In a sign of growing tension, the Tamil Nadu government has not given enough funds for the judiciary, forcing the Madras High Court to pass an anguished order in this regard
By R Ramasubramanian in Chennai
In an unprecedented move, a full bench of the Madras High Court has warned the Jayalalithaa government that it would be constrained to ask the central government to issue “administrative directions” to the state government if necessary funds are not allotted for the functioning of the judiciary in the state. The fund crunch has led to the cancellation of a training program for judicial officers, scheduled for the second week of October.
The issue came up on September 14 before a three-judge bench of Chief Justice Sanjay Kishan Kaul and Justices TS Sivagnanam and R Mahadevan. The issue cropped up when the bench was hearing three PILs by different persons—one of the PILs was filed 14 years ago—praying for administrative and financial autonomy for the higher judiciary in the state. The PILs wanted the judiciary not to rely on the state government for financial sanctions and also demanded that the High Court be insulated from such dependence on the state government so that it could maintain its autonomous status.
“It is with deep regret we note that a judicial training program scheduled for second half of October 2016 has been cancelled on account of lack of funds with the judicial academy. As on date, about 176 financial proposals are pending, with the government,” a visibly upset full bench noted in its order. The bench also said that “in the over 14 years of pendency of this petition, the problem of finances for the judicial infrastructure and running the courts has still not been solved”.
ARTICLE 256
Then the bench in a surprise move summoned the senior-most central government law officer for Madras High Court—Additional Solicitor General of India (ASG) G Rajagopalan—to its court hall and asked him to assist the Court in finding a solution to this vexed problem. The bench asked the ASG how the Madras High Court could function if fund flow from Tamil Nadu government had dried up. It was at this juncture that Rajagopalan said that if the situation so warranted, the High Court could invoke Article 256 of the Constitution. (Article 256 says the executive power of every state shall be so exercised as to ensure compliance with the laws made by parliament and any existing laws which apply in that state. The executive power of the Union government shall extend to the giving of such directions to a state government as may appear to the government of India to be necessary for that purpose).
The bench in its order noted: “It is in the aforesaid circumstances that we called upon the ASG of India to assist us as to how the functioning of the court would take place if fund flow does not arise from the state government. He has drawn our attention to Article 256 of the Constitution to submit that if the situation so arises administrative directions can be issued by the central government.”
<q]This is a clear indication of the financial emergency prevailing in the state’s judiciary. Chocking the fund flow is nothing but strangulating the judiciary.
—P Wilson, a senior lawyer and former Assistant Solicitor General of India
Referring to the state government’s response to the whole issue, the bench observed: “Government pleader submits on behalf of the state government that the proposals are being processed on an urgent basis. We can only hope that a situation does not come to pass where recourse to provisions of the Constitution becomes necessary on account of not making available the funds for the functioning of the judiciary.”
FINANCIAL EMERGENCY
Observers feel that this development clearly proves the dire straits that the finances of the state judiciary are in and also betrays the insensitive attitude of the state government to the whole issue. “This is a clear indication of the financial emergency prevailing in the state’s judiciary. That’s why the full bench had warned that it may use the provisions of the Article 256 of the Constitution. The fact that 176 proposals were pending with the state government for sanction is proof that the situation could be best described as such one of ‘financial emergency’,” said P Wilson, a senior lawyer and former Assistant Solicitor General of India to India Legal. “Chocking the fund flow is nothing but strangulating the judiciary.”
The three-judge bench of Chief Justice Sanjay Kishan Kaul and Justices TS Sivagnanam and R Mahadevan was upset that 176 financial proposals are pending with the government.
Another senior lawyer said that the problem with the AIADMK government was that there was no fixed allocation of funds for the judiciary to meet its expenses. “In the previous DMK regime, a fixed amount was allotted as a budgetary provision to meet the needs of the judiciary in the state and this amount was utilized in a fragmented manner over the years. But sadly, there is no fixed budgetary provision of this sort in the Jayalalithaa government and this is precisely one of the reasons creating havoc in the functioning of the judiciary.”
The lack of interest on the part of the Jayalalithaa government in ensuring free flow of funds for the judiciary was enunciated in the High Court order: “ASG further states that there should be a better coordination between the law officers of the central and state government for finding solutions to this problem specifically in the context of the central government allocation having lapsed for two financial years 2014-2015 and 2015-2016 on account of the failure of the state government to utilize the funds.”
To mitigate this problem, a petitioner in one of the three PILs, advocate Elephant G Rajendran had this solution to offer: “An independent judiciary is a constitutional mandate. The judiciary should not be made to depend on the will and pleasure of the government. For this, the concerned authorities should provide sufficient consolidated funds every year.” The bench posted the case for further hearing on November 10, 2016.
UNEASY CALM
Ever since Justice Kaul took over the reins of the Madras High Court, an uneasy calm has prevailed between the judiciary and the Jayalalithaa government. The fact that there are over 1,000 contempt petitions pending against the state government speaks volumes about this relationship. Repeated adjournments sought for filing counter in issues related with the state government had angered Justice Kaul. At one point of time, he even started imposing a fine of Rs 25,000 for every second adjournment sought by the government. Since then, the state government promptly files counters in cases coming up before a bench of the Chief Justice, but the situation is continuing as usual in cases pending before other judges.
The PILs wanted the judiciary not to rely on the state government for financial sanctions and demanded that the Court be insulated from such dependence.
It may be recalled that this is the second time in the past year that Justice Kaul has sent an SOS to the center. “Last year, a group of lawyers held a day-long protest in his court hall demanding that Tamil be made as the official language of the court. A few days after that, more than two dozen lawyers laid a siege at his residence. Such activities forced a full court meeting to order Central Industrial Security Force (CISF) cover for Madras High Court premises. After the CISF took over, the functioning of the Court is pleasant and smooth,” said A Kumaraguru, a central government standing counsel.
UNRULY BEHAVIOUR
Some lawyers say there is more than meets the eye in the High Court. “Some unusual things happened ever since Justice Kaul took over. The first day when he sat on his chair, a group of advocates barged in and shouted, ‘Justice Kaul go back to Kashmir’. This was followed by day-long protests and his residence was sieged. It was night time and the chief justice was not in his house. A few lawyers urinated on the compound wall but the police turned a Nelson’s Eye to this hooliganism. Then came the lawyers’ strike which went on for over three months as they demanded that rules brought in the Advocates’ Act to tame the erring lawyers be withdrawn. The way the lawyers’ struggle was sustained has given the impression that some powerful influences from outside are backing them to the hilt. Finally, the High Court announced that new rules to punish erring lawyers will not be implemented. So impartial observers with minimum knowledge about the functioning of the judiciary and the executive can draw their own conclusions,” said a senior lawyer practicing at the Madurai bench of the High Court.
Justice Kaul, one of the finest judges in Madras High Court, has given some path-breaking judgments during his tenure. His judgment on Tamil writer Perumal Murugan’s case was praised both at national and international forums. This judgment virtually resurrected the dead author.
Justice Kaul is expecting an elevation to the Supreme Court. This will be a loss for Madras High Court.
Lead picture: Madras High Court