By Sri Gobardhan Pujari, Advocate, Rourkela
[There is no logic in not establishing a permanent Bench of Orissa High Court in Western Orissa. No judgment of any court and no member of any bar should be allowed to derail the right of the people to get justice sans hurdles. Absence of benches of the High Court is a very great hurdle for justice. Therefore, we in ORISSA MATTERS have always supported the demand for a bench of Orissa High Court in Western Orissa. These pages carry our views on various dates like Feb. 3, 2009,Sept. 29, 2010,August 31, 2011, Jan. 23, 2012
Now as a historic solidarity amongst the inhabitants of Western Orissa in demand for the High Court Bench is so well defined, we deem it proper to post an over view on the issue from the pen of eminent lawyer and activist Sri Gobardhan Pujari, which, we are sure, will be of immense utility in course of settling the issue. Editor]
There is unrest amongst lawyers of Western Orissa and they are demanding for a permanent bench of Orissa HIGH Court.
Rourkela and Bolangir Bar are demanding bench in their respective places. On the other hand the advocates of other places are demanding the bench in any place of Western Orissa. This issue can be addressed by considering the origin and development of Orissa High Court.
Cuttack, Balasore, Puri and Anugul were the four districts consisting of Orissa Division under Bengal. In 1905, Sambalpur district was transferred to Orissa Division from Central provinces. Thus these five districts constituted the Orissa Division were transferred to the province of Bihar. These districts were under Patna High Court.
On 9.02.1916, the Patna High Court, invoking the power vested under the Letters Patent, ordained that one or more Judges of the High Court would visit Orissa by way of circuit wherever the Chief Justice from time to time appoint, in order to exercise in respect of cases arising in Orissa jurisdiction and power vested in the High Court.
Thus to deliver justice at door step even during the British Raj the decision of the Patna High Court was praise worthy and the people of Orissa became jubilant.
The then Chief Justice of Patna High Court Edward Chamiers and Justice Sharfuddin constituted the Circuit Bench and had the first sitting in May, 1916.
Thus the people of Orissa, even during the British period got justice delivery system in twenties of 20th Century. But that did not fulfil the aspiration of the people.
The people were fighting for a seperate state which became a reality on 1.4.1936. Still Orissa had no separate High Court. The people of Orissa had to wait till India got independence and the Garjats popularly known as States merged with Union of India.
Establishment of Orissa High Court
In 1948 every state had a separate High Court save and except Assam and Orissa. In April, 1948 Assam High Court was inaugurated and Orissa High Court was inaugurated on the 26th July, 1948 by the Chief Justice of India Hon’ble H. J. Kania and the meeting was presided over by Hon’ble Mr. Asaf Ali, Bar-at-Law, the then Governor of Orissa. The other dignitaries attended the inaugural function included Dr. K. N. Katju, the then Governor of Bengal and former Governor of Orissa, Chief Justice of Patna High Court Hon’ble C. M. Agarwal, Sir S. M.Bose, Advocate General of Bengal and Sir Sultan Ahmed of Patna. Before the Orissa High Court came into being, All Orissa Lawyers Association had come into being on 27th March, 1948 and the said conference was inaugurated by Dr. K. N. Katju, the then Governor of Orissa. In this inaugural address his Excellency Dr. Katju had said-
“The comradeship of the Bar is one of the strongest phenomena in the world. I don’t think such fine fellowship and espirit de corps exists in any other profession. Members of the Bar spend their life seemingly in perpetual contention and rivalry, but the mutual regard and esteem and genuine affection which they entertain for each other is really one of the most beautiful things in the world. Other people find it hard to believe. Of a fellow member who by dint of merit and ability achieves success and fame, every one in profession feels proud indeed. The brotherhood of the Bar is not circumscribed by any parochial considerations or geographical limits. It transcends all barriers of race and country and language. It is a fraternity which rightfully claims to be almost all pervasive and everywhere true to its traditions it endeavours to promote the administration of justice between man and man without fear and favour, with the utmost impartiality, unaffected by any ulterior considerations.
High Court of Ex-States
Just before the independence of India the rulers of Athagarh, Athamallik, Bamra, Baramba, Bastar, Baudh, Bonai, Changbhakar, Chhuikhadan, Dasapalla, Dhenkanal, Gangpur, Hindol, Jashpur, Kalahandi, Kanker, Kawardha, Keonjhar, Khairagarh, Khandapara, Kharswan, Korea, Nandagoan, Narsinghpur, Nayagarh, Nilagiri, Pallahara, Patna, Raigarh, Rairakhol, Sakti, Sarangarh, Seraikela, Sonepur, Surguja, Talcher, Tigiria and Udaipur resolved to constitute a Common High Court and the Resident of Eastern States had issued a Kharita to Maharaja Rajendra Narayan Singh Deo Maharaja of Patna and other rulers which reads as under.
