Tuesday, August 29, 2006

STRIKES

Tarts and lawyers are the two oldest professions in the world. And both aim to please. But to please whom- Opinions may differ and notwithstanding legal semantics. We lawyers, like tarts, must please our clients, customers. By boycotting the courts we fail in our primary objective - getting relief for them. Besides one must consider the morality of members of a noble (if it is still noble) and one might say essential (certainly true of tarts, but debatable for lawyers) professions going on strike. It undoubtedly interferes and obstructs the course of justice. Well in the legal world when someone does that, he commits a contempt of the Court.

If history serves me right, strikes were unheard of in the pre-independence era. Apart from the calls given during the freedom struggle to boycott all institutions, including the courts, it was never resorted to. In independent India the first one was when Justice AN Ray superseded his three colleagues, after Keshvanand Bharti case, to become the Chief Justice of India. Since then strikes have never looked back. They are on the rise. It is not only the Indian population, which is on the rise.

We go on a strike, for every conceivable issue, irrespective of any issue being conceived. Are they proper? Do we achieve anything? I can't think of any reason for which a strike should be resorted to. We all know what was the impact of the first landmark strike of independent India when Indira Gandhi superseded Justice H.R. Khanna (due to the Habeas Corpus case decision), a judge in whose honour, according to the New York Times, a monument should be erected in every city. We, the lawyers, wanted to constitute an Independent Judiciary but instead of that laid down a sound foundation for strikes.

YV Chandrachud (Retd. Chief Justice of India) has occasion to say that legal system is on
'the verge of collapse.'
RS Pathak (Retd. Chief Justice of India) took some bite out of it,
‘... [It is] merely in a state of crisis.'
Two eminent judges may debate about it but the fact remains that the system, given the present state of affairs, if it has not done so already, will wither away. In Allen Vs Alfred McAlpine ,1968 (I) AllER 543, Denning rightly remarked,
‘Law’s delays have been intolerable. They have lasted so long as to turn the justice sour.’

True, neither strikes are the sole reason for delays nor will their abolition clear off the delays, but the first and foremost question is of the right mental attitude to tackle the problem. And we must begin with what we the lawyers can do- stop strikes.

I began this note with tarts. Let me end up with them. I am quite charmed by them. They never claim to belong to a noble profession. They are not hypocrites. If history is any witness then tarts do have gone on strikes, then why should we also.

Wednesday, August 16, 2006

FOR THE LOVE OF THEMIS

This article describes the conditions of the law courts in the country. Themis is the Greek goddess of justice. She is blindfolded and has a pair of scales in one hand and a sword in the other.


What films are to Bombay, law is to Allahabad. Despite the University’s reputation for churning out civil servants, law is Allahabad’s best industry. It has produced some of the best legal minds in the country. Allahabad has a High Court, Board of Revenue, a District Court, Labour Courts, a Sales Tax Tribunal, and Income Tax Tribunal, and a Services Tribunal. You think of a court and Allahabad has got it. I still wonder how come the Supreme Court was established in Delhi.1

Every alternate house in Allahabad is a house of a lawyer or a judge. The ‘legal’ ethos is omnipresent. But alas- it is conservative. Despite giving Amitabh Bachchan to the nation, one never sees a boy and a girl walking hand in hand. What a pity - Love affairs are still regarded as scandalous. And as far fashion? Allahabad is still a village. Nothing new happens here. It was and it still is a sleeping town. But one place in Allahabad never slept: the law courts. If you went to the courts, you heard the best; juniors better than the seniors. The activity was brisk. But all that is now gone. Something is amiss. There is a crowd, but nothing seems to happens.

The High Court is busy doing admission and order cases. There is no time for final hearing. One has even forgotten its spelling. I hope I got it right. If one has a fresh case then one is busy. May be the fresh case will take only two minutes, but one has to wait at least for two hours.

Lawyers are not idle. They are busy. But busy with what? Almost all the lawyers spend their time from ten to four without uttering a word. What a waste! Imagine lawyers spending all their time not in arguing, but just waiting for the case to be taken up. And seldom are they taken up.

It is not that the High Court does not function. It does. Yet the net result is zero. It is frustrating. Well, maddening too. If one side has a stay, it is difficult to get it vacated. You spend a lifetime getting a case listed and another getting the matter taken up. The stay order is invariably left to the final hearing, which rarely happens.

There are insufficient chambers for the lawyers. There is no place to sit and work. One has to roam in the corridors. Soon that will also end. There will be no place in the corridors. The population explosion has hit the High court also.

The Lawyers are in courts from ten to four. But they do nothing. Yet they cannot leave the court, because they have to watch their ‘sleeping cases’ No lawyer can afford to take the risk of leaving the courts, for if the case is left out, it is passed over for years. This is true not only for the courts in Allahabad, but for all the courts of the country.

It was Charles Dickens in Bleak House who had said ,
‘This is a court of Chancery-which so exhausts finances, patience, hope.'
In this century it has been repeated by Lord Denning, ‘Law’s delays... have lasted so long as to turn justice sour' (Allen Vs Alfred McAlpine 1968(1) AllER 543) This is so true for our courts.

The lawyers earn good money, but they have to spend a lifetime in the courts. Is this the way to serve ‘Themis’? Is this the purpose of life? Does anyone have any other suggestions except the one, to fill-up at least all vacancies that were never filled for all these years except for a short time when the Janata Party was in power?

I often wonder if the solution is that simple. If it is so, then why the hell does it strike everyone except the government. And secondly all lawyers should go to hell and so should the judges. In any case that is the place where they all finally land up. At least all the lawyers do. I being one can vouch for it.2



1Many narrate a story. One does not know if it is true or mere fancy. According to it the Supreme Court was to be established in Allahabad. Pandit Nehru wanted it. But Mrs Kania preferred Delhi. Nehru reluctantly agreed. After all her husband was the 1st Chief Justice of India.

2This piece was written many years ago when I was a lawyer. Since the publication of the 1st edition, I have become the permanent Judge of the Allahabad High Court.

COMMENTS

This section contains articles on different incidents and topics of immediate interest- some controversial, some debatable.

Note:
The articles For The Love Of Themis and Strike are satirical and are in a lighter vein and address related problems. Justice OP Jain after the 1st edition sent a letter saying,
'Two main problems facing the judiciary are overcrowding and strikes as you have rightly pointed out in chapter VI of your book. I hope some day you will find time to give suggestion to cope with both these problems'.
Frankly I must confess, there are no short – term solutions. Control of population, increase in the strength of judges, greater emphasis in the written submission in contrast to the oral advocacy, better code management (applications of computers and management techniques), more unfortunately among the judges and most importantly cultivating a work culture seem to be the only long term solutions.

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