Every once in a while and on a cyclical basis, the Punjab and Haryana High Court witnesses a curious phenomenon, a sort of a separatist movement that seeks the division of this prestigious High Court into two separate High Courts by creating a new High Court for the State of Haryana.
A possible separation of the Punjab and Haryana High Court into two independent High Courts will have enormous political and legal implications. To try and make sense of the issue, one has to delve into the fascinating history of the Punjab and Haryana High Court. Originally having its seat at Lahore, the Lahore High Court had jurisdiction over the entire erstwhile province of Punjab as well as Delhi. Post Independence, the East Punjab High Court of Judicature was established at Shimla on 15 August 1947 as a successor of the Lahore High Court. Haryana at this point of time was not in existence, being only a province of Punjab and the East Punjab High Court (renamed as the Punjab High Court post the Constitution) had jurisdiction over Punjab, Delhi and some parts of present Himachal Pradesh. India at that point of time was still a very divided land and The Patiala and East Punjab States Union (PEPSU)(comprising then of a number of princely states) had a separate High Court known as the PEPSU High Court, with its seat at Patiala. PEPSU only merged with Punjab under the States Reorganization Act of 1956 and this also the merger of the Punjab and the PEPSU High Court.
The new Indian-Punjab needed a new capital post independence, and Chandigarh was Nehru’s dream project- a city meant to be a model of urban planning and reflect a new nation’s modern and progressive outlook. Chandigarh came into being in 1953 and the Punjab High Court shifted from Shimla to Chandigarh in January, 1995. This was a strong High Court, a worthy successor of the Lahore High Court, with the whole Punjab as well as Delhi falling within its jurisdiction(there existed a Punjab High Court Circuit Bench in Delhi since 1952). Delhi however had become too important and did not want to be subject to the jurisdiction of Punjab, and got its own separate High Court by virtue of the Delhi High Court Act of 1966.(the Delhi High Court had jurisdiction over the Union Territory of Himachal Pradesh as well, till it became an independent State in 1971 and established its own High Court at Shimla)
By 1966, the demand for a separate State for the Hindi-speaking population of Punjab became a reality and Haryana was born under the Punjab State Reorganization Act of 1966, and Chandigarh being on the border of Punjab and Haryana was adopted as its Capital city. Even at this time a demand for separate High Court for Punjab and Haryana arose, but no one could figure under whose jurisdiction and control Chandigarh would fall. Both the States were told by the Centre that if they did not agree for a unified High Court, Chandigarh would fall within the jurisdiction of the Delhi High Court. This possible divesting of power wasn’t acceptable to the Politicans or to the Lawyer-fraternity, their combined mighty lobby led to a settlement, and Chapter IV of The Act of 1966 established the common High Court for the States of Punjab, Haryana and the Union Territory of Chandigarh, as it exists in its current form.
This common High Court has worked well ever since, creating a strong Bench and a Bar for the two States, based in Corbusier’s best and most magnificent building. Yet the demands for separate High Court persist and raise their head every once in a while. One reason for this fact is the phenomenal rise of Haryana as a prominent and rich State of the Country in the last two decades. Traditionally, Punjab has been the stronger, more prosperous and the more dominant of the two States. However the astronomical boom that hit Gurgaon and then Faridabad in the last two decades has meant that a lot of companies have set base in Haryana and it now has a major chunk of the high profile and high stake litigation of the two States, and a much brighter future. This is a cash cow that many are waiting to exploit.
Another reason may relate to the Judiciary. To the best of my knowledge, the State of Haryana has never had a judge from its cadre who has made it to the Supreme Court, and has not produced many Chief Justices to preside over other High Courts as well. This fact rankles many in Haryana, and is considered to be an unfair discrimination. The creation of a Separate High Court will mean a separate route to further elevation, a fact that is bound to benefit some Judges over the others
The stand of High Court lawyers on this issue seems ambiguous to me. Big and established lawyers in the Court get work from both States, but there is a large chunk of lawyers who get work mostly from specific districts of their State alone. Therefore, there is a section of lawyers from Haryana who would definitely benefit by the creation of a separate High Court, as the possibility of concentration of work in them would increase. However, most of the Haryana lawyers practicing in the High Court are settled in Chandigarh, and shifting the Haryana High Court outside of Chandigarh would uproot them, a fact that they will not accede to lightly. Creation of two separate High Courts in the same building would not serve the purpose either, because clients will still be able to engage lawyers of their choice from either State and the benefit of separation sought would be nullified. Separation would therefore work only if a separate High Court was created in Chandigarh, but in a different building, enough distance away from the existing one.
Politically also, Haryana has no choice but to insist on the creation of a separate High Court based in Chandigarh only. Haryana cannot afford to create one outside Chandigarh, as it would considerably weaken the claim it stakes over Chandigarh eventually being its exclusive capital city. This is a claim Punjab rubbishes, Punjab wields more control over Chandigarh than Haryana does, the Governor of Punjab has always been the Administrator of Chandigarh, and this seat does not circulate to Haryana. Punjab therefore says that if Haryana wants a separate High Court, they are welcome to create one outside Chandigarh, and leave Chandigarh to Punjab only. There are thus many complicated permutations and combinations involved in this fascinating issue, bound to have implications across the board.
Personally I am against the idea of separate High Courts. Justice is supposed to be blind, and dispensation of justice must be blind to State Boundaries as well. While there should be no discrimination in appointing judges by preferring one State over the other, the paramount consideration for elevation should be quality and merit, and not cadre. The current demography of the High Court shows the near equal division of Judges from both cadres. Further, the fact that a litigant has a bigger pool of lawyers to choose from greatly benefits him. A lawyer should succeed on the basis of his merit, and not because of a lack of competition. Pendency of litigation is a malaise that effects Courts across the country, and the creation of a new High Court with all its administrative difficulties and internal politics will delay rather than further the cause of speedy justice. Most of all, this separation must not be a political issue, the High Court must not be a pawn pushed around for political mileage and staking claim over Chandigarh. The model of a combined High Court for Punjab, Haryana and Chandigarh has worked out successfully, it has inherited the legacy of great courts and it can live up to it by standing together, and not divided.
Animesh Sharma
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