Justice ordered handing over security to the Central Industrial Security Force (CISF). The state, in continuance of its defiance of several such measures by the Centre, tried to resist this as well. But it couldn’t. CISF took charge of security of the high court premises that costs the state a bundle: around Rs 600 crore a year – an amount that could go well to improve the infrastructure and systems to streamline the operations. However, there seems to be a lot more of peace and order inside the court premises since.
One has also been witnessing several pronouncements from the court that appear to transgress into the executive domain: like the recent judgement warning the state of an order to exhume the body of ex-Chief Minister J Jayalalithaa to find out the truth about her medical treatment at Apollo Hospitals.
An index of deterioration is provided by the steep fall in the number of legal luminaries adorning the Madras High Court. Until three decades ago lawyers from Chennai used to be in demand at Delhi, Mumbai and elsewhere to represent high profile cases. Today even the Tamil Nadu government imports these from Delhi to argue its cases! To argue the case of Shekar Reddy and his associates, one notices leading lawyers like Abhishek Manu Singhvi and Amit Desai landing in droves at Chennai!
The sad part is, few seems to be concerned with these.