Two Supreme Court of India Judges, Judge Rohintan Nariman and Judge Vineet Saran have by a decision dated 12 March 2019 found lawyer Mathews Nedumpara to be guilty of contempt of court. The judgment can be read at https://www.livelaw.in/pdf_upload/pdf_upload-359059.pdf
The finding of guilt for contempt of court without notice, hearing or trial might not have been the right approach in this case, even if the alleged contempt was in the face of the court. Going by reports of what transpired after the alleged statement was made, apologies/ clarifications were issued and the hearing on merits continued. Proceedings were not disrupted. There is some ambiguity about exactly what was said and what the context was. Immediate contempt action would only apply in an immediate situation where the Court cannot continue functioning without addressing the contempt. In this case, the situation was perhaps different. The alleged statement by Mathews Nedumpara which offended Judge Rohinton Nariman was made during a hearing on 5 March 2019. After Judge Nariman reprimanded the lawyer, apologies and clarifications were issued by Nedumpara and the hearing on the main matter continued and judgment was reserved. No notice for contempt was issued on 5 March and no finding of contempt of court was made by the Court in its order of 5 March. The judgment holding Nedumpara guilty of contempt of court was delivered only on 12 March. Notice could thus have been issued on the contempt aspect and indeed ought to have been issued as the principles of natural justice must be departed from only in the most exceptional of circumstances.
I read the Judgment of J. Nariman and J. Saran and found it unsatisfactory on several counts.
First on the merits of the main writ petition itself, the Court did not discuss the grounds for Nedumpara's petition. Were they different from the Indira Jaising matter (Indira Jaising v. Supreme Court of India through Secretary General and Ors., (2017) 9 SCC 766)? If they were, it was clearly not a case seeking review. Ms Jaising had more or less conceded on the constitutionality of senior designations or she never challenged this. Her arguments were instead on the procedure and criteria for senior designation. Her petition was for reform and not abolishment of senior designations. I still believe that the senior advocate designation system is bad and should be discarded. It promotes institutional capture.
On the contempt aspect, I have the following comments to make on the judgment.
There is no clear finding of contempt in the judgment. Nowhere does the judgment analyse what Nedumpara did in Court before J. Nariman and J. Saran and discuss why it amounted to contempt. We don't even know exactly what Nedumpara said.
What Nedumpara said about Mr Fali Nariman during the hearing on 5 March and in what context and for what purpose is unclear. These facts are missing in the judgment.
The discussion of Nedumpara's previous conduct without hearing him is problematic. This previous conduct was clearly not contempt in the face of the Supreme Court so notice should have been issued to him. Also many of the orders mentioned are not final orders. What finally happened in those cases? Many of these cases are still pending. Some of these are contempt cases still pending against Nedumpara before the Bombay High Court. The judgment of J. Rohinton Nariman and J. Vineet Saran has essentially prejudged all these cases and this in the absence of Nedumpara and without hearing him. This is legally impermissible, besides causing the gravest prejudice to Nedumpara whose Articles 20 and 21 rights and due process rights are involved. What about the one year limitation period for taking cognizance of contempt of court? What about the Article 20 guarantee against double jeopardy? Whether past conduct can be invoked in this manner in a criminal proceeding is also a valid legal issue. At the very minimum, the Court should have given Nedumpara an opportunity to respond on these allegations of his previous misconduct.
The decision not to issue notice to Nedumpara and not to hear him and not to transfer the contempt issue to a Bench not comprising of Justice Rohinton Nariman is also of concern. These decisions could only have been taken if an immediate order and conviction for contempt was required during the hearing on 5 March. That was not the case. In fact the very decision of the Supreme Court in Sukhdev Singh Sodhi (1954) cited in the judgment cautions the court against these very kinds of decisions and urges the Bench to act with " dispassionate dignity and decorum which befits their high office” and to ensure compliance with natural justice so that "justice must not only be done but must be seen to be done by all concerned and most particularly by an accused person who should always be given, as far as that is humanly possible, a feeling of confidence that he will receive a fair, just and impartial trial by Judges who have no personal interest or concern in his case.”
If court proceedings were video-recorded all facts in all these cases would be crystal-clear, including whether Nedumpara has indeed misbehaved in Court.
How are the statements attributed to Nedumpara in para 2 of the judgment a contempt of court. They sound like legal submissions. The Court could have dismissed these submissions as being legally unsound but how do they constitute contempt of court?
The judgment contains the following statements against Nedumpara.
This is not the first time that this particular advocate has attempted to browbeat and insult Judges of this Court. In point of fact, the style of this particular advocate is to go on arguing, quoting Latin maxims, and when he finds that the Court is not with him, starts becoming abusive. We also find that this advocate is briefed to appear in hopeless cases and attempts, by browbeating the Court, to get discretionary orders, which no Court is otherwise prepared to give. We have found that the vast majority of appearances by this advocate before us have been in cases in which debtors have persistently defaulted, as a result of which their mortgaged properties have to be handed over to secured creditors to be sold in auction. It is at this stage that Shri Nedumpara is briefed to somehow put off the auction sale.
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With due respect to the Judges who have authored this judgment, these generalized statements are not only unsubstantiated with facts but could be perceived as an example of bias against Nedumpara. Where are the actual factual examples of Nedumpara being “abusive” to Supreme Court Judges? If quoting latin maxims, being briefed in hopeless cases, and representing defaulting debtors were to be seen as “faults” in lawyers, then many lawyers including celebrity senior advocates who have represented Anil Ambani, Subrat Roy, the erstwhile Ranbaxy brothers, etc., before the Supreme Court would all fall under this taint.
