Siddharth Mohan Nair| The News Minute| February 15, 2015| 2.40 pm IST
"Be aware and vigilant. We are so called Dalits and OBCs. But see the number of Pillamars, Gownders and Mudaliars who are judges in the High Court. No Muslims and Christians. They are misleading the Chief Justice, stealing and enjoying from the share of other communities share in High Court Judge posts from the bar. They have snatched our share for the past 121 years. We have to be very careful in identifying the real thieves. Please think about who are our enemies."
(This was a message doing the rounds among lawyers and reporters in Chennai this week. The SMS has been modified to make it less offensive)
In the city of Chennai, the major elements of law are in shambles; and this coming from inside the very place where justice is delivered - the Madras High Court campus. While government law students are boycotting classes over a probable shift in the college’s location, many lawyers are boycotting the High Court itself.
At the heart of the protests in Madras High Court are deep divisions based on caste and community. For some days, a group of lawyers protested against the manner in which 18 vacancies for judges in the court were filled, the process they claimed was not transparent, but arbitrary and against certain communities.
The Madras High Court Advocates Association (MHAA) demanded that all castes should have a representation in the benches of the High Court of Madras. Members also demanded that the Chief Justice and the collegium should consult them before the final list is prepared.
On Tuesday, when the Chief Justice refused to meet with the association’s members, they created a ruckus in front of his chambers. After the rebuff by the CJI, they boycotted court on Wednesday, and showed their displeasure apparent with a protest march inside the High Court.
The lawyers went one step beyond that as well.
While protesting, the lawyers entered the Chief Justice Mr. Justice S.K. Kaul's courtroom while he was hearing a case, shouted slogans asking him to go back to Kashmir - where he hails from.
Seeking support from peers, the protesting lawyers also asked senior lawyers arguing their cases to stop forthwith and join the protest. However, the Chief Justice paid no attention to the protests and continued on with the hearing of a case before him.
At the direct end of attack by the lawyers himself, the Chief Justice, on Friday, made a remark that he was “anguished” over such behaviour of the lawyers. “Such behaviour of lawyers is a deterrent to good people to come to the bench,” he said.
What does the Constitution say?
All the theatrics was despite the fact that the bar has no official say in the selection of judges. The procedure is clearly laid down in the Constitution and there have been court judgments that provide more clarity to the entire process.
According to practice, it is the Chief Justice of the High Court along with two senior-most judges who prepares a list of candidates from among the lower judiciary and other advocates with a practice of more than 10 years. Earlier, applications were through invitations, but over the last few years, lawyers have started queuing up with their own applications.
The process by itself is opaque, the candidates being chosen based on merit and integrity.
Shortlisted names are forwarded by the Chief Justice to state government and (Central) Intelligence Bureau. These findings, are however not binding. The Chief Minister of a state too can make recommendations.
Once the list is prepared, it is sent to the Governor, and Union Ministry of Law and Justice, later forwarded by the ministry to Chief Justice of India, who after consultation with two judges in the collegium, will make further recommendations.
The finalized list is then sent to the President of India through the Union Ministry of Law and Justice.
But despite an extensive procedure that has been laid down, the MHAA alleges that the system has not been transparent and certain communities have hijacked the process.
“There are already judges from the Mudaliyar and Gownder community, we need judges from others too,” said Srinivasa Rao, the president of Tamil Nadu Youth Advocate Council.
“We waited for two hours to meet the Chief Justice, but he did not meet us,” he said as a justification for barging in into the Chief Justice’s chamber. “There is no court without lawyers,” he added emphasising on their importance.
However, for now, these advocates have decided to call off the boycott. Paul Kanakaraj, the association president, said that the plan now is to place their demands before the Chief Justice of India in New Delhi.
“We will meet the CJI and explain to him our petition,” he said. When asked if their protests are justified as the Constitution did not provide for a clause that the bar should be consulted before making a list, he said that it was “not mandatory” but a “customary practice” that had been followed.
“The bar had not been consulted for long. We want this to happen from now on. We lawyers know which lawyer is good and we can give our opinion,” Kanakaraj said.
Washing his hands off the ruckus created by the protesting lawyers and the “anguish” felt by the Chief Justice over such behaviour, Kanakaraj said that it should “bother those who were involved in it.” “Members of our association have not done that,” he said.
“Such hooliganism in the bar cannot be permitted to thrive. The High Court of Madras is one of the oldest courts set up in India and is held in high regard. Actions like these bring a black mark to the prestigious institution,” a senior lawyer told The News Minute on conditions of anonymity.
