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There are arguments for and against the establishment of a High Court bench in the capital city. It is however apparent that the demand for a High Court bench at Thiruvanandapuram is based on the argument of distance. If distance is the only criteria, then the capital city itself is an irony for the entire state since it is located at the southernmost tip of the state.
This was not the only occasion when Indian lawyers have organized a protest. Many of India's freedom fighters were lawyers. The most famous, Mohandas K. Gandhi, was a barrister. The architect of the Indian Constitution Dr. B. R. Ambedkar also was a lawyer. India owes a lot to the legal community, particularly to those who led the freedom movement and later helped independent India to remain a democracy.
But times have changed, and so have the lawyers. The lawyers who fought for social causes and took pride in fighting challenges to constitutionalism and broader principles of democracy and democratic values in India are fast becoming a rare species. Resistance to amending the Indian Constitution according to the whims of the ruling government owes much to the late Nanabhoy Palkhivala, a barrister. The judgment in the Kesavananda Bharati case that introduced the "basic structure doctrine" – which disallows amendments that would change the basic structure of the Constitution -- is just one example.
While engaged before the Indian Supreme Court in the 1971 Madhav Rao Jivaji Rao Scindia versus Union of India case, otherwise known as the Privy Purse case, Palkhivala argued, "The survival of our democracy and the unity and integrity of the nation depend upon the realization that constitutional morality is no less essential than constitutional legality. Dharma (righteousness) lives in the hearts of public men; when it dies there, no Constitution, no law, no amendment, can save it."
But this sense of righteousness and public duty has died in the minds of India's lawyers. The lawyers and the judges that run a court have a role in social engineering. More than the judge, it is the lawyer who assumes much of this responsibility. It is not good enough for the people to have good judges; without good lawyers a good judge is of limited use. It is the lawyer who can persuade the judge to make a decision for or against a public cause.
It is often heard in India that the standard of the judiciary has deteriorated. If that is true, the blame has to be upon the lawyers. To have a judiciary of high standards without equally qualified and intellectually sharp lawyers is like expecting a world class wine with just a sparkling bottle. This is what has happened to the Indian justice system. The judiciary in India, which once claimed its position as one of the best in the world, today is considered of little value by the average Indian.
For the common person a court of law is not even the last option. Decades of delay, the poor quality of judgments and the sheer incapacity to afford a lawyer have delinked the common man from the courts. This has resulted in perpetuating violence in the society.
When the societal belief in democratic institutions is deteriorating, instead of finding ways to reassure the ordinary person of his fundamental rights, the lawyers in India have played a despicable role in making cheap and short-term profits from the situation. The result is that more and more lawyers are being accused of corruption in their professional life.
It is common to blame lawyers for accepting money both from their client and the opponent. Professional values and the hard line principles of integrity and commitment in the profession are at an all-time low.
Young lawyers entering the profession have a decreasing number of senior lawyers to whom they can look as role models. This has resulted in talented young professionals leaving the profession or being "polluted" by the environment. It is at times like these that lawyers take to the street demanding a High Court bench at their convenience at the place of their choice.
The protest and demand for a court was not intended to benefit litigants. In fact in India the reasons for a litigant to go to the High Court are very limited. Matters in an appeals court like the High Court are dealt with by the lawyers. So definitely the demand for the High Court bench is exclusively for the benefit of the lawyers, not the litigants.
There is nothing wrong in this. But Indian litigants are yet to see a protest organized by their lawyers calling for an end to judicial delays. Indians are yet to hear any protest from the lawyers against the proposed amendments in the criminal procedure law that would take away the little protection the litigants in a criminal trial have.
The lawyers in India are not concerned about any of this, since these amendments only affect the litigants. Establishing a new bench of the High Court would be at taxpayers' expense. If it would not benefit a large percent of taxpayers, why should it be spent for the exclusive privilege of a few lawyers?
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(Bijo Francis is a human rights lawyer currently working with the Asian Legal Resource Center in Hong Kong. He is responsible for the South Asia desk at the center. Mr. Francis has practiced law for more than a decade and holds an advanced master's degree in human rights law.)