There is an even more serious problem with this judgment. Mathews Nedumpara, his associates and organization have for years been raising concerns pertaining to judicial appointments and judicial corruption in public fora and in judicial proceedings in several courts across the country. They have raised the issue that too many judges being appointed in courts across the country are related to other judges, to politicians, powerful lawyers and elites, giving rise to apprehensions that the collegium system for judicial appointments is being gamed. Nedumpara has also raised the issue of relatives of judges practicing as lawyers in the same courts which in some instances has led to perceptions of corruption and undue favors. Nedumpara is not the first or only person to raise these concerns. These concerns have been raised by politicians, by sitting and retired Judges, in Parliament, in Law Commission reports, in several news reports, and in several judicial proceedings. These concerns have been expressed even in Supreme Court judgments including in a 2010 judgment by Justice Markandey Katju and Justice Gyan Sudha Mishra.
On 2 March 2019, Nedumpara filed a Writ Petition in the Delhi High Court as petitioner in person which was registered as Writ Petition Civil No. 2199/2019 in the matter of Mathews Nedumpara & Others versus Fali S Nariman & Others. This was registered by the Delhi High Court Registry on 5 March 2019. In this writ petition Nedumpara sought the following relief:
"(a) declare that the Explanation to Rule 6 of the Bar Council of India Rules, 1975, CHAPTER - II (STANDARDS OF PROFESSIONAL CONDUCT AND ETIQUETTE), which says that „Court‟ means not the entire Court, but the particular Court where the relative of a lawyer is a Presiding Judge, negates absolutely the concept of nemo debet esse judex in propria causa, and allowing the kith and kin of sitting Judges to practice in the very Court where his father or uncle is a Judge cuts the concepts of fairness, independence and impartiality in the administration of justice at their very root, namely, justice should not only be done, but should manifestly and undoubtedly be seen to be done;
(b) declare that Respondent No.1, the living legend, is disqualified from appearing in the Supreme Court where his illustrious son, Hon‟ble Mr. Justice Rohinton F. Nariman, is a sitting Judge, for, the Supreme Court means the entire Courts as an institution and the petitions which he (Respondent No.1) vets captioned as "To The Hon‟ble the Chief Justice and his Companion Justices of the Hon‟ble Supreme Court of India" come up before his illustrious son, Hon‟ble Mr. Justice Rohinton F. Nariman;
(c) issue an appropriate direction to the Collegium Members of the Supreme Court and the Government of India to take appropriate steps to secure transfer of the Judges of High Courts, where their kith and kin practice as lawyers, to some other High Court keeping in mind all concern for the inconvenience and difficulty to the Judge concerned and taking all such steps to mitigate the same;
(d) issue a writ of injunction or any other appropriate writ, order or injunction restraining and prohibiting Respondent No.1 in the Supreme Court;
(e) grant ad-interim injunction in terms of prayer (d) above; and
(f) pass such other order or orders, as this Hon‟ble Court may deem fit and proper under the facts and circumstances of the case."
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Thus on 5 March 2019, when Nedumpara appeared before J. Rohinton Nariman, he was already a petitioner in a some-what related petition filed in the Delhi High Court against Judge Nariman’s father Mr Fali Nariman. Justice Rohinton Nariman ought to have recused from hearing Nedumpara’s petition. Had a copy of the Delhi High Court petition been served on Mr Fali Nariman? Had this petition been brought to the attention of Mr Fali Nariman?
Though on 6 March 2019, the Delhi High Court dismissed Nedumpara’s petition against Fali Nariman, however the judgment is not reasoned in my opinion. The issue of relatives of judges practicing in the same court is an important systemic malaise and has been raised before in judicial proceedings and in my opinion the Delhi High Court decision in Mathews Nedumpara versus Fali S Nariman does not provide closure.
Both Mr Fali Nariman and Judge Rohinton Nariman enjoy reputations for integrity and legal competence. The unilateral contempt action against Nedumpara by Justice Rohinton Nariman does however cause some amount of discomfort in the light of all of the above. The issue of “uncle judges” is a valid concern. Perhaps Mr Fali Nariman ought to have set an example for the Bar by retiring from his Supreme Court practice after the appointment of J. Rohinton Nariman as a Supreme Court Judge. Justice Nariman also perhaps ought to have considered recusal from cases involving Nedumpara in the light of the latter’s Delhi High Court petition impleading Fali Nariman. A conviction for contempt of court by the Supreme Court of India must always be based upon the application of the highest judicial standards, the principles of natural justice, and after full due process. Nedumpara should have been issued notice and been afforded an opportunity to respond. As Jeremy Bentham would have said, a Judge trying a case is also himself on trial. Justice must not only be done but also be seen to be done. Judge Rohinton Nariman would be the best person to correct any perception that justice has not been done in this whole matter.
See below for examples where all the issues canvassed by Nedumpara have been raised.
Press Information Bureau
Government of India
Ministry of Law & Justice
22-November-2012 18:08 IST
Uncle Judges Syndrome
The Law Commission of India in their 230th Report has mentioned the matter of appointment of ‘Uncle Judges’ in the High Courts, wherein it is said that the Judges, whose kith and kin are practicing in a High Court, should not be appointed in the same High Court.
The appointment of Judges in the High Court and Supreme Court is made under the Memorandum for Appointment of Judges which has been laid down following the Supreme Court Judgments in 1993 and 1998. Under this, responsibility for initiation of proposals for appointment of Judges in the High Court and Supreme Court is with the Chief Justice of the High Courts/Supreme Court. Under Article 217 of the Constitution, a person who has been an advocate for 10 years in a High Court or in two or more such Courts in succession is qualified to be considered for appointment as the Judge of the High Court.
Thus, under the Constitutional Provision, Chief Justice can recommend judges from the Bar to be appointed as the judge of the High Court. In this situation, kith and kin of those appointed as judges and practicing in the High Court is likely. With a view to correct the situation, judicial standards are being prescribed for the judges in the Judicial Standards and Accountability Bill, 2012 which has been passed by Lok Sabha already.
This was stated by the Minister for Law and Justice Dr. Ashwani Kumar in written reply to a question in the Lok Sabha today.
