An unprecedented act

Published : May 21, 2004 00:00 IST

The en masse leave by 25 Judges of the Punjab and Haryana High Court has raised important ethical and constitutional issues.

in Chandigarh

IT was an unprecedented episode in the history of Indian judiciary. Never before had Judges of the higher judiciary chosen to express collectively their protest by refraining from work. It was rather unusual again because the reason for the protest was the actions of their own Chief Justice.

Thus when 25 of the 28 Judges of the Punjab and Haryana High Court went on leave on April 19 without giving any reason to Chief Justice B.K. Roy, the tremors unleashed by their action reached not only the Supreme Court but even President A.P.J. Abdul Kalam, who conveyed his anguish to the Chief Justice of India (CJI), V.N. Khare. All the dissenting Judges returned to work on April 20, following an appeal to some of their senior members by the Chief Justice of India-designate, Justice S. Rajendra Babu.

Justice Babu, who will take over as the CJI on May 2, and Justice Khare, the outgoing Chief Justice, summoned the `leaders' of the dissenting Judges to New Delhi on April 25 and conveyed to them their displeasure over the `strike' as it tarnished the image of the judiciary. Justices Khare and Babu also heard Chief Justice Roy, and appealed to the Judges to bury their differences and work unitedly to maintain the honour of the judiciary.

What precipitated the Judges' decision to `strike' was the notice sent by Chief Justice Roy to two colleagues seeking their explanation for accepting honorary membership in the Forest Hill Golf and Country Club near Chandigarh. A High Court Bench comprising Chief Justice Roy and Justice Suryakant had been hearing for the past three months a public interest petition concerning the alleged illegal construction of the club on forest land, in violation of laws and regulations (see box). During the hearing, the club submitted a list of the names of VIPs, who had been given `honorary membership'. As the list included the names of the two Judges, Justice Roy sought an explanation from them.

The Judges wrote back to Justice Roy saying that he had no jurisdiction to hold them to account for their membership of the club. The matter would have been well within control if the two Judges were left to defend themselves. But some senior Judges came to their defence. A protest letter signed by about 20 Judges was addressed to the Chief Justice.

At an emergency meeting of the Bar Association on April 19, lawyers condemned the en masse leave by Judges "crippling and paralysing the judicial work in the High Court and creating a grave and unprecedented situation". The association called upon the President and the CJI to transfer immediately all local Judges from the High Court. The meeting pointed out that one of the dissenting Judges, Justice Singhvi, who allegedly persuaded the other Judges to join the `strike', had given a 38-page judgment less than two years ago declaring that strikes that shut down courts are "illegal and wholly unjustified".

While strikes by other sections of society could be based on genuine grievances, the `strike' by the High Court Judges was qualitatively different as they did not reveal the reasons.

Investigation by Frontline revealed that there were serious issues that strained relations between the Chief Justice and other Judges. Justice Roy, who hails from Bihar, was elevated from the Allahabad High Court as the Chief Justice in 2002. Known for his straightforward approach to issues of judicial accountability, Justice Roy was inclined to examine every complaint against Judges. In the process, he alienated a good number of Judges, who were not accustomed to requests for explanations by the Chief Justice.

The dissenting Judges hold that the Chief Justice is only primus inter pares, first among equals, and has no disciplinary powers. He has only administrative powers such as assignment of work and drawing up of rosters. This is no doubt true, but the Chief Justice also enjoys some amount of informal authority to ensure that Judges follow an ethical code of behaviour.

The club case was a flashpoint, but communication between the Chief Justice and the Judges had broken down quite some time ago. Some of the dissenting Judges are said to have been boycotting all administrative work, including the inspection of subordinate courts. This has serious implications, as under Article 235 of the Constitution, in the matter of control of the subordinate judiciary, all important decisions are taken by the Full Court, on the recommendations of the Administrative Committee of Judges. "No Judge can refuse to discharge this judicial responsibility," points out Anupam Gupta, amicus curiae in the club case in the High Court.

The High Court's disciplinary control over the subordinate judiciary has been held by the Supreme Court to be a judicial function, since it is conducive to the administration of justice. It is not known to what extent this function of the Punjab and Haryana High Court has suffered, but is obviously a cause for concern.

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