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Updated: September 12, 2013 01:53 IST

A judgment in poor taste

K. Chandru
Comment (35)   ·   print   ·   T  T  
The Hindu

Protests against the nomination of judges from other States to the Madras High Court are misinformed and run contrary to the system of judicial appointments in the country

The recent nominations to the judgeship of the Madras High Court have created a lot of stir and noise in various quarters. The collegium of the Madras High Court (the acting Chief Justice and two senior most judges) recommended 15 names for appointment as judges of the court. Excluding the two from service, 13 were from the Bar.

During the process of consultation, one advocate withdrew his consent, thereby leaving 12 names from the Bar for consideration by the collegium of the Supreme Court. The said collegium, on the basis of inputs from the State government as well as the Ministry of Law and Justice, took note of the objections raised by a section of the Madras Bar and recommended only six names of advocates to the Law Ministry which, in turn, will be forwarded to the President of India for issuing warrants of their appointments.

Misinformed argument

The Supreme Court collegium reduced the list — recommended by the Madras High Court collegium — by half, thereby indicating that it had applied its mind to the names recommended. However at this juncture, certain misinformed lawyers raised protests with reference to two names, S. Vaidyanathan and P.N. Prakash, stating they were “outsiders” to the State (Tamil Nadu) and hence could not be appointed. A leader of a political party also joined issue stating that it was not the practice to appoint persons from other States as judges in this State.

Before examining the merits of those protests, it may be necessary to state that none of the protesters has objected to the system of appointment based on recommendations by the collegium. In the present case, the Chief Justice of India, P. Sathasivam, who hails from Tamil Nadu, is familiar with the names recommended.

The argument that persons from one State cannot be appointed as judges of another is not based on sound facts. In support of this argument, it is stated that M.N. Krishnamani (hailing from Tamil Nadu) was denied judgeship of the Delhi High Court. Actually it was R. Venkataramani (a Senior Advocate in the Supreme Court) upon whose name being recommended, there was protest by a section of the Delhi Bar in the late 1990s. Later, in 2004, S. Ravindra Bhat (hailing from Karnataka) was appointed. Likewise, in 2006, Dr. S. Muralidhar, a gold medallist in law from Madras University, hailing from Tamil Nadu, was appointed to the Delhi High Court.

During the 1990s, the Bombay High Court saw the appointment of Justice Sri Krishna, who subsequently got elevated to the Supreme Court, as well as the appointment of Justice Radhakrishnan. Both were from south India. The outsider theory now being advanced is contrary to the Constitution of India. Under Article 3, Parliament can create new States or alter the existing States. Under Article 14, the state cannot deny equality before law to any person. Under Article 19, a citizen of India is entitled to reside and settle in any part of the territory of India and can practise any profession or carry on any occupation. Article 16(2) specifically bars discrimination based on place of birth or residence in the matter of public employments.

Even selection of district judges belonging to the State judiciary is pan-Indian. In the matter of appointment of a High Court judge, the requirement under Article 217 is that the person being considered must have 10 years of practice as an advocate of the High Court or must have held 10 years in any judicial post within India.

It is now alleged by a section that two out of the six names cleared belonged to Kerala and hence they should not be appointed. It has to be seen whether such assertions are sound. Subsequent to India’s Independence, States were formed on linguistic basis. States Re-organisation Commission (SRC) was formed to suggest the basis on which linguistic States could be formed. The then Madras Presidency comprised areas in which Malayalam, Kannada, and Telugu speaking people lived. The areas in which predominantly Tamil speaking people lived were carved out form the Madras State (presently Tamil Nadu). The Malabar area, including Palakkad, was merged with Cochin and Travancore and is now called the Kerala state.

Likewise, some parts of Kannada speaking areas of the Madras Province were merged with Mysore and became the Karnataka State. Even earlier, the Andhra State was out and areas comprising coastal Andhra, Rayalaseema and Hyderabad state were merged to become Andhra Pradesh. Even after the formation of the linguistic States, the Constitution under Articles 29 & 30, protected cultural and educational rights of linguistic minorities. The States Re-organisation Act also gave legal guarantee to persons who chose to live in the same State without moving to their language state.

