Thursday, February 9, 2023

Courting trouble

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In an unprecedented move, more than one lakh Madhya Pradesh lawyers are up in arms against their chief justice over certain decisions taken by him. who will blink first?

By Rakesh Dixit

There is trouble brewing in the Madhya Pradesh judiciary and it is threatening to become an all-out fight. Trust deficit between the lawyer fraternity and the MP chief justice, Justice Ajay Manikrao Khan-wilkar, following a series of decisions taken by him, has reached unprecedented levels. For the first time, lawyer associations have urged Chief Justice of India HL Dattu to transfer Justice Khanwilkar out of the state.

The trouble started on November 5 last year when the chief justice, in a memorandum, asked his subordinate judges in 51 districts to ensure disposal of cases pending for five years or more by March 31, 2015. This brought him face-to-face with state bar associations representing over one lakh lawyers. So intense did it become that lawyers across the state abstained from courts on February 10 to press for Justice Khanwilkar’s transfer.

The call for strike was given by State Bar Council of Madhya Pradesh (SBCMP), MP Senior Advocates Bar, MP High Court Advocates Bar Association, MP High Court Bar Association (MPHCBA) and district bar associations. However, the Bar Council of India snubbed its state unit and asked it to withdraw the agitation. Its secretary, JR Sharma, said in a letter to the MP Bar Council: “The movement involves a few members trying to lay undue pressure on the high court” and advised the state unit to recall the boycott. But the boycott continued.


The chief justice too is in no mood to relent. He says that the memorandum is in keeping with the national litigation policy, which was announced in June 2011 by then law minister Veerappa Moily. It was meant to reduce pendency of cases and government litigation which forms the bulk of pending cases. Describing the lawyers’ boycott as unfortunate, MP High Court Registrar-General Ved Prakash Sharma said that the chief justice’s memorandum was a progressive step towards speedier justice for people.

However, MPHCBA president, Adarsh Muni Trivedi, argues that the memorandum is illegal as it seeks to set a deadline for disposal of cases, which violates Supreme Court guidelines. He cites the P Ramchandra Rao versus State of Karnataka (2002) and AR Antule versus RS Nayak (1992) cases, where the Sup-reme Court had ruled that setting a deadline for disposal of cases is beyond the jurisdiction of a chief justice. “Fixing such a deadline is possible only through legislative means and this would require amendment in the criminal procedure code,” Trivedi claimed.

What has especially irked lawyers is the warning to judges that “if they fail to do so (meeting the deadline for disposal of cases), they must assign good reasons for it, otherwise adverse entry be entered in their confidential report by the district and sessions judge”.

lawyers protest 1


Lawyers protest against the arbitrary decision of the CJ. (Featured image): Justice AM Khanwilkar, chief
justice of MP



There is also specific instruction to the district and sessions judges that “the concerned judicial officer be directed to dispose of the case within the time-frame and on priority basis by curtailing unnecessary adjournment”. Lawyers fear that this could make courts scuttle a trial without adjudication to comply with the memorandum.
Trivedi says this is the latest among a series of administrative orders issued by the chief justice that have inconvenienced lawyers and high court judges alike and impeded the justice delivery system in the state. But there are other issues too. Indore-based high court advocate Amit Upadhyay says that the lawyers had been in conflict with the chief justice ever since he introduced a new roster system for listing of cases. Since then, he has been issuing a new order every few days.

Justice Khanwilkar was sworn in as the 22nd chief justice of Madhya Pradesh on November 24, 2013. He was earlier chief justice of Himachal Pradesh. When he took over, a confrontation between the Bar and the Bench had already been brewing over implementation of the Law Commission report on the appointment and transfer of judges. It had said judges should not be appointed in the same high court in which their kith and kin are practicing.


