Friday, August 19, 2011

The High Court of Judicature at Madras at 150

The High Court of Judicature at Madras at 150

JUSTICE K. CHANDRU

August 15, 2011

The Esplanade Road with the Madras High Court on the left. Circa 1905. Photo: Vintage Vignettes

As the Court, which has many firsts to its credit, enters its 150th year and celebrations are being planned in a big way, it is high time a social audit was done on its performance.

August 15, which we celebrate as our country's birthday, is also incidentally the birthday of the Madras High Court. It was born 85 years before India got its Independence. The Indian High Courts Act, 1861 passed by the British Parliament enabled the colonial government to establish High Courts of Judicature in India. It merged the earlier Supreme Courts functioning in the Presidency Towns along with Sadar Adalats and established High Courts in the three Presidential Towns of Bombay (Mumbai), Calcutta (Kolkata), and Madras (Chennai). The Act authorised Queen Victoria to issue letters patent under the great seal of the United Kingdom to erect and establish High Courts of judicatures.

The court at the time of its establishment was required to discharge cases with "justice, equity and good conscience." Though the charter for the establishment of the High Court of Madras was issued on June 26, 1862, the Madras High Court was inaugurated on August 15, 1862. After its initial functioning at the present Chennai Collectorate, it moved to the present campus in 1892.

The High Court initially administered its jurisdiction only within the Presidency town. Its jurisdiction got extended to the entire Presidency subsequently. Being the High Court established by the Act of the British Parliament, it had the power to issue prerogative writs. The power to issue writ in the nature of habeas corpus was curtailed by Section 491 of the Cr.P.C. (1898). After the enactment of the Government of India Act, 1935, the power to issue habeas corpus writ was restored. Subsequent to the enactment of the Constitution (1950), the High Courts were recognised by the Constitution and the power to issue writs, orders or directions was conferred on it under Article 226. The power under Article 226 became a potent weapon in the hands of citizens as against acts of States to keep it under check. It was held to be part of the basic structure of the Constitution. No constitutional amendment can divest that power [L. Chandrakumar's case – (1997)].

After the States Reorganisation, many parts of the Madras Presidency went away to form Andhra Pradesh, Karnataka, and Kerala. Those High Courts were called the Andhra Pradesh High Court, the Karnataka High Court, and the Kerala High Court, and named after those States. But the name of the Madras High Court remained unchanged notwithstanding Madras becoming Chennai. It is incongruous that even after the establishment of the Madurai Bench of the Madras High Court (2004), it is still called the Madras High Court. It is high time it was called the Tamil Nadu High Court.

Since 1892, many changes have taken place. The beach opposite to the High Court, popularly known as High Court Beach, disappeared thanks to Port Trust cornering the place. The Light House beaming its light over the city, which was housed within the High Court building, was closed. It is ironical to have facade lighting arrayed to see the old Light House in the evenings.

But within the High Court, many things have remained unchanged: the Silver Mace bearers going in front of the judges to the Court, lawyers and others addressing judges as My Lords and Lordship and wearing colonial robes (black coat and gown). Even women judges are to be called My Lord and Her Lordship. Even after the Bar Council of India resolution No.58/2006, dated April 9, 2006, lawyers continue to address the court with honorifics such as My Lords. Strangely, though there is no law prescribing robes for the judges, they adorn the same attire and refuse to change the customary practice.

As the Court enters its 150th year and celebrations are being planned on a big scale, it is high time a social audit was done on its performance. The 150 years period will have to be necessarily split up into two parts, that is, the colonial and the post-colonial period. At the time of its establishment, judges were solely appointed by the Crown, two-thirds of the vacancies were to be filled up by English and Irish barristers and bureaucrats drawn from the covenanted civil services. Judges had to serve during Her Majesty's pleasure. While the Government of India Act, 1935 provided some changes, it was only after the Constitution was adopted in 1950 that a constitutional framework for High Courts was evolved.

Any study on this institution must cover the functioning of the Court under the colonial government to know its role during the two World Wars and how far it had acquitted itself. There were instances when lawyers who participated in the freedom struggle were punished and had their names removed from the bar roll. The cases of detenues' appeals during World War II were dealt with by British judges in a secret manner and records relating to appeals under the Public Safety Act are yet to be explored by historians.

Undoubtedly, the Madras High Court is the first in many respects. It is the first High Court whose judges have declared their assets and put it up at the official website. The judges have also adopted the "statement of values" evolved by the Supreme Court (1997). The judiciary here represents a wider cross section of society compared with many High Courts in India.

The Madras High Court tops in the rate of disposal of cases in India. But the ever-increasing load of cases has created problems of space not only for lawyers and litigants, but also for the system of keeping records and maintaining them. The number of Tribunals created has taken away the powers of the High Court. The systematic deprivation of the High Court's power is not conducive either to the independence of the judiciary or to the rule of law.

Even after 61 years of the Constitution, the High Court is still not allowed to have Tamil as the additional court language. Though the Court gave its consent in the year 2006, the presidential notification is nowhere in sight.

The colonial practice of having a summer vacation and working 210 days in a year is clearly a huge waste of human resources. It is high time the courts functioned like any other public offices round the year. Being sentinels of justice, the doors of the courts should never remain closed. They can be operated in such a way that leave can be granted on a rotational basis to judges.

Work stoppages by lawyers are another evil that has crept in. Even after the Supreme Court's judgment in Harish Uppal's case (2003), the High Court continuously lost 30 to 40 days due to work stoppage by lawyers in the last few years.

The role of lawyers is an essential adjunct for proper maintenance of the court system. Unbecoming scenes that are witnessed in courts are largely on account of lack of proper training in law and ethical values. The justice delivery system depends on the quality of the Bar. The improvement of legal education in the country must be taken up as a priority.

All stakeholders must ponder over the ills plaguing the justice delivery system and strive for a people-oriented justice delivery system. This is the imperative need of the time when the entire nation debates on the Judges' Accountability Bill and vociferous cries are heard for inclusion of the higher judiciary under the Lok Pal's ambit.

With mounting arrears and a huge backlog of cases, we are sitting over a volcano. The latest statistics given to the press by the High Court reveal that there are more than 400,000 civil cases and around 50,000 criminal cases pending for disposal.

In the words of the Supreme Court of India: "People in India are simply disgusted with this state of affairs, and are fast losing faith in the judiciary because of the inordinate delay in disposal of cases. We request the authorities concerned to do the needful in the matter urgently to ensure speedy disposal of cases if the people's faith in the judiciary is to remain" (See: (2007) 11 SCC 37). The Supreme Court once again warned that "many people have started thinking that justice will not be done in the courts due to the delays in court proceedings. This is indeed an alarming state of affairs" (See: (2007) 14 SCC 452).

The top priority must be to find effective ways and means in bringing down the pendency so that people at large and litigants in particular are assured of a proper and prompt justice delivery system.

"To none shall we deny justice

To none shall we delay justice

To none shall we sell justice"

The 'Magna Carta' in which these words are found was repealed by an official Act of Parliament, yet it must reverberate in our zeal for justice and must not be forgotten in the year-long festivities to celebrate the High Court's 150th year.

(Justice K. Chandru is a Judge of the Madras High Court.)

Courtesy_


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