Here is a guest post by Gopal Sankaranarayanan, an advocate practising in the Supreme Court of India, which responds to Venkatesan's post on the Srikrishna report. I'm also posting below Venkatesan's response to Gopal's post.
It is with some interest that I read Mr.Venkatesan’s post concerning the much debated interim Report submitted by Justice Srikrishna regarding the recent events at the Madras High Court. While I will not quibble with the fact that the author has been a little casual in his summing up of the Report (“with the connivance of the judiciary”, “if this root cause had not been there, the temptation to use excessive force would not have been there”), I do take issue with what I feel has been a selective and limited reading of it. I wish to address these concerns in the order that Mr.Venkatesan has done:
1. Justice Srikrishna's Omission: Mr.Venkatesan conveys the impression that ‘Who started it all?’ was the primary question that agitated the Supreme Court. In fact, having been present in the courtroom on the days when the matter was heard, (19th, 23rd, 25th and 26th of February), I found that the Court was primarily concerned with pacifying the strong contingent of Madras lawyers and cajoling them to call off the strike, at which point they sought the suspension of the police officers in order for them to return to work. It is this demand, in fact, that is reflected in the following words of the Bench in its Order of 26th February 2009:
“The Committee initially shall consider any immediate action against the police officers who allegedly allowed armed policemen to enter the premises of the High Court without permission of the acting Chief Justice.”
Mr.Venkatesan somehow concludes that the vital question of identity remained unanswered in the interim report and says - “Justice Srikrishna writes: ‘It is not clear from the videos as to who was the officer that ordered the lathi charge’. It does great injustice to suggest that the good Justice had only one pithy line to offer to those baying for names. A glance at Page 11 of the Report will show that the above quote is in fact only a section of a sentence regarding the Commission’s difficulty in determining identity. The true extract is:
Although, some representations and affidavits given by the lawyers name Director General of Police Mr. Jain, Commissioner of Police Mr. Radhakrishnan, Joint Commissioner of Police ,Mr. Ramasubranaian and Deputy Commissioner of Police, Mr. Saraangan as having ordered the lathi charge, it is not clear from the videos as to who was the officer that ordered the lathi charge. The video taken by the official videographer of the police has a timer ad indicates the time from second to second but the videos taken by the TV staff produced by lawyers do not show the timings. The official video does not show the presence of the Commissioner of Police till about 1714 hours. From the information given by the Home Secretary and the Police Commissioner, it would appear that upto that time only the Additional Commissioner of Police K Vishwanathan was in charge and the Police Commissioner arrived on the scene at about 1714 hours upon receiving the information that the situation was going out of hand. At about 1715 hours the Commissioner of Police is seen restraining the men and asking them to retreat.
The above paragraph makes it abundantly clear that the ACP was “in charge” when the lathi charge was ordered, and that the Commissioner had not arrived at the scene. Yet, Justice Srikrishna desists from leaping to any conclusions as to who in fact had ordered the police action. That would require further investigation (more than 2 days’ interviews could afford), and would remain a wholly academic question if the Committee did not consider it necessary to institute any immediate action against the police officers involved, which in fact was the true mandate of the Order of the Supreme Court.
And of course, to expect the police officers who were interviewed to spill the beans on their superiors is naiveté, which a brief experience of India’s feudal babudom can soon dispel.
2. Justice Srikrishna’s anxiety – Mr.Venkatesan seems to be somewhat confused about the mandate of the interim Report. The only task before the Committee was to ascertain whether any “immediate action” would be recommended against the Police Officers at this stage. It did not in any manner contemplate action against the armed Policemen who had actually indulged in the mayhem that was unleashed that unhappy day. It is unclear why the Report would cause such disappointment and hand-wringing regarding issues that were never in its ken. At no stage has Justice Srikrishna exonerated the policemen who perpetrated the atrocities – he has in fact roundly condemned them. I find it difficult in this background to accept the facetious conclusion drawn by Mr.Venkatesan about Justice Srikrishna – “he believes that the use of excessive force by the police was a response to this root cause”.