Since the objections were raised on two specific names, it is necessary to find out if there is any truth in them. Advocate S. Vaidyanathan’s father Subramaniam was an employee of Parry & Co, even before India’s Independence. In association with V.G. Row, then a leading barrister, he founded the Commercial Employees Association, the first trade union for employees working in shops and commercial establishments. Vaidyanathan studied in the Singaram Pillai High School at Villivakkam. He declared his mother tongue as Tamil in the documents submitted to the High Court. He did his graduation and law in Madras. Ever since his enrolment as an advocate (27.7.86), he has been practising law in the Madras High Court.

Similarly, advocate P.N. Prakash got his B.A. degree from Madras University and studied law in the Madras Law College. Ever since his enrolment as an advocate (18.1.1984), he has been practising in the Madras High Court. He was appointed special public prosecutor (SPP) for narcotic cases as well as for customs and excise.

Gross injustice

When the two advocates were born and brought up in Chennai, completed their college education in Chennai and have been practising in the Madras High Court, opposing their names (even after it has been approved by a collegium headed by the CJI after elaborate consultation) is certainly uncharitable and uncalled for. To call them outsiders is gross injustice to them and amounts to robbing the constitutional guarantee given to them.

Though it is called the Madras High Court, it has jurisdiction over entire Tamil Nadu and the Union Territory of Puducherry. Puducherry comprises not only Tamil-speaking areas (Pondicherry and Karaikal) but also a Malayalam speaking area (Mahe) and Telugu speaking area (Yanam). Being the High Court for the two territories, it has to fulfil the aspirations of all persons living in the two territories.

Therefore to talk about outsider or insider is a meaningless exercise. It is time the demand that sons of the soil alone be elevated to the higher judiciary was rejected as such demands do not find a place in the constitutional scheme of judicial appointments.

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

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This is nothing but the misfortune of India,the people who are sitting to give justice to fight for
Justice are following the path which followed by
The chip the militant ......they must know the constitution they must know all people are equal before law and have equal opportunity.......the advocate who are the saviors of constitution in one or the other way.....are doing opposite .......now who belives them?????

from:  Vivek Singhania
Posted on: Sep 15, 2013 at 14:15 IST

If state HCs are having jurisdiction of a particular area and when they've more understanding of that area, May it be language, culture, problems etc.Why not the people of same state be judges of that HC or in any other government services of that state may it be Madras or Mumbai or Guwahati or any other place in this country? Or negligible persons should be kept in respective government institutions. Instead of giving the issue colour of regionalism we should think more practically. .!!

from:  Sagar Dhumal
Posted on: Sep 13, 2013 at 18:46 IST

This entire issue is the creation of Judges themselves. Is there any
open criteria or yardstick or seniority as to how these 13 advocates
found their names in the nomination list prepared by the High Court.
How can the acting chief Judge could have become aware of these
advocates within a short period of his stay at Chennai? Is he sure the
advocates other than these 13 are not fit for elevation and at what
grounds? If there was merit in the nomination of 11 left over names
the Collegiums and the Judiciary would have surely over ruled the
objections. Is there any rule of ratio between serving Judicial
Officers of the State and the Advocates? How come 13 advocates were
nominated as against 2 serving Judicial Officers? Why you favour
mostly the advocates than the Judicial Officers (District Judges) and
invite such criticism and protests destroying the name and reputation
of High Court and the Constitution? Is it not an opportunistic
outreach taken under the guise of Collegium system?

from:  Prof. N. Gunachandran
Posted on: Sep 13, 2013 at 15:05 IST

Justice Chandru may not be aware that Justice B N Srikrishna grew up and
studied in Mumbai and is hence not an outsider there in any sense.
The so-called reason for the present protests may be just a smokescreen;
the real reason may be caste prejudice. This is easy to verify if the
information is given!

from:  R S Chakravarti
Posted on: Sep 13, 2013 at 13:13 IST

It is unfortunate that regionalism, which is deep rooted in India,
threatens to disintegrate the country. It is the talent, and not the
regional or the linguistic chauvanism, that should be considered for
any appointments of national importance. In the appointments to IAS,
IPS, IFS, armed forces and the national pubic sector undertakings, it
is the merit that gets precedence. That being the case, there is no
reason why the national talent should not similarly be recognised in
the appointments to the judiciary also. Gone are the days when the
judicial officers are confined to the states in which they are
appointed. They are transferred from one state to the other. Further,
how are you going to decide who is a local and who is an outsider.
With several central government and central pubic sector employees
subjected to periodical transfers, their children do not belong to any
particular state, as they move with their parents. Broader outlook is
the need of the hour.

from:  K V Laxmi Prasad
Posted on: Sep 13, 2013 at 04:27 IST

100% correct........Every high court should have a mix of judges from
different states.......

