Judiciary

Divided house

Print edition : July 22, 2016

Members of the TAJAC protesting at the High Court on March 11. Photo: K.V.S. Giri

Justice Dilip Babasaheb Bhosale, Acting Chief Justice of the Hyderabad High Court. Photo: Nagara Gopal

Protesting advocates who were detained at the Police Training Centre in Hyderbad on June 29. Photo: G. Ramakrishna

Gandra Mohan Rao, president of the Telangana High Court Advocates' Association. Photo: Kunal Shankar

Judges in Telangana resort to the unprecedented act of public protest as they feel they have been short-changed by the process of allocation of judicial officers to the two States after the bifurcation of Andhra Pradesh.

ON June 13, dramatic scenes were witnessed outside the Chief Justice’s chambers within the precincts of the High Court in Hyderabad. Lawyers, coming together under the aegis of the Telangana Advocates Joint Action Committee (TAJAC), openly questioned the manner in which the High Court sought to distribute lower judicial service officers between Telangana and Andhra Pradesh. They even cast aspersions on the integrity of the Acting Chief Justice, Dilip Babasaheb Bhosale.

The cause for this heartburning is a May 3 “provisional allocation” list of lower judicial officers—junior and senior judges and district judges —between the two newly formed States. Telangana judicial officers say the High Court has violated its own guidelines in the division process in order to accommodate the preferences of Andhra Pradesh officers, who have overwhelmingly opted to be placed in Telangana in view of better chances for promotion.

It all began with a circular issued by the High Court on January 12 seeking judicial officers to send in their choice of where they would like to be placed. The circular, apart from giving a deadline, urged confidentiality.

On February 26, however, the Registrar General issued another circular under the title “Guidelines for exercising option by the judicial officers for bifurcation of the Subordinate Judiciary”. This circular spelt out a “procedure for allocation”, giving seniority and nativity as the main criteria for placements. It stated that officers who chose to work in their native State as declared while entering service would be accommodated first. And those who were non-native would be accommodated “subject to availability of vacancies”. A “Revised Option Form” was enclosed with this circular as the “last chance” to state one’s preference. Excess officers from either State would be appointed based on vacancies “at the discretion of the Chief Justice”.

Judicial officers under the recently formed Telangana Judges’ Association (TJA) saw a bias in the manner in which these preferences were sought and in the final list released on May 3. None of the judicial officers Frontline spoke to wished to be identified for fear of reprisals and as judges are expected to maintain a distance from the media.

United Andhra Pradesh had about 900 judicial officers and the Supreme Court, in an order dated December 10, 2015, wanted them divided in the 60:40 ratio between Andhra Pradesh and Telangana. This was preceded by a protracted legal battle in the Supreme Court over the efficacy of dividing the lower judiciary while the High Court remained common for the two States. The 2014 Andhra Pradesh Reorganisation Act stipulates a common High Court for the two States until the constitution of a new High Court for the residuary Andhra Pradesh State. The case, filed by a now-retired Metropolitan Sessions Judge from Hyderabad in May 2014, even before the State’s reorganisation could take effect on June 2, had halted the Andhra Pradesh High Court’s decision to divide the lower judiciary.

Protest march

Things have come to such a pass now that members of the TJA, which claims a membership of about 200, marched to the Raj Bhavan on June 26 seeking Governor E.S.L. Narasimhan’s intervention in the matter. “We did not hold placards, nor did we shout any slogans. It was a silent march to the Governor, as he is the final appointing authority for the subordinate judiciary,” a member of the TJA said. The protest, although only symbolic, sent shock waves throughout the judicial system. The next day, Chief Justice Bhosale suspended the president and the secretary of the association. Another nine judges were suspended the next day.

The Constitution vests administrative authority almost solely with the High Court for the State under its jurisdiction but allows consultative roles for the government and the Governor. Several leading lawyers Frontline spoke to said that this was indeed a rare, if not an unprecedented, act of rebellion by the judicial officers.