“It gives me much pleasure to inform you by means of this Kharita that, in view of the active interest displayed by you in co-operative measures for the administration of your State and the welfare of your subjects and of the fact that you have elected to join the scheme for a Common High Court for the Orissa and Chhattishgarh States as approved by His Excellency the Crown Representative, His Excellency has decided to relinquish, for so long as you continue to participate in the said scheme for a Common High Court, the requirement imposed by your Sanand that persons sentenced to death shall be given every facility for submitting a petition of mercy to the Resident. Nothing in this Kharita shall be construed as a conferring any authority in respect of a criminal case in which the person accused is a European, a European British subject, an American or a servant of the Crown.”
The principal seat of the said High Court was at Raigarh and hardly it had sittings in some places for once or twice including Bolangir. As on date, there is neither any permanent or circuit bench of any High Court in any of those states.
Circuit Bench of Orissa High Court
mooted by Orissa Lawyers
After the enactment of Advocates Act and constitution of the Bar Councils it was considered not necessary to continue with the All Orissa Lawyers’ Association. The last conference was held at Puri where late Biswanath Pasayat was elected as President and Late Gangadhar Mohapatra of Puri (popularly known as Gangu Bhaina and the Law College at Puri is named after him) as the Secretary. The said Association became defunct. However the leading lawyers of the State in the helm of affairs of the Bar Council of India and Orissa State Bar Council considered it expedient to re-activate the All Orissa Lawyers’ Association as the functioning of the Bar Council was confined to powers vested to it under the Advocates Act, 1961.
But there are areas where the lawyers must act. Accordingly All Orissa Lawyers’ Association was given a re-birth in a conference held at Berhampur on 28th and 29th December, 1980. It was one of the most representative Conference of lawyers. The moving force of the conference was late Ranjit Mohanty, Bar-at-Law, the then Chairman, Bar Council of India, the leading members of Orissa State Bar Council like Sri Arijit Passayat, Sarat Chandra Mohapatra, Lingaraj Rath, Arjunlal Agrawal, former Advocate General Ashok Dash, Gangadhar Rath and other prominent lawyers OF High Court Bar Association like Bipin Bihari Ratho, C.Barman Murthy, Srinibas Mishra, Raghunath Das etc. and President and Secretary of various Bar Association of Orissa and other leading lawyers of the State.
After due deliberation the Conference adopted unanimous resolution to have circuit Bench of Orissa High Court at Sambalpur and Berhampur which had full support of the members of Orissa State Bar Council and High Court Bar Association.
This resolution rekindled the hope of the people for justice at door step.
However, the members of Bolangir expressed resentment and did not associate with the Association.
Fissure creeps in
Although the Lawyers of the State pleaded for Circuit Bench in two places neither the Government of the day nor the High Court took any step to give effect to the wishes of the Lawyers.
The Lawyers of Sambalpur and Berhampur felt restless and resorted to agitation and strike continued for months. Even then the demands of the lawyers were ignored.
In the last week of December, 1990 the All Orissa Lawyers, Association held its annual conference at Raygada. The atmosphere was charged as lawyers of Sambalpur and Berhampur were on agitation. There was genuine feeling of the lawyers that the Judges of the High Court were primarily responsible for the inaction as holding Circuit Bench was within the prerogative of the Chief Justice and the High Court is ignoring their just demand.
Some further thought that the advocates of the High Court Bar are putting undue pressure on the Judges of the High Court.
Thus, the lawyers of the agitating Bar made undesirable remarks against the Judges and leading lawyers of the High Court Bar who were guests in the conference.
This unfortunate incident led to open opposition to the movement by the High Court Bar and even the Judges also took it personal. It was reflected in different ways. Lawyers of Jeypore were encouraged to demand for a Circuit Bench. Ultimately the whole movement was diluted when even the most insignificant Bar demanded a Circuit Bench.
The after effect of Raygada Conference is that the unity of lawyers which was achieved at Berhampur Conference was given a fatal blow, the relation between Bar and Bench was marred and All Orissa Lawyers’ Conference lost its importance as the symbol of the voice of the lawyers community of the state.