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THE JUDICIARY
‘Uncles' on Bench
V. VENKATESAN
The Supreme Court's recent strictures against some judges of the Allahabad High Court revive the debate on the uncle judge syndrome.
PTI
IN Shakespeare's Hamlet, Marcellus famously remarks that “something is rotten in the state of Denmark” as he and Horatio debate whether or not to follow Prince Hamlet and his ghost-father into the dark night. The ghost is a visible symbol of Claudius' crime of slaying his brother, the King of Denmark, and marrying his wife, Queen Gertrude. Marcellus' expression has become the standard phrase to refer to corruption and lack of morals in the high echelons of power.
On November 26, the Supreme Court Bench began its severe indictment of the state of affairs in the Allahabad High Court by saying that “there is something rotten in the Allahabad High Court” and it “needs some house cleaning”. The insinuation was that several judges of the High Court (both Lucknow and Allahabad Benches) suffered from “uncle judges” syndrome and passed orders favourable to parties represented by lawyers known to them. Since a judge refers to his colleagues as brother judges, they become “uncle judges” to his kith and kin. As per the Bar Council of India's regulations, a judge's kin cannot practise in the same court but can practise in an uncle judge's court. A son or daughter of Judge A will not appear before their father but attend Uncle Judge B's court. Likewise, the son or daughter of Judge B will appear before Judge A and not before their father.
Observers of this phenomenon have noted that children of such judges have been able to advance in their career much faster, in terms of rapid rise in the number of favourable orders they secure from the Bench and the corresponding increase in the number of their clients.
The Supreme Court found one such instance in the case of Raja Khan vs U.P. Sunni Central Wakf Board. In this case, there was an appeal against the judgment passed by a Division Bench of the High Court in August 2010 by Raja Khan, the proprietor of a circus company in Bahraich district of Uttar Pradesh.
Raja Khan had challenged the refusal of the U.P. Sunni Central Wakf Board to allot land belonging to the board to hold an annual mela and obtained in June two interim orders of a single judge of the High Court in Allahabad, passed ex parte, in his favour, and against the board. The Division Bench, however, set aside these orders.
The Supreme Court Bench, comprising Justice Markandey Katju and Justice Gyan Sudha Misra, found the interim orders of the single judge shocking as, in its view, they were clearly passed on extraneous considerations. First, it pointed out that the Bahraich district was within the territorial jurisdiction of the Lucknow Bench of the High Court and, therefore, the Allahabad Bench should not have heard the case. Secondly, it said, Raja Khan's writ petition in the High Court was not maintainable because “ordinarily no writ petition lies against a private body”, in this case, the Wakf Board. Thirdly, the Bench was critical of the single judge's interim orders, which granted final relief to Raja Khan, as it was fairly well settled that final relief should not be granted by an interim order.
The Supreme Court held that the Division Bench rightly set aside the interim orders. It said: “The faith of the common man is shaken to the core by such shocking and outrageous orders such as the kind which have been passed by the single judge.”
The Katju-Misra Bench then used the opportunity to reflect on the larger malaise afflicting the High Court. It observed:
“We are sorry to say but a lot of complaints are coming against certain judges of the Allahabad High Court relating to their integrity. Some judges have their kith and kin practising in the same court, and within a few years of starting practice the sons or relatives of the judge become multi-millionaires, have huge bank balances, luxurious cars, huge houses and are enjoying a luxurious life. This is a far cry from the days when the sons and other relatives of judges could derive no benefit from their relationship and had to struggle at the Bar like any other lawyer.
“We do not mean to say that all lawyers who have close relations as judges of the High Court are misusing that relationship. Some are scrupulously taking care that no one should lift a finger on this account. However, others are shamelessly taking advantage of this relationship. There are other serious complaints also against some judges of the High Court.
“The Allahabad High Court really needs some house cleaning and we request Hon'ble the Chief Justice of the High Court to do the needful, even if he has to take some strong measures, including recommending transfers of the incorrigibles.
“Let a copy of this order be sent to the Registrars General/Registrars of all High Courts for being placed before Hon'ble the Chief Justice of the respective High Courts.”
https://frontline.thehindu.com/static/html/fl2801/stories/20110114280103900.htm
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50% HC judges related to senior judicial members: Report
Around 50% of the judges of high courts and 33% judges in the Supreme Court are family members of those in “higher echelons of judiciary”, claims a research done by a Mumbai-based lawyer.
INDIA Updated: Jun 19, 2015 00:22 IST
Soibam Rocky Singh
Hindustan Times
NJAC,Report,HC
Around 50% of the judges of high courts and 33% judges in the Supreme Court are family members of those in “higher echelons of judiciary”, claims a research done by a Mumbai-based lawyer.
Advocate Mathews J Nedumpara, who is a petitioner-in-person, submitted the report to a five-judge constitutional bench hearing petitions challenging the NJAC Act. The situation was a result of the collegium system under which judges appointed other judges, Nedumpara told HT.
https://www.hindustantimes.com/Images/popup/2015/6/19-06-metro-10a.jpg
He said the Supreme Court’s verdicts in the 1990s resulted in the setting up of a collegium system that “monopolised” appointments to the higher judiciary, where kith and kin, and “former and sitting judges of the Supreme Court and high courts, Governors, chief ministers, law ministers, celebrated lawyers, the elite” are favoured.
According to the report, the Supreme Court has a sanctioned strength of 31 judges, out of which six judges were sons of former judges. The report mentioned appointments of over 88 judges from 13 high courts who were either born to a family of lawyers, judges, or worked under some legal luminaries.
Nedumpara claimed that the source of his information was the empirical data collected from the official websites of Supreme Court and 13 high courts in the months of September and October 2014. He said for other high courts, comparable data were not available.
He alleged that the collegium system functioned under complete secrecy where vacancies in the office of the higher judiciary were neither notified nor advertised.
