Monday, March 09, 2009

Justice Srikrishna's interim report: A few questions

Justice Srikrishna's interim report on the violent incidents at the Madras High Court complex on 19th February is now available in the public domain. Obviously, Justice Srikrishna has been concerned with the question, `who started it all?'. He correctly traced the events to the attempt to campaign, by a section of lawyers, on political issues within the High Court complex, with the connivance of the Judiciary. At the same time, he also found the excessive force used by the Police as disproportionate to the challenge posed by the unruly lawyers, as many innocent lawyers and a Judge were injured by the police lathi charge, and the police went berserk by damaging the Court's property in retaliation.

Surprisingly, Justice Srikrishna does not answer the question who ordered the police lathi charge, but says the order was interpreted by the police to unleash mayhem at will. Considering that the Supreme Court was concerned with this issue during the hearing of the case, one would assume that this was a relevant factual question to be unravelled. Justice Srikrishna writes: “It is not clear from the videos as to who was the officer that ordered the lathi charge”. Justice Srikrishna reveals in the Report that he interviewed police officers also. Do the police officers also plead helplessness in ascertaining the name of the officer who ordered the lathi charge? The report has no answers.

Secondly, as an impartial observer of the entire episode, I am concerned with the following issues, for which I have not found an answer in the Justice Srikrishna Interim Report. Hopefully, these will be addressed in his final report.

1. Justice Srikrishna's anxiety to trace the root cause of the Feb.19th incident also reveals his concern on how to avoid repetition of such incidents. Apparently, he believes that the use of excessive force by the police was a response to this root cause, and if this root cause had not been there, the temptation to use excessive force would not have been there. Many innocent lawyers, who were injured in the incidents, and who have nothing to do with the agitating lawyers, or the indifferent Madras High Court administration, (and I count myself as one among those innocent lawyers by temperament)are sure to find the Report,with utmost respect to Justice Srikrishna, disappointing in this respect.

Tracing the root cause, though useful in an academic sense, is unhelpful in fixing responsibility for what has finally happened. To be fair to Justice Srikrishna, he found the limited time inadequate to deal with the issue, and has suggested a detailed inquiry to identify the individual policemen or lawyers who indulged in hooliganism. But a recommendation for a broader reform of the police system to protect innocent lawyers or members of the public from being attacked in situations calling for a swift response from the police in case of a riot-whatever the root cause - would have been pragmatic.

2. Justice Srikrishna's aversion to lawyers' agitation over political issues not connected with Court work- again with very great respect to him - is somewhat unconvincing. He says: “The lawyers had continued their boycott of court proceedings in sympathy for the Sri Lankan Tamils, a purely political issue that had nothing to do with the work of the Courts. Yet the lawyers continued to abstain from the Courts in order to put pressure on the State and the Central Governments”. I would agree with him that the Madras High Court is not at all concerned with the Sri Lankan Tamils issue, and the lawyers' agitation over the Centre's inaction on this is not at all justified, and the call for strikes over the issue must be considered as a serious professional misconduct. Therefore, his plea for amendment of Advocates Act, and till such amendment, appropriate guidelines to be laid down by the Supreme Court to ensure certain degree of discipline by the lawyers makes sense.

But can one stretch this to say that lawyers must not be concerned with any political issue, which has nothing to do with the Courts, lawyers or the litigants to the extent that it results in boycott of courts? I only wish that such an inference from his Interim Report is just far-fetched. Because such an inference would suggest that the movement for democracy began by the lawyers in Pakistan must be considered as a serious professional misconduct; Or that the lawyers' stir in support of the freedom struggle (before independence) should be considered as unprofessional; Or that the lawyers in India justifiably did not launch a movement for democracy during the Emergency by taking to the streets.

9 comments:

family law solicitors said...

This is interesting stuff. I haven't seen anything about this in the mainstream UK media so I going to have a look at the story in more detail. Thanks for posting this and making me aware of the issue.

Anonymous said...

as a member of bar, actions of fellow members affects my reputation and image. the comments by the author reflects, the attitude of not acknowledging shortcoming of our brethern. We cannot be in "denial mode" and have to learn from lawyers of pakistan, who have not abstained from work, even in most adverse situations.

Jenna N said...

