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Untangling the Madras HC turmoil: A bar at war, a question of caste, or business as usual?

Dark times at Madras HC
Dark times at Madras HC
The Supreme Court (SC) on Monday transferred to itself a week-old Madras high court (HC) petition challenging 12 names that were recommended for judgeship at the same HC, after the apex court ordered that judicial review of the list was not permitted and that the HC lacked the “conducive atmosphere” to hear such a petition.

The SC order lifted the Madras HC s stay on the process of appointment of the judges and condemned Madras HC Justice CS Karnan’s thunderous barge-in during court proceedings (he wanted to join in the petition as intervenor).

The petitioner – Madras HC senior advocate R Gandhi – had challenged the name recommendations because, according to his petition:

“the present list of 10 persons from the Bar recommended by the Collegiums of the [Madras HC] in December 2013 suffers from lack of eligibility and lack of effective consultation because the list contains lawyers who do not even come to Courts, with no exposure and even persons with filing of few joint vakalaths in their total professional career have been recommended for various reasons.

Further, the First and Second Judges in the Collegiums are new to the State. They are not aware of the local social problems especially the 2nd judge who transferred recently to Madras High Court.

The judges from other States do not know caste system in Tamil Nadu and they are not in a position to identify the efficient and competent lawyers […]”

‘Local social problems’

Judges’ appointment controversies are not new to the Madras bar: this latest controversy came barely four months after eight out of 15 judges’ names that attracted the ire of the local bar, were cleared for appointment.

“We want accountability, good experience, and good lawyers to become judges. The judges who are proposed are not known to be very good in practice,” said Madras High Court Advocates Association (MHAA) president Paul Kanagaraj.

“We were keeping silent for all these years. But we cannot allow judges without any knowledge, without any experience [to be on the roster]. That is why the association decided to interfere this time,” he added.

Kanagaraj told Legally India that when asked to place the name recommendations on record before the bench hearing the petition, they orally mentioned three Brahmin advocate names they “suspected” were on the list.

He declined to comment on the names to Legally India but according to several independent Madras high court sources, at least two Brahmin advocates were on the list of 12, with the caste of a third suspected Brahmin recommendation being “not exactly confirmed”, since only one of his parents is a Brahmin.

That three advocates with ostensibly Brahmin backgrounds were on the list of 12 (seven judges on the present roster are apparently Brahmin) was a major grouse among agitating advocates who reportedly went to the extreme of crowding and shouting slogans inside the chambers of the high court’s chief justice in protest.

‘Cast(e) in stone’

An advocate who declined to be named told Legally India that belonging to the Brahmin caste was a “practical disqualification” against holding any government posts in the state of Tamil Nadu.

“Tamil Nadu, culturally, is like that. Three per cent of the population is Brahmin but is holding all the important posts. So there is always a discomfort with respect to the Brahmins coming to the top posts. A Brahmin may become the Attorney General of India but he cannot become a Madras High Court judge,” he said.

“The top senior counsel in the Madras HC right now is PS Raman, who is a Brahmin, and a lot of the other excellent counsel are Brahmins as well,” added another advocate who said that Brahmins form a “powerful minority” in the South, compared to North India.

“Caste-issue is secondary,” commented Kanagaraj alleging that some of the recommended advocates in the present list had less than 10 years of practice experience, contrary to Supreme Court norms for high court judgeships.

However, Kanagaraj, who is a political leader belonging to the Dravidian party AIADMK, which is infamous for its anti-Brahmin sentiment, added: “We are not [targeting] the Brahmins alone. What we say is that there are counter communities. Though it is not permissible under the constitution of India but we say why don’t you give opportunity to the under-represented communities. A particular community may perform well but does that mean you say [that] give opportunity only to them? We are saying that why do you give representation to the same community over and over. Give representation to every community.”

Forum for Integrity in Governance founder Elizabeth Seshadri, who was one of the protestors in July against proposed names, disagreed.

“This petition moves on the dangerous line of saying that we should always ensure that unrepresented communities are represented on the bench,” she said. “This is nothing but a political largesse to perpetrate the caste system. Instead of focussing on the process of appointments we are [going into] caste-slotting. This is a dangerous trend.”

Caste slotting

“Can we afford to have a judge who thinks [he is] appointed on the basis of his caste? He will always be obligated to the members of that caste. How can he do justice then?” said Seshadri.

She commented that there were damning political repercussions also in former Madras HC judge and now Chief Justice of India P Sathasivam’s law-day observation that there is a “need for representation of various sections of society at all levels in the judiciary”.

Gandhi’s petition initially came up for hearing on 6 January before justices S Rajeswaran and PN Prakash, but by 8 January it was transferred to a bench of justices V Dhanapalan and KK Sasidharan.

One advocate claimed that Gandhi had objected to the earlier bench because one of the judges is a Brahmin: “Can you imagine the level of [casteism]? We have started slotting our judges. Judges are being told don’t hear this matter because you belong to this community.”

A holiday-centric mobocracy?

Somewhere in the middle of a bar engaging in copious court boycotts, printing of pamphlets accusing judges of casteism, mobbing the the chief justice’s chambers, demonstrating and rallying, a judge heading 14 committees at the HC resigned from it all in disgust.

“The Madras high court has always been a high court where caste has been a serious factor, but it has also been a very activist high court because there is a large contingent of lawyers which don’t have any work,” commented an advocate at the HC.

“This week, for example, the whole week is off for Pongal holidays. Friday, which is a working day, there is every chance that there will be a boycott. Even if the judge issue was not there, a favourite issue is the Sri Lanka [war between army and LTTE] issue. Basically they want the whole week off,” he said.

According to him, Justice Karnan’s calls for the representation of the scheduled minority community to which he belongs is a “hobby horse”, and aspersions that certain judges don’t sit next to him at dinners, are routine.

And the HC’s chief justice RK Aggarwal complained to the CJI on Wednesday that Karnan had barged into his chambers and “hurled a volley of injectives” at him accusing him of being responsible for a problem between Tamil Nadu and Puducherry advocates.

But the participation of most other protesters comes from the fact that 10 per cent of the bar handles 90 per cent of the work at the HC.

“It’s the same group of people, this happens to be the cause at the moment.”

Picture by SenthilChitti07

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