Genuine aspiration of the people will never die
The genuine aspiration of the people cannot be killed or suppressed for all times to come. In any movement there are ups and downs. Only night can give birth to a day. When the aspiration of the people was gaining momentum the members of Bargarh Bar called a meeting of the Bar Associations of Western Orissa on 30.04.2006. For the first time the members of Sambalpur and Bolangir Bar shared one platform to address the issue and took the prudent and positive steps in accepting the unanimous resolution adopted in the convention which reads as under:
This convention/assembly of lawyers is of unanimous view that the people of Western Orissa are entitled to have a permanent Bench of Orissa High Court in Western Orissa for speedy disposal of litigations. This convention notes with great concern that the people in general and Advocates in particulars have been agitating for the same but a single voice has not emerged which is suiting the purpose of persons who are against the establishment of a permanent Bench in Western Orissa in such situation this Assembly of Advocates, it is resolved that no individual Bar Association shall demand for the establishment of a bench in any particular place. All Bar Associations shall work unitedly for a bench in any place in Western Orissa. Hence it is resolved as here under :-
“This convention/assembly of Advocates of Western Orissa held on 30.04.2006 at Bargarh calls upon the Govt. of Orissa/ High Court of Orissa/ Govt of India/Supreme Court of India to establish a bench of Hon’ble High Court of Orissa in any suitable place of Western Orissa before the commencement of monsoon session of Orissa Assembly.
This Assembly further requests the Advocates in general and Bar Associations of Western Orissa in particular not to make any demand for a permanent bench of High Court in any particular place or to take up any agitation programmes in this regard.
This Assembly further resolves to achieve the creation of a bench of Orissa High Court in any place within Western Orissa and a steering committee is constituted who shall correspond with different authorities and to decide the agitation programmes to achieve the aforesaid objective.
This Assembly further resolves that the President of all the Bar Associations of Western Orissa shall be the members of the steering committee.
This Assembly further resolves that the President of District Bar Association, Bargarh shall be the Convener of the steering committee.
This Assembly further resolves to send copy of this resolution to the High Court of Orissa/Govt. of Orissa/Supreme Court of India/Govt of India/ all the Bar Associations of Western Orissa/different Print & Electronics Media.“
Emergence of a movement
The resolution threw a new light and hope and had a positive impact in every spectrum of the society. All bars of Western Orissa identified with the steering Committee and espoused the cause of a Bench in any place of Western Orissa. The strength of unity was visible as common man started taking interest on this movement.
The Committee made attempt to make the movement broad based and called the peoples’ representatives in the Assembly and Parliament and all political parties to associate with the movement.
In fact the M.L.As including the cabinet Ministers and M.Ps and all political parties supported the cause, some of them attended the meetings called by steering committee.
The effect of this development was felt when the delegation of the steering Committee met the Chief Minister of Orissa.
The Chief Minister himself witnessed the M.L.As from all political parties accompanying the delegates and remarked, “You have own half of the battle”.
The Second gain was that Bolangir Bar de facto accepted the All Orissa Lawyers’ Association in its representative capacity. This became evident in the meeting of the steering Committee held at Bolangir Bar.
The President of All Orissa Lawyers’ Association was a member of the steering Committee and as such he was present in the meeting. Sri Panda, the President was not occupying a seat in the dais with a view not to antagonize the members of Bolangir Bar. But when Mr. Narasingha Mishra, the former Law Minister and leading member of Bolangir Bar noticed this, he requested the President of Bolangir Bar to escort Sri Panda to the dais. This incident is significant in many ways.
By then the All Orissa Lawyers’ Association had already accepted the establishment of the Bench in any place of Western Odisha. Thus the earlier resolution of the Association for the Bench at Sambalpur was modified to that extent. It was clear that all bars will fight united for the establishment of a Bench in any place and at appropriate time any bar can place all records or submit as regards suitability of any place is concern.
A set back
The achievement of Bargarh Convention was short lived. It could not keep all political parties together for a long time. The political parties got separated and started blaming each other for not achieving the goals. A peculiar development took place in the mean time. It was resolved in the steering Committee to oppose the seat of power till the seat of the Bench is decided.
This decision was unanimous although some members of the steering Committee were also from the ruling party.
Just after eight days the Chief Minister was to address a party meeting at Bargarh and the Party started mobilizing to bring people by bus and truck to the meeting place. At one end in furtherance to the resolution the members of the steering committee gave bandh call which led to a direct confrontation with the ruling party.
Some leading members of the steering Committee displayed loyalty to the Party, and acted contrary to the resolution of the Bar. They even did not hesitate to critise the steering committee.