3. Justice Srikrishna’s aversion – A glance at the Comments section of the Post in dispute shows me that Mr.Venkatesan has issued a qualified detraction of his remarks concerning lawyers’ agitation over political issues. While I agree with the views of Suresh, Jenna and Anonymous who have granted me respite from having to frame a response, it might be apposite to gently remind ourselves of the words of the Constitution Bench in two separate passages of Ex-Capt. Harish Uppal v. Union of India, (2003) 2 SCC 45:
A dispute between a lawyer/lawyers and police or other authorities can never be a reason for going on even a token strike. It can never justify giving a call for boycott. In such cases an adequate legal remedy is available and it must be resorted to.
It is held that only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention (sic) from work for not more than one day. It is being clarified that it will be for the Court to decide whether or not the issue involves dignity or integrity or Independence of the Bar and/or the Bench.
While I also agree that Mr.Venkatesan’s analogies ought to be rejected, it would be worth contemplating whether, even in a situation like the Emergency, (where lawyers were affected, and at the forefront of the protest) the Bar ought to be allowed to go on strike, as this would further disenfranchise an already cowering public.
4. Justice Srikrishna’s Lack of Clarity – In the Comments section, Mr.Venkatesan seeks clarity from the Report as to how the Acting Chief Justice should have handled the situation instead of the “soft policy” he had adopted. Neither was this the scope of the Report, nor should a Committee appointed in this regard voice its unsolicited suggestions. As it is, the Chief Justice of India has expressed his acceptance of this view of Justice Srikrishna.
Venkatesan's Response to Gopal's Post
1. I am surprised how I conveyed the impression that the SC was concerned with the question, who started it all. I have clearly written in my post that it was Justice Srikrishna who was concerned with this question, whereas the SC was concerned with the question of who ordered the lathi charge, among other things. I was not present in the Court, but that was the impression I gathered from the media reports. I will, of course, stand corrected if there is any discrepancy between the media reports and what actually transpired at the Court, as Mr.Gopal was present.
2. I did not suggest that Justice Srikrishna dismissed the question of who ordered the lathi charge in that one sentence. I only relied on that sentence or part of it, to convey that he could not establish it from the videos which he had seen. It is true I was naive in suggesting that the police officers could have revealed it. Because if they do not reveal it, it would most certainly confirm that they have something to hide. If I read the report correctly, Justice Srikrishna does not recommend an inquiry into this aspect, but only recommends an inquiry in identifying individual policemen who went berserk. (I am willing to be corrected, if I am wrong on this).
In situations like these, there must be clearly laid down rules or norms as to who should order lathi charge or even firing, if the situation goes out of control. Therefore, it must be easier to fix responsibility, rather than look for actual evidence, which may not be forthcoming. If on the contrary, the policemen who went on a rampage received unofficial orders for lathi charge, then it is a cause for worry, and even ominous.
Such situations can recur, and the innocent lawyers will still be apprehensive of being caught in the crossfire between the police and the unruly elements within the bar - a valid justification for the boycott, because they rightly feel that they may not have the conducive secure atmosphere to function when the police can lathi charge or even fire without orders, or with orders clouded in mystery. It only vindicates the lawyers' continued boycott of courts.
In fact, Mr.Gopal suggests that Justice Srikrishna departed from the Supreme Court's mandate, by refraining from recommending action against the police officers who were responsible for the lathi charge, whereas it should have been easier to identify such officers at least on the basis of rules, norms, and well-established precedents. If the ACP was in charge, what prevents him from accepting that he issued orders for lathi charge because the situation warranted it? If no one else other than ACP could have issued orders at that time, what prevented the Commission to quiz him on this, and report his response in the report, even if it requires further cross-checking or enquiry.
3.As for SC judgment in the Harish Uppal case, why has the High Court and the SC not intervened earlier to enforce this judgment when there were similar srikes by lawyers - or even now? Does it show that the judgment is unenforceable, or out of sync with reality - like its judgment banning bandhs and strikes by political parties?