Monday, 30th October 2017

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Chance missed to call lawyers' bluff

Chief Justice Manjula Chellur and several other judges of Calcutta High Court on Friday said "not today", which means cases will not be heard that day but will be listed for the next working day.

By R. Balaji and Tapas Ghosh
  • Published 8.03.15

March 7: Chief Justice Manjula Chellur and several other judges of Calcutta High Court on Friday said "not today", which means cases will not be heard that day but will be listed for the next working day.

The reason: over 6,000 lawyers had gifted themselves an additional holiday to fill the missing piece in a long weekend break.

Justice Chellur appears to have lost an opportunity to enforce powers endorsed by the Supreme Court and call the bluff of the lawyers by taking up cases when they abstain wilfully.

The Supreme Court had ruled in 2002: "It is held that courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all courts to go on with matters on their boards even in the absence of lawyers. In other words, courts must not be privy to strikes or calls for boycotts." (See Q and A on Page 4)

Legally speaking, the pronouncement of "not today" is not an adjournment but the net result is the same: no case could be heard yesterday in Calcutta High Court because the lawyers defied the court calendar and opted for wilful and en masse abstention. In fact, strictly going by the apex court order, questions can be raised whether the lawyers committed contempt of court.

There is no codified statute or constitutional provision in India or in any part of the world to say that judges must hear advocates mandatorily before passing any order, Justice R.M. Lodha, who recently retired as the Chief Justice of India, told The Telegraph.

Several former judges said the Calcutta High Court chief justice and the other judges could have gone ahead with the proceedings on Friday by going through the case files. If necessary, they could have appointed amicus curiae (those who assist the court) for different cases from among the 40-odd advocates who were present yesterday.

The former judges also felt that the chief justice should have imposed fines on the advocates who skipped the court sessions.

In the US, judges often decide cases on the merit of documents and, if advocates are not present, they may hear the litigant directly or pass orders after going through the files.

Justice Chellur did not comment on the matter today but had said yesterday: "Lawyers should not make their clients unhappy because litigants are their God and they provide them with their livelihood.... It is the duty of the Bar (lawyers collectively) to assist the bench in running courts smoothly."

Today, Justice Lodha and Justice R.S. Sodhi, a former judge of Delhi High Court, asserted that they had disposed of cases when advocates were not present.

Justice Lodha said there was no rule or embargo on judges that they must hear the advocates before passing any order or judgment. "Absolutely, there is no embargo. Absolutely not. In Bombay High Court, in my tenure of 13 years, there was only one strike for a single day and I sat for the whole day and heard the parties, whoever was present, and passed orders.

"In many high courts, like in Rajasthan High Court a few months back, there was a strike by lawyers for many days. But many judges were hearing the cases and disposing them of after hearing the clients or going through the files. This is not unusual, it differs from court to court and judge to judge, there is no uniform practice because judges differ even in the same courts," Justice Lodha said.

Justice Sodhi agreed with Justice Lodha and cited his own example when he had appointed amicus curiae to help the court.

"I have done this earlier in my time. What I used to do if there is such a thing, I could dispose of an application without hearing the matter. Let us say litigant was going to profit by my order and the order is not going against him, then I passed an order or I appointed an amicus and went ahead with the matter. You don't need to wait for an advocate. I did it in criminal appeals.

"In several appeals, advocates did not appear. I appointed amicus curiae and went ahead, disposing of the appeals and the matters."

In certain cases, Justice Sodhi said, if the advocates expressed regret and filed an application for restoration of the petition, the judge could pass an order for doing so.

Justice Sodhi pointed out that even the chief justice of the high courts or, for that matter, the Chief Justice of India cannot tell other judges how and in what manner a case should be disposed of.

Article 225 of the Constitution confers on high courts "any power to make rules of court and to regulate the sittings of the court".

Justice Bhagwati Prasad Banerjee, a retired judge, said judges had the constitutional power to hear cases ex parte - on the application of one party alone - or to pass orders on the basis of the petitions filed by the litigants, or to dismiss a case for such absence.

"It is a fact that a litigant gets a certain sympathy from the higher courts when he challenges validity of ex parte order by the court below. But at the same time, the litigants also are losing faith in lawyers and are moving in the general direction of wanting direct orders passed in the absence of lawyers," he said.

Former Supreme Court judge Asok Kumar Ganguly said: "If this (unauthorised abstention) keeps happening regularly... the judges should exercise the power granted by the Constitution and pass orders when lawyers are absent for such reasons."