from:  kirubakaran
Posted on: Sep 13, 2013 at 01:19 IST

We have to deal very strongly with elements having narrow parochial
mindset and who are the real divisive forces in India.
The SC should stick to its guns and go ahead with the appointment
If we give in now India will go back to the 16th century when all
foreign powers found it easy to establish themselves.
old politicians who have done enough damage to the state and country
have to be dealt with severely by the people

from:  KRISHNASWAMY V
Posted on: Sep 12, 2013 at 23:07 IST

Because of the disunity amongst lawyers and their short sightedness, the politicians in power tries to take advantage of such weakness. The collegium of the supreme court and of the High court will soon lose its authority to appoint judges on their own as Kapil Sibal is bringing a " judges appointment amendment bill' ensuring that ciminal lawmkers also has a say in such appointments.

from:  sundaram
Posted on: Sep 12, 2013 at 21:28 IST

Formation of linguistic states was from a "tribal " and "herd" mindset
and it is no wonder these operate at all times; these also become
handy to promote vested interests. Agreed merit alone should not be the
criteria in our selection policy but it should be given priority after
other social factors are given their due place.

from:  S.Rajagopalan
Posted on: Sep 12, 2013 at 17:21 IST

their appointment is in a constitutional rythm and any attempt to
protest it is against the integral values and solidarity of nation and
is a clear depiction of regionalistic feelings against the basic ethos
of constitutionalistic edifice.......we need not to promote and seek
such protests which dismantle the class consciousness and value
consensus of the society and against the values of social integration
and a feeling of indianess....the sole criterion for such appointments
is merit and meritocracy and intelligentsia cannot be ignored
howsoever distanced by state differential barrier ..........

from:  CHANDRA PRAKASH TIWARI
Posted on: Sep 12, 2013 at 17:14 IST

Dear Justice K. Chandru Sir,
That point made in the case by you is very much valid. We as a common citizen of India may have such thoughts of Statehood feelings due to lack of awareness about the provisions made in our constitution which is applicable to every citizen of this country . However, in spite of being the well informed and learned practicing Advocates and part of Judicial system, still raising such points by certain section questions the provisions made in Article 14, Article 16(2) and Article 19 and learned decision of the Collegium which is unjustified. May the justice prevail.

from:  LALIT KUMAR
Posted on: Sep 12, 2013 at 16:18 IST

It is true that the states of the Indians union were divided on the basis of the language. But the people have the right to live wherever they want. No one can say that the Tamils should live only in Tamilnadu. The constitution gives one the freedom to live wherever they choose to live. The officers in IAS,IPS and other central services and defence personnel are posted all over the country. This is only to make them think that they belong to India and not to any particular state. The same applies to the judges of the High court and the Supreme court.

from:  A.Michael Dhanaraj
Posted on: Sep 12, 2013 at 16:04 IST

Dear Ms. Vandana,

Thanks for your response. My comment was not specific to this article. Generally appointing senior officers - officers who run the district / state / judicial system in completely unfamiliar places (I have seen Tamil/ Keralite IAS officers in UP and Bihar unable to manage the government files which still operates on 'notes and comments' system completely written in Hindi) is not productive. In fact, it is completely unproductive. Their initial golden years when they are really enthusiastic, are lost in understanding the language and culture. By the time, they manage to grasp somthing, they are transferred.

from:  Ilango Bharathi
Posted on: Sep 12, 2013 at 14:29 IST

In our country exception to the rules plays predominantly than the
original intention of the rules. When it is the case of appointment of
judges the relevant constitution provisions to ensure Right to
Equality is being quoted by our Judiciary as if we are all Indians.
But the same judiciary allowed regional reservation based on
caste,birth, residence under the camouflage of upliftment of socially
and economically backward groups. All the state are following
Nativity Certificates criteria in one form or another form for
admission to Schools and colleges and for employments purpose against
the Supreme Court Judgements. The states as well as our courts follow
the Dictionary meaning of "nativity" despite our forefathers avoided
it in our Constitution. Such encouragement by our weak judiciary
aiming SONS OF SOIL theory is one of of the reason for this issue. Let
the judiciary shares the pains of our own citizen at par with others
atleast on this issue.

