Calcutta High Court. (Express photo by Partha Paul)
All work at the Calcutta High Court has ceased for over a month, with more than 5,000 advocates from Kolkata’s three Bar Councils calling “cease of work” till the Centre addresses the shortage of judges in the state. The high court is, at present, functioning with less than 50 per cent of its sanctioned strength of judges, leading to a huge backlog of cases; 2,50,000 pending as of today.
Over the past year and a half, 19 names have been sent to the Union Law Ministry as potential candidates, but most have been rejected. Earlier this month, three new judges were appointed by the high court to replace three who retired last year, keeping the total strength at 33. But the end of this year will see three more retirements.
Bar Association of Calcutta president Uttam Kumar Majumdar says, “The situation is dismal and we can’t function like this. We are holding another meeting on April 3 and will decide whether to continue the strike or not.”
While the paucity of judges and subsequent backlog of cases has plagued the state for a number of years now, the matter was first made public in an order passed by a division bench comprising Justice Dipankar Datta and Justice Debi Prosad Dey on July 12 last year. The bench was hearing the matter of Tollywood actor Bikram Chatterjee, who has been accused of causing the death of model Sonika Chauhan in an alleged drunk-driving accident. Chatterjee’s lawyer had filed a petition for anticipatory bail, but by the time the petition came up before the bench, Chatterjee had already been arrested by Kolkata Police.
In its statement, the division bench observed that the high court would lose its efficacy due to the dearth of judges which “the powers that be having the wherewithal to address and resolve have neglected by their various shades of authoritarianism”. The bench, in its order, had directed the Union Law Ministry to ensure immediate appointment of judges or the court would take “appropriate action as authorised in law”.
“The sanctioned strength of judges in this court is 72. Till a couple of years back, the sanctioned strength was 58. Today, this court has a functional strength of 34 judges only. The present functional strength is, therefore, a little less than 50% of the sanctioned strength. During the first six months of this year, four judges have already retired. In course of the next month three judges and by November 8, 2017, another four judges including the Hon’ble Acting Chief Justice would lay down office. In February next, 3 (three) more judges would retire. If no judge is appointed by February 11, 2018, the vacancy would rise to nearly 66 per cent,” said the order.
“Can the nation think of the Lok Sabha in a functional state with half of its elected members? Similarly, can Legislative Assemblies function at half-strength? Again, does one find the bureaucracy functioning years after years without sufficient personnel? No time is spared in making the necessary appointments at the right time to ensure its smooth functioning. This Bench is thus left to wonder as to why only in respect of filling up of vacancies in the High Courts, which are also high Constitutional authorities, there is such a brazen apathy and indifference of the political executive,” the bench went on to say.
In its over 150 years of existence, the most number of judges the Calcutta High Court has seen is 50 on October 30, 2013. (Express photo by Partha Paul)
President Incorporated Law Society of Calcutta, one of the state’s three Bar Councils (the other two being the Bar Association and the Bar Library Club), Mukul Lahiri, says the paucity is “intentional, an already bad situation allowed to deteriorate”.
“This is not a strike. It is an abstinence from normal court work. We believe this is a conscious design to incapacitate the justice delivery system. When the judiciary functions independently, this creates a very uncomfortable situation for any government. Before the Emergency, such a situation was unheard of. After, the government was of the belief that the judiciary should toe the government line; if not, they would make the functioning of the judiciary difficult,” he says, adding that the National Judicial Appointment Commission (NJAC) makes it very clear who will oversee the appointment of judges.
The Calcutta High Court has a Collegium of three judges. Acting judges propose names of senior lawyers for appointment as judges, which is taken up by this Collegium. A police verification is carried out. Once sanctioned by the Collegium, the names are sent to the Supreme Court, which then sends approved names to the Union Law Ministry. The ministry, in turn, send the names to the President of India for final approval.
“There has been some debate over the past few years on whether the executive should have a hand in appointing judges. The draft memorandum of the NJAC makes it very clear. The government does not have a right to veto any name. It does, however, have a right to send back a name. If this name is sent a second time by the collegium, the government does not have a choice but to accept it,” says Lahiri.