The answers to the two questions raised are self evident in the report.
First,about who gave the authority to the police to perform the acts that they did, seems to be, in my opinion, wholly irrelevant. The authority was lawfully given at the time it was given and the fact that some police officers exceeded their authority and went on a rampage is no reflection on the order given to them. It is their inidivdual responsibility. There is no question of randomly punishing any senior officer at this stage without a full fledged enquiry.
Second:Justice Srikrishna purportedly going so far as saying that lawyers must not concern themselves with any political issue etc, the report nowhere mentions anything about a view like this, nor can any such view be reasonably inferred from the report. What was stated was merely that lawyers should do all that they wanted to do outside the Court premises and adhere to the decorum a lawyer and the law insitution requires and nothing else.

Suresh said...

I agree with Jenna: Nowhere does Justice Srikrishna say or imply that lawyers cannot be concerned with political issues which have nothing to do with the working of the Courts. The only suggestion is that "the Court premises could not be utilized for airing them." (page 18) This, I think, is reasonable. Your interpretation of what Justice Srikrishna is saying is really bizarre.

Your invoking of Pakistan under military rule and comparing it with a democratic (though highly imperfect) India is even more bizarre. As for the independence struggle - nowhere do I recall an instance where a court was made the target for a political agitation. Care to cite an instance? Indeed, a significant part of the leadership - Gandhi, Nehru, Patel, Jinnah also - were themeselves lawyers and whatever their differences with the British raj and with each other, respected the Court system too much to make it a target of a political agitation.

Anonymous said...

I have been following posts on this blog for many months now, and have always been satisfied that what I read was an honest opinion on the issues covered. Regrettably though, when I read this post on your analysis of Justice Srikrishna´s interim report, for the first time I am left with a feeling that the views mentioned in it aren´t the most objective. Ironically, I believe this is also amongst the few times (perhaps the first?) that you have found the need to explictly declare yourself as an ´impartial observer´.

As regards, both the questions you have raised, I must concur with the views expressed by Suresh and Jenna above. The references to the agitation by Pakistani lawyers for democracy in Pakistan, and the Indian lawyers during the emergency, are misplaced. The analogy does not hold water principally because both these protests had a strong element of protecting the independence of the judiciary when attempts (both overt and covert) were made by the executive to erode the same. They were agitations by the Bar inter alia for the protection of the Bench. Hence they were agitations greatly concerned with securing the proper administration of justice in the very courts where the agitations occured, as distinguished from what transpired in Chennai. Hence your doubt as to whether it would always be inappropriate for lawyers to be concerned with any political issue ¨which has nothing to do with the Courts, lawyers or the litigants¨ cannot be explained by those examples of Pakistan and Emergency. Those instances clearly had ´something´ to do with the courts, thereby justifying boycott.


I would go further to state that experience has shown us the dangers of permitting the boycotting of courts on political grounds unconnected with the administration of justice in courts. When such lee way was granted, it had been grossly abused in the past as was seen in Uttar Pradesh, when lawyer´s strikes were resorted to at the slightest pretext. A book titled ¨The Other Side of Justice¨ by the former Chief Justice of the Allahabad H.C., gives a detailed view of the problems faced by a court and the litigant public while dealing with a belligerent Bar emboldened by several years of the judiciary´s prior inaction. In my opinion, the report correctly highlights the need for the judiciary to not ´soft-pedal´ the disciplining the Bar, at least in respect of the matter of strikes and the boycott of courts.

V.Venkatesan said...

I agree with most of the comments pointing out that there is a fine distinction between the Chennai incidents and the boycott of courts by agitating lawyers in Pakistan. This much was implied in my post, and I clearly said it would be a stretch to suggest what I did, and I was doubtful whether Justice Srikrishna would have really meant to oppose all kinds of boycott of courts by lawyers, whatever the political reasons.

The reference to lawyers giving up practice during the freedom struggle (and by implication, I am not sure on facts though, that they might have boycotted courts or held meetings inside the Courts - I stand corrected if the facts are to the contrary) was made in that context. And so was the reference to lawyers not launching a movement for democracy during the Emergency.

I agree that in each of these instances, the objective could have been to secure the independence of judiciary, and therefore, the boycotts might have been justified. In Chennai, that was not the case in the beginning when the lawyers went on strike in support of Sri Lankan Tamils.

But now? If the innocent lawyers who suffered injuries at the hands of the police feel dissatisfied at the Interim Report, and feel justifiably that the independence of judiciary is at stake because the police officers who ordered lathi charge have not even been identified, will that justify their boycott?