Appearing for Supreme Court Bar Association, senior counsel Dushyant Dave had on Wednesday attacked the collegium system for ignoring merit and appointing judges who failed the common man and gave relief to only the “high and mighty”.
https://www.hindustantimes.com/india/50-hc-judges-related-to-senior-judicial-members-report/story-S8RP2Ir9cEuIN4NewFnvML.html
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EDITORIAL
Justice cannot be relative
DECEMBER 03, 2010 01:36 IST
UPDATED: DECEMBER 03, 2010 01:37 IST
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By paraphrasing Marcellus' famous line in Shakespeare's Hamlet, the Supreme Court has shown its extraordinary annoyance about the state of affairs in the Allahabad High Court. The Division Bench, comprising Justices Markandey Katju and Gyan Sudha Mishra, made two inter-connected points to support the contention that “something is rotten in the Allahabad High Court.” One was the number of complaints about the lack of integrity in a section of the judges, something the Bench said the Chief Justice of the High Court must take action on. The other was that some judges have their friends and relatives practising as lawyers in the court — a state of affairs that, it noted, has resulted in such people becoming “multi-millionaires,” with “huge bank balances, luxurious cars [and] huge houses.” The reference here is to a pernicious and entrenched phenomenon, which the Law Commission, in its 230th report, referred to as “uncle judges.” Uncle judges are the inevitable result of the practice of appointing district judges and those who have practised as lawyers in a High Court as a judge of the same High Court. As the Law Commission observed, “impartiality and justice is the loser” when “judges either settle their scores with advocates who have practised with them or have a soft corner for them.”
Astonishingly, the phenomenon of uncle judges persists despite the Bar Council of India Rules, 1975, which state that advocates should not plead before a court if related to the judge. Moreover, the Supreme Court's charter of values, adopted in 1997, prohibit judges from permitting close relatives to appear before them. The Judicial Standards and Accountability Bill, which is pending in Parliament, will make it illegal to be an uncle judge. Section 3 of the proposed legislation specifically bars a judge from permitting “any member of his immediate family (including spouse, son, daughter, son-in-law or daughter-in-law or any other close relative) who is a member of the bar to appear before him or be associated in any manner with any case to be dealt by the judge.” An important reason behind the mass transfer of 30-odd High Court judges this September and October carried out in the “public interest” by the Supreme Court collegium was that many had kith and kin practising in the same court. But while transfers can check nepotism, they are hardly an effective way of checking other forms of judicial misconduct — most often, they only shift the problem from one court to another. What is needed is a quick and effective mechanism for dealing with judicial misbehaviour, something that the proposed legislation promises. This is why no time must be lost in passing it.
https://www.thehindu.com/opinion/editorial/Justice-cannot-be-relative/article15577891.ece
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Dr Ikramul Haq
OP-ED
Judges and accountability
358
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Dr Ikramul Haq
JANUARY 6, 2019
The process of accountability must start from those who judge others. Any process of accountability lacking credibility and transparency is bound to fail, even bounce back. For sustainable democracy, accountability of all through an impartial and competent judiciary is essential. For independent judiciary, the judges must be men of integrity, blameless, and free from all internal and external pressures. Since justice should not only be done but seen to have been done, the prime duty of a judge is to demonstrate before the public an image of the justice of the nation.
The starting point of across the board accountability in Pakistan should be making public declaration of assets/liabilities by the judges and high-ranking civil/military officials-those of politicians are published every year in the official gazette. The civil society and media should join hands to force the parliament to abolish all laws of secrecy and/or immunity and enact a law in terms of Article 19A of the Constitution for compulsory disclosure of assets/liabilities/taxes paid by judges/generals. We can learn a lot from India in this regards. The issue of asset disclosure of judges in India came in the limelight when a Right to Information Application was filed by Subhash Agarwal with the Supreme Court seeking to know if judges of the High Courts and the Supreme Court were complying with the 1997 Code of Conduct. The public information officer of the Supreme Court claimed “no such information exists in the Supreme Court registry”. Later on, an appeal was submitted before the Central Information Commission (CIC) arguing that the Supreme Court was making a distinction between information with the Chief Justice’s Office and that of the Supreme Court. The CIC, while rejecting this distinction, directed the public information officer of the Supreme Court to secure this information from the Chief Justice’s Office and hand over the same to Subhash Agarwal.
The Indian Supreme Court challenged the order of CIC filing a writ petition in the Delhi High Court. The CIC merely directed release of the information about whether judges were disclosing their assets to the Chief Justice, but in the writ petition, the Supreme Court apprehended that the exercise might lead to paving the way for people to know about asset disclosures under the Right to Information Act. It was claimed that asset disclosures by judges was exempted under this Act as information was lying with the Chief Justice under a “fiduciary relationship”. The second contention was that being “personal information”, it had no relationship with public domain. Chief Justice feared that public access of such declarations would amount to “an unwarranted invasion of the privacy” of his brother judges. Finally, it was argued that Chief Justice was not a “Public Authority”, amenable to the Act.
The starting point of across the board accountability in Pakistan should be making public declaration of assets/liabilities by the judges and high-ranking civil/military officials-those of politicians are published every year in the official gazette
The issue came in further limelight when the Indian government introduced a Bill in parliament providing for asset disclosure of judges, but with a protection clause that the same would not be accessible to the people and that judges would not be made liable for any action on the basis of their disclosure. This led to commotion in parliament-the members rising above party lines vehemently and collectively condemned this clause, forcing the government to pull out the Bill.
In the wake of debate in Parliament and public campaign, a number of High Court judges made their assets public (in Pakistan only Mr. Justice Mansoor Ali Shah did as Chief Justice of Lahore High Court), dissociating themselves from the Chief Justice of India’s stand that asset disclosure would lead to harassment of judges at the hands of disgruntled litigants. Eminent former judges and leading jurists joined the civil society-they openly and publicly demanded public declaration of assets by judges.