To handle the mounting arrears of cases in all courts, high-power committees, including the National Court Management Systems (NCMS) and the Arrears Committees, were formed in 2012. One of the basic reasons for the mounting arrears had been identified to be the low judge-population ratio. The sanctioned strength of all high courts was increased by 25 per cent pursuant to a 2013 recommendation of the NCMS Committee, in 2016. In the Calcutta High Court, even the sanctioned strength prior to such a recommendation — 58 judges — was never achieved.
In its over 150 years of existence, the most number of judges the Calcutta High Court has seen is 50 on October 30, 2013. Between then and October 22, 2014, 12 judges retired and one Chief Justice was elevated to the Supreme Court. The court’s functional strength came down to 37 from 50 within a year.
Eminent high court advocate and Congress MLA candidate in the last Assembly election, Arunava Ghosh, says he has “not seen such a situation in 40 years of my practice”.
“There are 20,000 cases filed in the high court every month. The disposal of cases is quick because the judges simply don’t have the time to spend on each case. So, justice is not being properly served. Even so, the disposal rate of cases is not more than 100 a month. When you file a case, earlier, it would be taken up in a week’s time. Sometimes even less. Now, we have to wait for six months for the case to be heard. A final hearing can easily take up to 7-10 years. Criminal appeals take 10-12 years while the accused languishes in jail. Bail matters are probably the most seriously affected. Let the ministry give us an assurance that they will send us 10 judges in the next two months and we will consider lifting the strike,” he says.
High court lawyer Bikash Bhattacharya says “litigants are turning away from the judiciary” because of the impasse.(Express photo by Partha Paul)
Criminal lawyer Kaushik Gupta says many of his clients are simply “rotting in jail” because of the backlog and now the strike.
“This is a violation of the right to liberty. I am dealing with a number of cases where my client is incarcerated. How will they get back their lost time? Anticipatory bail is also another urgent issue. Therefore, when a case does not come up, an accused will have no option but to go in to hiding,” says Gupta.
Gupta had filed a PIL seeking the formation of guidelines for rehabilitation of human trafficking victims. “I filed this in June last year. The matter is yet to come up,” he says.
High court lawyer Bikash Bhattacharya says “litigants are turning away from the judiciary” because of the impasse.
“This sets a very dangerous precedent. I know of many cases where, because the high court is now completely shut, clients are going to politicians and party offices to get matters resolved. The political parties have now become a parallel judicial system, which is dangerous for a democracy,” he says.
Others have been stranded by the strike. Shekhar Sarkar (52) has been fighting a case against his two brothers for the past 16 years. The dispute is over their ancestral property in Alipore.
“My brothers are trying to claim rights over the property and throw me and my family out. I live in one room in that house under dismal conditions. I am a government servant and whenever I am sent outside, for instance on election duty, things get worse. My brothers disconnect the water and power at home. My daughter was in Class III when I filed the case, now she is in first-year college,” says Sarkar, who won the case in the lower courts. His brothers had then approached the high court.
Tapas Pal (46) has been visiting his lawyer every day for the past two months. His father, Bijen Pal, retired as a professor at Gyanchandra Ghosh Polytechnic College in 2012, but has been refused pension. Pal is now unwell and bedridden and the family is in dire need of money.
“After having run from pillar to post for the last few years, we approached the Calcutta High Court in January this year, only for the court to shut down. We don’t know what to do now,” says Tapas.
Reacting to the judge’s observation, TMC MP Abhishek Banerjee had put up a post on Facebook in August last year, slamming the Centre for it’s “step-motherly treatment” toward the Calcutta High Court. “The Hon’ble High Court at Calcutta is under severe threat of losing its efficacy due to dearth of adequate number of judges being a perpetual concern, neglected by the central government due to authoritarianism. This step-motherly attitude and apathy of the Central Government in appointing Judges in Calcutta High Court is a product of vicious political strategy of its authoritarian top brass. They intend to incapacitate the already over- burdened judiciary of West Bengal and consequently destroy the rule of law in the state and draw whatever political advantage possible out of it,” the post read. He further said that the paucity had severely affected the “ease of doing business’’ in the state.