from:  P ANNADURAI
Posted on: Sep 12, 2013 at 14:08 IST

These persons are obnoxious weed and should have been behind the bar for their anti india rhetoric. I am also very much aggrieved by the author, who stressed that the distinguished lawyers have been not only imparted their law degree from Madras but also have been practising in Madras highcourt and thus indirectly giving them a point. Does our constitution forbid any body on the basis of race, sex, place of birth etc? It is very strange that the place atleast where, it is believed that the values, principal and ethos enshrined in our constitution would be preserved and upheld but very disheartening that even there these parochial elements have begun to raise their parochial agenda. They should be dealt sternaly and their every attempt to shatter the unity and integrity of india should be nip in the bud as this might seem very trivial at this juncture but not taking action against the would embolden them. If there is no law to penalise them atleast they should be socially ostracise.

from:  Gopendra Dwivedi
Posted on: Sep 12, 2013 at 13:40 IST

To Ilango Bharathi: People from within the state will come with a mental
baggage like some may be close to DMK, so will view it from that point
of view, so it is better to recruit people from outside so as to ensure
impartiality and that is the rationale behind All India services.

from:  sourabh
Posted on: Sep 12, 2013 at 13:28 IST

What a Shame. We call ourseves as largest democracy in the world and to the contrary how we think so narrow. Jesalousy, personal rivalry and unable to raise to the modest standards in our profession makes one to look for flimsy reason to object. Reorganising states on linguistic basis has many advantages and has given space to all citizens to nurture their talents. These ugly faces should be condemned at the highest possible manner and make them understand that these are the very people who fights for constitutional rights of citizens and how they themselves behave in such absurdity. We also claim to be "Unity in diversity" and to ensure that such claim is not false we should put such miscreants to shame.

from:  K Raghu
Posted on: Sep 12, 2013 at 13:05 IST

When will parochialism,regional chauvinism end? Can I see real UNITY
within my life time? I doubt. We are INDIANS, INDIANS now and forever.
Please put an end to regional politics. In the long run will our country
be reduced to independent unviable regions? Is catastrophe ahead of us?
God save our country.

from:  P.S.Arunachalam
Posted on: Sep 12, 2013 at 12:21 IST

Just one more example of parochialism which is of one piece with all the
earlier ones.Laughable that one has to prove one's Tamilness by a
yardstick which even the parochial do not know.

from:  santhosh
Posted on: Sep 12, 2013 at 12:15 IST

SIR,

Divisions of states, division by languages, discriminatory treatments between castes are all the prime challenges before us. At this stage Justice K.Chandru has rightly narrated his views that discrimination by nativity of State should not enter into judiciary (A judgment in poor taste..). Educational qualification, experience and merit alone to be considered for selection of judges, thro' only the Constitutional aim will be achieved.
Further I am not against the usage of Tamil (regional language) in High Court of Chennai and its bench at Madurai. But the agony is, this demand get strengthened by majority of recent advocates, who could not able to present their submission with commanding English, in view of the poor time spent by them for gaining knowledge & updating themselves with day to day judgments. This is also the reason behind the opposition of other State nominee. This discrimination should definitely be dropped.

--

from:  S.Sampath
Posted on: Sep 12, 2013 at 12:00 IST

To Ilango Bharathi: As Justice K. Chandru rightly says "Both the nominated Advocates have graduated and practised in Madras for years now" language seems no bar.

No point stopping them. This truly is a vivid opinion. Thank you Sir Chandru.

from:  Vandana
Posted on: Sep 12, 2013 at 11:29 IST

It is high time that the selection of judges kith and kin should be
stopped. In States like Kerala where a particular law firm is the
recruitment agency for judgeship. It should be stopped. Eligible
candidates are not selected whereas legally illiterate judges, who do
not know the ABCD of the law is selected.

from:  BHARAT
Posted on: Sep 12, 2013 at 11:24 IST

Why we're becoming judgemental to decide who should work, eat, stay, speak in "our state"? Its rhetoric approach to disqualify on any basis beside looking his/her academic and behavioral work qualification and experience respectively. In judicial & administration services to be a linguistic or a native; for the appointee's not necessary. They're skilled, trained.To understand the atmosphere his own department and localities can help. Infact we should.

from:  manish sankhlecha
Posted on: Sep 12, 2013 at 11:14 IST

They can't accept 2 eminent persons who have been practicing law in Madras HC for so many years(right from the very beginning) and they complain that north indians don't accept them when they go to the north.
Then they say all are Indians, now they say they are tamilians and constitution is old. Feeling Pity. Great article.