The entire civil society and media, unanimously and vocally, opposed the stand of Indian Chief Justice. Succumbing to opposition-both from inside and outside, he ultimately yielded announcing that the asset declarations of the judges would be placed at official website. Soon thereafter, twenty one judges of the Supreme Court, including Chief Justice of India K.G. Balakrishnan, declared their assets, giving details of movable and immovable property owned by them and their spouses. In India, even in the wake of such declarations, there was a sharp criticism over asset disclosures of the judges and their spouses. It was demanded that information about the assets of other close relatives, like sons and daughters, was also important in the Indian context. It is also valid in Pakistani context as even after elevation, the law houses of many judges are run by their relatives.
It is undisputed that in order to avoid conflicts of interest and the misuse of the prestige of office, judges must give up their political, charitable, and business activities when they take the bench. Until 1961, in India, there were instances in which lawyers appeared in the same court over which their relatives were presiding. But after the Advocates Act, 1961 empowered the Bar Council of India to frame rules on the matter, such incidences became rare. Under Rule 6 of this Act, the Bar Council prohibited that “no lawyer can practice in a court where any of his relatives functions as a judge”. The list of such relatives included his/her father, grandfather, son, grandson, uncle, brother, nephew, stepbrother, husband, wife, daughter, sister, aunt, niece, father-in-law, brother-in-law or sister-in-law. However, there have been controversies as to whether the term ‘court’ mentioned in this Rule 6 refers only to the court of that particular judge or the entire court where the relative works. In Pakistan, no such prohibition exists till today.
When in India, Justice P. Balakrishna Iyer became a judge of the Madras High Court, his son advocate. P. B. Krishnamoorthy shifted his practice to another State. When Justice V. R. Krishna Iyer became a Supreme Court judge, his son who was a lawyer as well, chose not to practice in any court in India opting for private employment. Justice V. Sivaraman Nair of the Kerala High Court had worked as a junior of Justice Krishna Iyer. But as soon as his daughter and daughter-in-law started practicing in the Kerala High Court, he requested the President of India to transfer him to another State.
Any such example is unheard of in Pakistan. On the contrary, many serving judges have their kith and kin practicing in the same court, and within a few years of starting practice have accumulated substantial assets/enjoying a luxurious life. This is a far cry from the days when the sons and other relatives of judges could derive no benefit from their relationship and had to struggle at the bar like any other lawyers. One hopes that the honourable judges of Supreme Court making others accountable will end this practice through a suo muto case.
Published in Daily Times, January 6th 2019
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The case of fight of judges and lawyers also brings to mind that other way of tinkering with justice: that of ‘uncle judges’. It has relation to the appointment of those judges in a high court whose relatives are practising in the same court. In 2012, the Law Commission of India in its report recommended that the judges, whose kith and kin are practising in a high court, should not be appointed in the same high court. Since a judge refers to his colleagues as brother judges, they become “uncle judges” to his kith and kin.
In May 2014, the then newly appointed Chief Justice of India (CJI) Rajindra Mal Lodha sparked a debate when he said that at least 16 (34%) of the 47 judges in the Punjab and Haryana High Court have kith and kin practising law at the same place. Either these relatives have private practice or the Punjab and Haryana governments have accommodated them in respective advocate-general offices.
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https://www.tribuneindia.com/news/sunday-special/people/forum-shoppers-pettifoggers--uncle-judges/499893.html
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Every third HC judge is ‘uncle’
At least 16 (34%) of the 47 judges in the Punjab and Haryana high court have kith and kin practising law at the same place. Either these relatives have private practice or the Punjab and Haryana governments have accommodated them in respective advocate general offices. Now the statement by 41st Chief Justice of India (CJI) Rajindra Mal Lodha, who took over on April 27, has triggered a debate about “uncle judges".
PUNJAB Updated: May 03, 2014 09:31 IST
Sanjeev Verma
Hindustan Times
At least 16 (34%) of the 47 judges in the Punjab and Haryana high court have kith and kin practising law at the same place. Either these relatives have private practice or the Punjab and Haryana governments have accommodated them in respective advocate general offices. Now the statement by 41st Chief Justice of India (CJI) Rajindra Mal Lodha, who took over on April 27, has triggered a debate about “uncle judges”.
The CJI has said there is nothing the judges can do about it, and it is for the bar council to take pro-active action. The Bar Council of India as well as the bar councils of states such as Rajasthan and Bihar had passed resolutions to shift uncle judges to high courts outside.
https://www.hindustantimes.com/Images/popup/2014/4/lawyers_compressed.jpgBar Council of India chairman Biri Singh Sinsinwar, when contacted, said: "The new CJI has not been briefed properly about all the facts. The council cannot be blamed, since it has passed a resolution already that when the advocates whose kin are practicing in the same high court are elevated as judges, they should be transferred to other high courts immediately. It is the Supreme Court and the Centre that are not implementing the resolution."
Bar Council of Punjab and Haryan a chairman Rakesh Gupta said the body could act only on complaints, which it had not received, so far. Asked if any resolution of the kind the other bar councils had passed was coming up, he replied: “I can’t comment as a chairman.”
On the issue of “uncle judges”, the Law Commission of India in its 230th report submitted to the union law ministry in August 2009 had mentioned that judges should not be appointed in the high courts where their kith and kin practised.
In May 2010, the-then chief justice of the Punjab and Haryana high cour t, Mukul Mudgal, had forwarded a list of 16 “uncle judges” to the union ministry of law and justice.