Is not the independence of judiciary at stake, if it is even remotely suggested that the innocent lawyers must suffer violence by the police, if they are unable to control the thugs among them? And whatever relief that they can get is only after the violence is unleashed, that is, after a detailed inquiry identifies the individual policemen who went berserk? Is not the police under a duty to distinguish between those indulge in violence, and those who don't?

It is not clear from the Interim Report how exactly the Acting Chief Justice must have handled the situation, even if one agrees with it that he failed to handle the situation effectively in the beginning.

Arun Thiruvengadam said...

This is unrelated to the substance of the post, and is a tangential point. But I make no apologies for the distraction because the point involved is, I think, nevertheless an important one which is often lost sight of (as reflected in Suresh's statement that I seek to respond to).

I am intrigued by the second part of Suresh’s comment, where he states:
“As for the independence struggle - nowhere do I recall an instance where a court was made the target for a political agitation. Care to cite an instance? Indeed, a significant part of the leadership - Gandhi, Nehru, Patel, Jinnah also - were themeselves lawyers and whatever their differences with the British raj and with each other, respected the Court system too much to make it a target of a political agitation.”

Suresh, I am not sure how general your claim is, but if you are seriously asserting that Gandhi and other Congress leaders “respected the Court system too much to make it a target of a political agitation,” then this is, to put it mildly, historically inacccurate.

Gandhi’s respect for British law and courts is a complicated issue, and one upon which he wrote and reflected upon considerably over his lifetime. He often invoked British notions of fairness and justice to highlight the deep hypocrisy of colonial rule both in South Africa and in India. His motivation there was to persuade those within the heart of the Empire who genuinely believed in British notions of justice, and this strategy was successful to some extent. At the same time, he and other Congress leaders did very often use the courts to make political statements. To cite but one example, here is the full text of his famous speech in the 1922 Ahmedabad trial where he was responding to charges of sedition.

In this eloquent but hard-hitting speech, Gandhi was, in his characteristically strategic way, very much using the opportunity of his trial to make the court “a target of a political agitation”. The success of this strategy is reflected in the fact that this was picked up by the international media: here for instance, is the page from the archives of the New York Times reporting the speech in the issue dated March 20, 1922. The speech is now considered a classic indictment of British colonialism in India, and colonialism more generally, and is studied and taught as one of the great political trials of history.

Sadly, law students and lawyers do not focus on this much, which is a pity because in the speech, Gandhi eloquently explains why his “respect” for British systems of law had diminished over the years as he saw and studied the oppressive nature of colonial law. Here, Gandhi’s training as a lawyer comes through, especially in the portions where he dissects the legal system employed by the colonial authorities to shore up their regime.

So, there is a long and glorious history of courts being used as sites for political struggle and agitation, even in India. But the ones that stand out in history are those where political actors and/or lawyers use the forum to make reasoned and compelling arguments. The events in Chennai did not involve this dimension: they too will probably be recorded in history. But the reasons for that are quite different.

K.V.DHANANJAY said...

I don’t see why the interim report should be faulted for not presenting enough information. This was not an investigative report and never meant to be one. This was not even a fact finding report because a fact finding report should necessarily state facts on both sides and give a reasoned conclusion on which side, in the opinion of the fact finder, truthful assertions lie. It was meant to be a formal introduction into factual events that were the subject of a dispute before a Court.

The problem arose with people assuming it to be something which it is not and which it was never meant to be. The interim report took facts stated to it as true and proceeded to give a finding on that basis. It would have been prudent for the report to state that it’s author has had no opportunity to verify certain claims which have been assumed to be true by him for the purpose of the report. Therefore, the interim report rests on certain assumptions which may or may not be true and if the interim report should be faulted for anything, it is merely for its failure to ‘disclose’ adequately, claims that have been assumed to be true.

If anything, I feel that the interim report would have been more acceptable to more people if only its author would have not proceeded to put too much trust in the ‘police’ version. Without such a trust, I am sure the ‘interim report’ would not have been complete in so short a time. Yes, ideally, I would have expected the ‘interim report’ to ask all stakeholders to patiently wait for some more time. That could not be. So, we have what we have.

Suresh said...

Arun,

I don't doubt that Gandhi did make strategic use of the occasion of his trials to make political statements and to make a broader point that the law itself was unjust. However, I don't recall anything along the lines where lawyers were specifically mobilized, the Courts used for political agitation and the functioning of the courts disrupted (like what happened in Chennai). If you know such instances, I'd appreciate hearing from you but preferably in the form of a separate post.