from:  Gopikrishann
Posted on: Sep 12, 2013 at 11:11 IST

Son of soil controversy is best avoidable. I am first generation
Tamilian whose father shifted to Delhi for livelihood and I have been
entirely brought up in Delhi and have not studied Tamil. But thanks to
Central Government rules and fair recruitment procedure I could get
Central Government employment and economically and socially progress.

from:  s narayanan
Posted on: Sep 12, 2013 at 11:05 IST

At present Chennai Highcourt lost its dignity and impartiality.It seems, every judge have personal obligation with ruling party-AIADMK. SC blames CBI as cagged parrot,but Chennai High court is hunting dog of the AIADMK to terrorize opposition by using courts.

from:  D.Anandaraj
Posted on: Sep 12, 2013 at 11:05 IST

Indulgence on the basis of language, region and religion beyond certain point becomes too chauvinistic and radical corroding the diverse aspects of our country. When appointments are made some heart burns are unavoidable. Creating ruckus almost on the sons of soil tinge will not augur well when people from Tamilnadu are well received and respected in other parts of the country. When there is merit in the appointments accepting it would do good for the lawyer fraternity

from:  A.Thirugnanasambantham
Posted on: Sep 12, 2013 at 10:57 IST

Sir
Ur article on d appointment of The honourable Madras High court judge is really an eye opener 4 those who think in a parochial way.It is not sagacious to unilaterally oppose the appointments in the honourable judiciary n government posts based on the domicile. The time has come and everyone of us should strive for unity in diversity both in word and spirit.May be perhaps its not a laudable decision to support tribalism backed by the staunch caste based on linguistics especially in the globalised era.

from:  Kranth
Posted on: Sep 12, 2013 at 10:09 IST

Without going into the merits and demerits of the arguments put forward by Mr. Chandru(whom I admire for his honesty and opinions to do away with black coats,addressing judges as'my lord',words like 'begging',etc),I feel that it may not be a correct approach to appoint top most officers like IAS, IPS officers,High court judges, etc (who have to intereact with people daily on emotional and cultural issues) to region with completely different language and culture; for example what is the point in appointing a Tamil or Malayalee officer to Manipur or Bihar? It takes at least 6 months - 2 years for them to understand local language and culture. Let's not fall back on constitution for everything. Constitution was written 63 years back and has already been amended so many times which proves that our constitution is not the most perfect document. There is lot of scope of further amendments in our constitution.

from:  Ilango Bharathi
Posted on: Sep 12, 2013 at 09:50 IST

Those rasing such objection should be barred from any public activity.I appreciate Honourable Justice Mr.chandru who is known for his upright position and the details made out by him. In Tamil Nadu everything is being politicised and such activites should be nipped in the bud. Hats off to Justice. Mr Chandru.

from:  S.Balasubramanian
Posted on: Sep 12, 2013 at 09:48 IST

Conceding to the demand of parochialists would lead to similar demands elsewhere in other states too. South Indians in other states will be the most affected.The division of states on linguistic basis and only local language to shut out outsiders is also a step in the direction of shutting outsiders.

from:  s.narayan
Posted on: Sep 12, 2013 at 08:58 IST

The first fault lies with the delay in appointment of a regular Chief Justice for Madras High Court. Justice Chandra is known for his landmark judgments. His analysis of the current issue is vivid and make constitutional scheme of things clear. The Bar should see to reason and the sons of the soil policy in such constitutional appointments will be counter-productive and against national integration.

from:  Dhanasekaran T
Posted on: Sep 12, 2013 at 08:26 IST

The division of sates based on language was indeed a big mistake. The
movements like DMK and Shivsena are it's epiphenomenon. They had caused
immense damage to the integrity of the nation and continue to do so. A
closer look reveals that these are the creation of power hungry
politicians at the cost of national unification. Thanks to these crooks,
we are now Madarsis, Bhayyss and so on... never Indians!

from:  Viswanath
Posted on: Sep 12, 2013 at 07:56 IST

Justice K. Chandru is absolutely right. Our parochialism in public life will only destroy us.

from:  S V Acharya
Posted on: Sep 12, 2013 at 02:37 IST

i question why all fuss is being created, although in this case they are Tamil but even if they were not Tamils, suppose they belong completely to any other state which law denies them right of being elevated to higher judiciary.... this all fuss is created by only those people who do not love India and do not have spirit of being Indian..........

from:  Saurabh Singh
Posted on: Sep 12, 2013 at 02:00 IST
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