The names included justices Adarsh Kumar Goel (now chief justice of the Orissa high court); MM Kumar (chief justice of the Jammu and Kashmir high court) ; Ashutosh Mohunt a (Andhra Pradesh high court); SK Mittal; Hemant Gupta; TPS Mann; Mahesh Grover; KC Puri; KS Ahluwalia; Sabina; MS Sullar; and now retired SD Anand, VK Sharma, Jora Singh, Gurdev Singh and Harbans Lal.
https://www.hindustantimes.com/punjab/every-third-hc-judge-is-uncle/story-emvLdM8SlnlknyCQ4A7uLM.html
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Cannot pass judicial order to prohibit kith and kin of sitting judges from practicing in same court: Supreme Court BY: RITUPARNA DUTTAA29 April 2014 2:11 PM
A Supreme Court Bench headed by Chief Justice R M Lodha and comprising of Justices M B Lokur and Kurian Joseph refused to entertain a PIL seeking to prohibit the kith and kin of sitting judges of the apex court and High Courts from practicing in the same courts. While dismissing the petition, filed by Advocate M L Sharma, the Bench said it couldn’t pass a judicial order on the plea seeking to prohibit the kith and kin of sitting judges of the apex court and High Courts from practicing in the same courts as the Bar Council of India or state Bar Associations are the ones to deal with any matters relating to violation of code of conduct.
Alleging that practicing of kith and kin of judges was another face of corruption, Advocate Sharma, in his petition had made the Centre, BCI the apex regulatory body of lawyers, as Respondents in his Writ Petition.. The petition stated that barring kith and kin of judges from practicing in the same courts would restore faith and value of the judiciary. According to Sharma, the Supreme Court, in its Full Court Meeting in 1997, had adopted a Charter of ‘The Restatement of Values of Judicial Life’ which said a judge should not allow any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him.
The Bench stated that in case, if any member of the Bar does not follow the professional ethics a complaint has to be filed with BCI or state Bar associations, as this is not the role of the court and there cannot be a judicial order. While the bench was dismissing the petition, advocate M L Sharma chose to withdraw it. Justice Lodha while interacting with journalists after taking oath as the 41st CJI, had said that a judge can do nothing in such matters and it is the Bar who has to take action, as Bar has the disciplinary control over the members.
https://www.livelaw.in/pass-judicial-order-prohibit-kith-kin-sitting-judges-practicing-court-supreme-court/
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https://www.thehindu.com/opinion/op-ed/father-son-and-the-holy-court/article6528282.ece
COMMENT
Father, son and the holy Court
K. Chandru OCTOBER 24, 2014 02:41 IST
UPDATED: MAY 23, 2016 19:10 IST
The Bar Council of India must suitably amend relevant rules and uphold the faith of the common man in the judiciary. Picture shows the Supreme Court. Photo: Rajeev Bhatt
op-ed
Senior advocate Fali S. Nariman appearing in cases before the Supreme Court where his son is a judge has revived an old debate regarding the appropriateness of such appearances
In 1967, when U.S. President Lyndon B. Johnson appointed the son of U.S. Supreme Court Judge Tom C. Clark as the Attorney General, Clark promptly resigned from his post. This was because an Attorney General will have to make frequent appearance in the court in which his father will be one of the judges adorning the bench and in that Supreme Court all the nine judges sit together. But in India that has not been the case. Right now the matter regarding the appropriateness of a lawyer appearing in a court in which his near relative is a judge has gained significance in the context of Fali S. Nariman, a leading senior advocate of the Supreme Court, continuing to appear in cases before the Supreme Court in which his son Rohinton F. Nariman has become a Judge since July 2014. While some criticism was aired regarding this in public, Mr. Nariman dismissed complaints maintaining that there is no legal bar for such appearance and said that everyone is equal before the law.
What rules say
Until 1961, in India, there were instances in which lawyers appeared in the same court over which their relatives were presiding. But after the Advocates Act, 1961 empowered the Bar Council of India to frame rules on the matter, such incidences have become rare. Under Rule 6 of the norms established by the Bar Council, no lawyer can practise in a court where any of his relatives functions as a judge. The list of such relatives included his/her father, grandfather, son, grandson, uncle, brother, nephew, stepbrother, husband, wife, daughter, sister, aunt, niece, father-in-law, brother-in-law or sister-in-law. However, there have been controversies as to whether the term ‘court’ mentioned in this Rule refers only to the court of that particular judge or the entire court where the relative works.
During the early 1980s, this rule came up for interpretation before the Karnataka High Court. Pramila Nesargi, a woman advocate who got married to Nesargi, a Karnataka High Court Judge who had lost his wife at that time, appeared before the court of Justice P.P. Bopanna. She was not a senior advocate at that time and as her name did not find mention in the vakalat filed in that case, the Judge directed her to file a vakalat to represent her client. The next day when her name appeared in the cause list, the judge who heard her case refused to allow her to appear before any judge in the Karnataka High Court.
He ruled: “The Bar Council prohibits a lawyer from appearing in a Court where a close relative works as a judge. While the term ‘court’ does not specifically refer to all the courts in a particular High Court, we should be strict in respect of a wife. A wife has an intimate relationship with her husband. Many matters discussed among judges would reach her ears. When a woman who has access to confidential matters in respect of a Court is allowed to practise in the same Court as a lawyer, it can spell danger.”
" Advocates Act, 1961 empowered the Bar Council of India to frame rules so that no lawyer can practise in a court where any of his relatives functions as a judge. "
Subsequently, the matter was raised before the Supreme Court which ordered notice to the Bar Council. But the case was not taken to its logical end and the matter became infructuous as the counsel involved became a senior advocate and the Judge concerned was superannuated. Yet the controversy over the interpretation of the rule still continues to haunt the courts. When Justice P. Balakrishna Iyer became a judge of the Madras High Court, his son advocate P. B. Krishnamoorthy shifted his practice to another State. There was also a strange practice adopted by a lawyer in the early 1970s. The said lawyer used to sign hundreds of memos of appearances in bail applications so that those matters will not go before his father-in-law judge, who was known to be strict regarding granting of bail.
When Justice V. R. Krishna Iyer became a Supreme Court judge, his son who was a lawyer as well, chose not to practise in any court in India opting for private employment. Justice V. Sivaraman Nair of the Kerala High Court had worked as a junior of Justice Krishna Iyer. But as soon as his daughter and daughter-in-law started practising in the Kerala High Court, he requested the President of India to transfer him to another State.