What made it worse for Justice Khanwilkar was that soon after being sworn-in, he invited chief minister Shivraj Singh Chouhan for dinner at his residence after he spectacularly won the state assembly elections in November 2013. A few months later, the chief justice called a bunch of petitions related to the state’s biggest admission and recruitment scam aka professional examination board scam from the three benches for hearing in his own court. This caused the perception that the chief justice was being soft on the ruling party, particularly the CM. His move further widened the trust deficit between him and lawyers.

“Not only did the chief justice centralize all cases related to the scam in his hands, he also decided to conduct in-camera hearings so that the media did not get to report the proceedings. His action was bound to raise eyebrows because a host of BJP leaders were involved in the scam,” explains a senior lawyer on condition of anonymity.
AICC General Secretary Digvijaya Singh, whose petition in the high court for a CBI probe into the scam was rejected, says he feels deeply disappointed by the verdict. The chief justice, instead, ordered setting up of a special investigation team to monitor progress of the cases being handled by a special task force of the state police. The investigation is progressing at a snail’s pace since.

Why the pendency?

Lawyers across three benches of the high court in Jabalpur, Gwalior and Indore struck work against the chief justice for the first time in December 2013 when he introduced a roster system for judges to hear all kinds of cases. In the old roster system, high court judges would be assigned specific tasks such as dealing with PILs, criminal cases, civic issues, etc. But under the new system, judges had to take up any case that came up for hearing before their bench. This made it difficult for lawyers, who are specialists in a particular legal field, to appear in various benches at the same time. Advocate Anil Ojha, secretary of HC Bar Association, Indore, says: “After introduction of the system, pendency in the courts has increased by three times in the past one year. It has also increased the cost of litigation.”

On the face of it, the directive to clear cases in a time-bound manner makes sense, given the backlog of cases, but it goes against the guidelines of the Supreme Court. Agitating lawyers have now urged Chief Justice of India HL Dattu (left) to transfer Justice Khanwilkar out of the state.


Justics H L Dattu (1)

However, legal experts say the introduction of a roster system is the right move towards breaking the nexus between advocates and judges. It also aims at bringing transparency in judicial procedures, they contend.

Another move of the chief justice which evoked mixed reactions was implementation of an auto-generated software program for rationalization of assignment of cases. While one section of lawyers hailed it as a much-needed reform to expedite justice and a check on bench-hunting, a majority were unhappy with the arrangement. Bench-hunting refers to petitioners managing to get cases heard by a particular judge and ensuring a favorable order. However, a study by IIM-Indore had analyzed administrative functioning of high courts on filing, listing and disposal of cases. “Administrative rationalization is likely to expedite disposal of cases, balance workflow and increase satisfaction among stakeholders,” the study said. Registrar-General Ved Prakash Sharma said a comparison of cases before and after disposal of cases in 2013 and 2014, respectively, proves the success of the scheme. “In the first quarter of 2013, 27,002 cases were disposed of. In 2014, this went up to 35,880, an increase of 25 percent,” he says.


Justice Khanwilkar also centralized all the powers in case of urgent matters. Earlier, any high court judge in the three benches could hear petitions on urgent matters brought before him. But the chief justice, through an administrative order last year, deprived them of this power. Now, lawyers from all three benches are forced to queue up in the chief justice’s court for appearing in urgent matters.

A high court judge said the chief justice’s penchant for centralizing powers earned him the wrath of the Supreme Court in the sexual harassment case involving a lady additional session judge who had complained against a high court judge in the Gwalior bench. In December last year, the Supreme Court quashed an in-house panel formed by the MP chief justice to probe these charges. The Supreme Court two-member bench, in its order on December 18 last year, requested Dattu to constitute a fresh in-house committee of two high court chief justices and a high court judge—all from outside the state—so that both the complainant and the accused were assured of a fair investigation.

The SC Bench frowned on Justice Khan-wilkar for ignoring a 1999 apex court order mandating the formula of a three-member committee of outside judges to probe allegations against sitting high court judges. Justice Khanwilkar had formed a two-judge probe panel that included a woman high court judge.
It waits to been how this fracas will now be resolved.


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