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A judgment in poor taste

K. Chandru
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Protests against the nomination of judges from other States to the Madras High Court are misinformed andrun 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.

Flawed 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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