Justice Leila Seth, a former Chief Justice of Himachal Pradesh writing in her autobiography recalled her experience in the Patna High Court regarding the two kinds of ‘practice’ the Bar had adopted.
She wrote: “I heard people talking about ‘Uncle Practice’ and ‘Lal Jhanda’. I wondered what all this was about. I learnt that, since a son was not permitted practice in his father’s court, if you did not want the matter to be heard by that court, you briefed the son and thus stopped the matter from going before the father; you had put out a warning ’Red Flag’. This misuse of a rule that had been incorporated to prevent partisan decisions was apparently quite prevalent, and some young lawyers even managed to make a living out of it. It was also rumoured that certain judges favoured the sons of their brother judges, and so the ‘Uncle Practice’ thrived.”
In S. P. Gupta’s case (1981) dealing with the judges’ transfer issue relating to close relations taking undue advantage of a sitting judge, the following way out was suggested to avoid embarrassment: “We have to take into account the advice given by the CJI in one of the seminars that where close relations of a Judge or the Chief Justice practise in the same court and are likely to gain undue advantage, the concerned judge should himself, in obedience to the keen sense of justice which every Judge possesses opt to be transferred to some other High Court.”
In 1997, all the judges of the Supreme Court assembled under the Chairmanship of Chief Justice J. S. Verma and adopted a resolution on ‘The Values in Judicial Life’. That resolution stated that a judge should prohibit a close relative of his from appearing in his court. It also stated that no relative of his should practise law while staying in the Judge’s house. Markandeya Katju, in his judgment in Raja Khan’s case, sounded a warning on the ills of kith and kin being allowed to practise in the same court as their relatives. He said: “Some Judges have their kith and kin practising in the same court, and within a few years of starting practice the sons or relations of the Judge become multimillionaires, have huge bank balances, luxurious cars, huge houses and are enjoying a luxurious life. This is a far cry from the days when the sons and other relatives of Judges could derive no benefit from their relationship and had to struggle at the bar like any other lawyer.”
What is the way out?
When Justice R. M. Lodha took over as the Chief Justice of India, some presspersons raised a question as to whether it was not possible to prohibit relatives of a judge from practising as lawyers in the same Court. He replied that it was up to the Bar to find a solution to the problem. He also dismissed a public interest litigation filed by advocate M. L. Sharma seeking a ban on the relatives of judges practising in the same courts.
With the controversy reviving in the context of Mr. Nariman appearing in the court where his son is a judge, the Bar Council of India must be called upon to suitably amend relevant rules and uphold the faith of the common man in the judiciary.
(K. Chandru is a retired Judge of the Madras High Court.)
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Mar 17, 2019
IRE 230 /8 (81.5)
Can't pass order prohibiting kin from practicing in same court: SC
India hidden Apr 28, 2014 20:14:46 IST
New Delhi: The Supreme Court today said it cannot pass a judicial order on the plea seeking to prohibit the kith and kin of sitting judges of the apex court and high courts from practicing in the same courts and said any matters relating to violation of code of conduct have to be dealt by the Bar Council of India or state Bar Associations.
"This is not the function of the court. File a complaint for stopping such practice. If any member of the Bar who is not following the professional ethics, be it the son of a judge, file a complaint (with BCI or state Bar associations). There cannot be a judicial order," a bench headed by Chief Justice RM Lodha said.
Cant pass order prohibiting kin from practicing in same court: SC
File photo of the Supreme Court building, Reuters
"Whatever be the status, take the complaint to a logical conclusion and lead it with evidence," the bench, also comprising justices MB Lokur and Kurian Joseph, said.
The bench made the remarks while declining to entertain a PIL seeking to prohibit the kith and kin of sitting judges of the apex court and high courts from practicing in the same courts.
While the bench was dismissing the petition, advocate ML Sharma, who had filed the plea, preferred to withdraw it. In an interaction with journalists after taking oath as the 41st CJI yesterday, Justice Lodha had said that there is nothing that a judge can do in such matters and it is upto the Bar to be "pro-active" and take action.
"Bar has the disciplinary control over the members. It is for the Bar to take action and closely follow the conduct of the members. What can a judge do if some lawyers do not adhere to ethics. Rules are there and Bar has to take action," he had said.
"If my son or daughter does not follow the code of conduct then Bar has to take action. Unfortunately, the role which the Bar is required to play is not being played by the Bar and unfortunately we are blamed," he had said.
The petition, in which the Centre, BCI, the apex regulatory body of lawyers, were made respondents, alleged that "practicing of kith and kin of judges is another face of corruption".
Prohibiting them from practicing in the same courts would reinstate faith and value of the judiciary, the petition said. The lawyer said that the Supreme Court, in its Full Court Meeting in 1997, had adopted a Charter of 'The Restatement of Values of Judicial Life' which said a judge should not permit any member of his immediate family, such as spouse, son, daughter, son-in-law or daughter-in-law or any other close relative, if a member of the Bar, to appear before him or even be associated in any manner with a cause to be dealt with by him.
PTI
https://www.firstpost.com/india/cant-pass-order-prohibiting-kin-from-practicing-in-same-court-sc-1500387.html
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Shot at list on judicial clans
Chief Justice seeks details from judges
By R. Balaji
Published 6.10.16
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New Delhi, Oct. 5: Chief Justice of India T.S. Thakur has initiated a process of discreetly seeking information from his colleagues on their family members who are practising as lawyers.
The Chief Justice is likely to make public the details of the kith and kin of Supreme Court judges practising in various courts or working with law firms.
The initiative, sources said, is intended to dispel any misgivings among the public about the "conflict of interest" of sons and daughters appearing in different courts when their father is a judge.
Justice Thakur's two sons and a daughter are practising lawyers but they have consciously kept themselves away from the Supreme Court right from November 2009 when he was elevated to the Supreme Court.