Disproportionate representation

A petition submitted by the TJA to the Chief Justice claimed: “As against the Telangana State District Judge cadre strength of 94, 95 officers have been allocated. And out of the 95 officers allocated to Telangana, 46 are natives of Andhra Pradesh. As against 140 District Judge cadre posts in Andhra Pradesh, only 110 officers have been allocated, leaving 30 vacancies. From this it is clear that even though there are 30 vacancies of District Judge posts in Andhra Pradesh, 46 officers from Andhra Pradesh are allocated to Telangana.” It is claimed that this pattern is repeated for the positions of junior and senior civil judges as well. “Thus, in all, 134 judicial officers of various cadres belonging to Andhra Pradesh are allocated to Telangana, leaving 100 vacancies in Andhra Pradesh,” claimed the petition.

Even officers who are natives of Andhra Pradesh acknowledge the overwhelming presence of cadre from their region in the lower judiciary in Telangana. A senior officer posted in Hyderabad said: “That is not because of reservation, but because of merit. There is an exam for entry into the judicial service. Anybody from any State can apply. So, when you can have someone from Karnataka or Tamil Nadu working here, then why not Andhra?”

Indeed, the examination is open to everyone, but is administered by the High Court in the areas under its jurisdiction as and when vacancies arise. The examinations are usually conducted under service rules designed by each State, in this case the Andhra Pradesh State Judicial Service Rules of 2007. Entry is only through two positions: Junior Civil Judge and District Judge. Law graduates straight out of college are eligible to take the Junior Civil Judge examination. An earlier rule which stipulated a minimum of three years of practice before one could take the examination was done away with in 2007. Lawyers need seven years of practice to be eligible to take the examination for District Judges. Applicants are aware that arguments in the courts and even case files can be in the local language. This restricts applicants to those who are competent in one or more of the regional languages. It is only in the High Courts and the Supreme Court that all case files and arguments have to be in English.

At present, the Hyderabad High Court has only 25 sitting judges, while the sanctioned strength is 61. Eighteen of them are from Andhra Pradesh and three are from Telangana. The remaining four, including the Chief Justice, are from other States.

‘Arbitrary’ allocation

Telangana lawyers and judicial officers cite several reasons for the “arbitrariness” in the allocation process. Gandra Mohan Rao, president of the Telangana High Court Advocates’ Association which spearheads the lawyers’ protests, claimed that a difference of opinion “between judges of the five-member advisory committee headed by the Chief Justice, with two members each from Andhra and Telangana”, constituted to deal with the division was one of the reasons. He said a vertical split between the four judges in choosing nativity over an officer’s preference of placement and the Chief Justice’s reluctance to cast his vote in the matter led to the question being referred to the Full Court, with all the 25 judges taking part in the process. According to Mohan Rao, this led to the decision to consider an officer’s preference of placement as the criterion as Andhra judges were in an overwhelming majority.

Telangana officers also point to the practice of choosing one-third of the judges from the judicial services and two-thirds from the Bar for appointment as High Court judges as another factor for so many judges from the Andhra cadre opting for Telangana. The self-appointment process, as laid down by the 1998 Three Judges Case which led to the setting up of collegiums in all the High Courts and the Supreme Court by convention, fills two-thirds of the vacancies with lawyers practising at the courts concerned and one-third from the officers of the lower judiciary under their jurisdiction. A 60:40 division of the 61 judges of the Hyderabad High Court means that 36 would be allotted for Andhra and 24 for Telangana. This leaves Telangana with eight judges to be filled from the subordinate judiciary (one-third of its allotted 24), of which only one is currently serving. Positions of judges lying vacant across India’s High Courts have not been filled after the Supreme Court invalidated the 2015 National Judicial Appointments Commission Act, which was meant to replace the collegium system.