This is the first major set back to the movement and it took time to reconcile to the situation. Secondly fundamentalism within the Bar also affected adversely. Some members of some Bar advocated to fight independently for the establishment of the Bench in a particular place and the local leadership failed to check them. Thus the division was visible to naked eye.
There was change in the attitude of the High Court. It is understood that request of the Chief Minister to the Chief Justice of the High Court did not receive favour and the same was turned down.
The state Govt. constituted a Commission headed by Justice C. R. Pal to dwell into the matter; but Bar has boycotted the Commission.
The Commission has failed to submit the report although more than two years have passed.
As on date, the Bar Associations of Western Odisha are not united. The Division is manifested in different ways. But the movement is continuing with symbolic strike for last three working days of each month.
This agitation can not lead to the establishment of a Bench and each Bar is aware of this.
However the positive aspect is that it is keeping the issue alive. A time has come to rethink the issue and remedial measures are to be undertaken to achieve the goal.
It will be appropriate for me to draw attention to another development. The Bargarh Convention had adopted that the President of District Bar Association, Bargarh shall be the Convenor. However subsequently, the convenorship was conferred to Sri S. B. Mishra of Bargarh Bar to be the convenor. And, as on date Sri Ashok Dash of Sundargarh is the Convener.
Disclosure by Union Law Minister
The letter of the Union Law Minister dt. 31.01.2007 addressed to Sri Prasanna Kumar Acharya the then Member of Parliament discloses that the Government of Orissa intimated in 1991 that they had decided in principle to set up Circuit Benches of the Odisha High Court at Berhampur and Sambalpur or Bolangir but the High Court had not considered it expedient to do so.
The Government of India had advised the Government of Orissa to reemphasise upon the High Court the desirability of establishing its Circuit Bench and to persuade it to do so under Clause 10 of the Orissa High Court Rules, 1948.
The Chief Minister of Orissa addressed a letter dt. 08.11.2007 to the Chief Justice of Orissa High Court which is quoted here under:
“The demand for establishment of permanent! circuit Bench in Western Orissa and Southern Orissa regions have been cropping up for quite sometime and there were also several requests to the Hon’ble High Court on this issue. So far the High Court has taken a view that establishment of either a permanent or a circuit Bench in any of the regions is not expedient.
For the last two years, the demand for establishment of Permanent Bench in Western Orissa and Southern Orissa has gathered momentum and several agitation measures have been taken by the people in Western Orissa and Southern Orissa through Public Meetings, boycotting the Courts etc.
Government have constituted the Western Orissa Development Council for the Western Orissa considering the special problems of large number of people of the area who are mostly tribals.
Similarly Southern Orissa has a large number of tribals and poor people living in remote areas which are far off from the State Capital and Cuttack, the seat of the High Court of Orissa. The main justification advanced by these people is that since the people of these regions are generally poor and the High Court is at a long distance from these areas, they cannot actually avail the opportunity of getting justice.
They are also referring to the recommendations of the Jaswant Singh Commission, which lays emphasis on the characteristic of a region as a criterion for establishment of a permanent Bench of the State High Court.
I would, therefore, request you to consider the above proposal for making available speedy justice to the poor people residing in far flung areas of these two regions at Sambalpur and Berhampur.”
The aforesaid recommendations of the Chief Minister could not persuade the Orissa High Court and did not get approval. Thereafter the Govt. of Orissa has appointed the C. R. Pal Commission. Last year the Union Law Minister Sri V. Moilley had shown positive response for establishment of the Bench in western region of Orissa.
The fact remains that the Orissa High Court and others connected thereto are yet to over come from the syndrome of Raygada Conference and as it seems the Orissa High Court is not thinking to review its earlier decision.
The High Court has exclusive say as regards Circuit Bench of the High Court is concerned. But the High Court can not put huddle for the establishment of a permanent Bench. This can be done by passing appropriate legislation as has been done in case of Ranchi Bench and Madurai Bench.
It will not be out of place to mention here that very frequently Jaswant Singh Commission is referred to. Jaswant Singh Committee is outdated and requires a revisit. Further the said Committee has recommended as under:
“In conclusion, we would like to emphasise that in weighing the claim of a region for a Bench of a High Court it is not necessary that it should satisfy all the norms detailed above. It should be enough if the totality of the conditions and circumstances obtaining in a particular region warrant, the establishment of a Bench.”
Therefore in the given situation the agitation should be aimed at adopting a resolution in the Assembly and forwarding the same to the Central Govt. for passing of appropriate resolution. Even attempt may be made to lay a private member bill in this regard to overcome obstacle.
(Sri Pujari is available at: email@example.com )