A senior Sessions Judge in Hyderabad said a way out could be to appoint more Telangana judges to the High Court directly from the Bar, leaving the lower judicial vacancies to those from Andhra Pradesh. “This would protect at least the seniority in service,” he said. But senior advocate L. Ravichander, who practises at the Hyderabad High Court and who has thrown his weight behind the Telangana officers, says: “One of the main reasons for the demand for separate Statehood was more jobs for people from here. Therefore, why not fill vacancies in Telangana with people from here? The excess Andhra officers could be accommodated in their State with the creation of more posts. After all, the backlog of cases is massive and India has one of the lowest litigant to judicial officers ratios. Such appointments could at least address this anomaly in the interim.”

Lawyers’ boycott

All this has paralysed the functioning of the judiciary in Telangana’s 10 districts for more than a month, with lawyers boycotting court proceedings. TJA members have decided to go on “mass leave” on June 28 and 29, exposing fissures within the judiciary. TAJAC has even petitioned the Union Law Minister, D.V. Sadananda Gowda, seeking the Centre’s intervention, and so has Telangana’s Chief Minister.

These cracks have only widened over the past two years. Lawyers and academics who actively participated in the Telangana Statehood agitation lent a degree of legitimacy to the demand between 2009 and 2013. But now they feel short-changed as the bifurcation of the judiciary and possible job opportunities and promotions for them have not been adequately addressed by the Andhra Pradesh Reorganisation Act. But the State government seems proactive, with Telangana Chief Minister Kalvakuntla Chandrasekhar Rao even creating a Rs.100 crore “Welfare Fund” for lawyers and offering a separate building to house the Andhra Pradesh High Court in Hyderabad while the new one gets built at Amaravati.

Many in the legal fraternity point to the peculiar situation of Andhra Pradesh’s bifurcation as one of the causes. The formation of three new States in 2000 (Chhattisgarh from Madhya Pradesh, Jharkhand from Bihar, and Uttarakhand from Uttar Pradesh) did not witness such acrimony in the division of their bureaucracy or judiciary. That could be because the capital remained with the residuary State. In the case of Jharkhand, a Ranchi Bench of the Patna High Court was already functioning and it was converted into the new State’s High Court.

There is also the fact that in the case of earlier divisions, the judiciary was bifurcated along with other services all at once. Take, for instance, the case of Chhattisgarh, which was born on November 1, 2000. Its High Court at Bilaspur began functioning on the very same day out of a government high school. “The only judge from the Madhya Pradesh High Court who was willing to relocate was Ramesh S. Garg, who was appointed Acting Chief Justice. I appeared before him,” said Anand Mohan Mathur, who was Madhya Pradesh’s Advocate General between 1980 and 1989. Mathur said a new High Court building was built seven years later, following A.K. Pattanaik’s proposal after he became the Chief Justice in 2005.

Judicial officers in Uttar Pradesh and Bihar mirrored the apprehensions of their counterparts in Madhya Pradesh. They perceived transfers to the new States as dead-end jobs. “Everybody thought of a posting at Nainital [where Uttarakhand’s High Court is located] as a punishment posting. It was much later that they realised the opportunities for promotions after being absorbed into a new State,” said Akhilesh Kalra, who practises at the Lucknow Bench of the Allahabad High Court. Kalra said: “Those who would have retired here as Additional District Judges, who would have never even thought that they would become District Judges, went on to become Supreme Court judges.” Kalra feels that it is this hindsight gained from earlier bifurcations that has led to such a bitter fight between judicial officers in Andhra Pradesh and Telangana.

Continuing stalemate

Back in Hyderabad the stalemate continues. Telangana judicial officers are demanding that the High Court rescind the provisional allocation and recast it, keeping nativity as the main criterion for placement. The allocations have not come into force.

The five-member committee headed by the Chief Justice is expected to address the grievances of officers regarding their allocations. Meanwhile, Andhra judicial officers and lawyers demand that Chief Minister N. Chandrababu Naidu expedite the establishment of the High Court. When Naidu has been able to build a temporary secretariat for the government, building an interim accommodation for the High Court, they feel, should not be too difficult.

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