Some of the children of all the remaining four judges in the high-powered collegium - Justices A.R. Dave, J.S. Khehar, Dipak Misra and J. Chelameshwar - are also practising lawyers. They too do not practise in the Supreme Court to maintain the "highest standards of the Bar", said a top judicial officer.
According to sources, a preliminary scrutiny by the Chief Justice has indicated that barring a few judges such as Justices N.V. Ramana and A.M. Khanwilkar, most of the judges have their own kith and kin practising in different courts.
Even if they appear in the Supreme Court, they do not appear before the bench on which their parent is sitting, a senior judge said.
"Although we are not bound to give the details to the CJI about our kith and kin, we decided to part with the information to usher in more transparency," a judge said.
Another senior judge said: "A Bollywood star wants his children to be actors. Businessmen would like their wards to pursue the family business. Similarly, politicians, doctors and chartered accountants would also like their children to take up the same profession.
"So, there is nothing wrong in judges wanting their children to practise law, which is a noble field, as long as they don't appear before their own parents or relatives."
According to a judge, Article 19(1)(g) grants every citizen the fundamental right to carry on any profession, occupation, trade or business.
"Just because a person is a judge's son or daughter, he or she cannot be denuded of the power to choose the judiciary as a profession," said a collegium member.
The clarification by the judges came against a backdrop of suggestions earlier that some high court judges in the past had sought to get their kith and kin promoted as judges, depriving more deserving candidates.
The National Judicial Appointments Commission, which was struck down in October last year by a five-judge constitution bench, had sought to overcome these defects, said a few other judges who felt it would be difficult to convince others that personal preferences were not at play when decisions concerning relatives of judges are taken.
Countering the argument, a judge said: "Such shortcomings are bound to be there in any system as judges are also human."
https://www.telegraphindia.com/india/shot-at-list-on-judicial-clans/cid/1483457
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Scions
Of Themis And Zeus Scions Of Themis And Zeus
Keep
those elevated from the subordinate judiciary out, and nearly half of India’s
top judges are kith and kin of ex-judges and top jurists
USHINOR
MAJUMDAR09 SEPTEMBER 2016
“The typical Indian judge is Hindu,
upper-class, upper-caste and male.” The statement drew a few titters at an
event in the national capital late in August. But Dr Mohan Gopal, former
director of the National Judicial Academy, was speaking in earnest and many
in the audience, a gallery of legal luminaries, were nodding grimly. Barely
48 hours later, instead of genteel, theoretical critique, there was the scrum
of a real battle. All the gavels in India’s judicial courts coming down in
unison could not have restored order after the fifth seniormost judge in the
Supreme Court, Justice Jasti Chelameswar, refused to attend a meeting of the
SC collegium over lack of transparency and arbitrary appointment of judges.
Judges
appointing judges, a system created by the Supreme Court in 1993, was akin to
the Gymkhana Club deciding on new members, Union finance minister Arun
Jaitley, a senior lawyer of long standing, had quipped in October 2015.
Sensing the mood, the Supreme Court had asked the Union government in
December 2015 to help it evolve a ‘Memorandum of Procedure’ in order to
streamline the functioning of the collegium. With no agreement so far on what
method to choose for this, and with the apex court divided over Justice
Chelameswar’s charge, the court has eventually agreed to hear, this month, a
petition that accuses the collegium of promoting relatives and “monopolising
the higher judiciary by the kith and kin of sitting and former judges of the
Supreme Court, legal luminaries and their juniors”.
The
numbers can give pause to even an arch euphemist. The National Lawyers’
Campaign for Judicial Transparency and Reforms (NLC), the association that
filed the petition, says that out of the 28 sitting judges of the Supreme
Court at present, as many as nine happen to be close relatives of former
judges, including a son, a grandson and a nephew of former chief justices of
India. Another is the son of a former chief minister, while one is the son of
a former advocate-general of a state (see box). As for India’s high courts,
the petition, first filed in the SC by the NLC in 2014-15 during the NJAC
case, claimed that a large representative sample from that period showed that
nearly one-third of the HC judges surveyed happened to be related to sitting
or former judges and legal luminaries. Their data showed that 88 HC judges
out of 300 surveyed across 13 high courts fell in this category. And if one
refines the field to exclude the one-third (roughly 100 out of 300) who are promoted
to the bench from the lower courts—a norm followed since the British days—the
proportion of kith and kin who are appointed judges directly from the Bar
rises to almost half, the NLC petition showed.
There
is no doubt whatsoever about the merit or competence or integrity of the
judges.
The
NLC offers the caveat that the data is incomplete, largely because the
complete information is not available in the public domain. And some big HCs,
like UP’s, were not part of the survey. But enough anecdotal evidence exists
to indicate the phenomenon is not unknown in the remaining courts. For
instance, a large number of recommendations for elevation as HC judges sent
by the Allahabad High Court were rejected by a cautious SC collegium, as
widely reported this week.
Only
seven lawyers have been elevated directly from the Bar to the Supreme Court
bench since Independence, three of them (Rohinton Nariman, U.U. Lalit and L.
Nageshwar Rao) in the last two years. The previous four were S.M. Sikri, S.C.
Roy, Kuldip Singh and N. Santosh Hegde.
In
British India, one-third of the judges were recruited from the lower
judiciary, comprising people from the Indian Civil Service, and the remainder
from among the pool of practising lawyers. In 1908, the then advocate-general
of Bombay, Basil Scott, was directly made the chief justice of the Bombay
High Court. Since Independence, lawyers began declining offers for elevation
and, increasingly, sitting high court judges were elevated to the apex court.
There
is no doubt whatsoever about the merit or competence or integrity of the
judges. The issue here is that choices tend to be made from a shallow pool of
probables. Marry this to the other issue at stake: the fact that appointments
are decided behind closed doors by a collegium, with only the names being
made public, not the reasons for acceptance or rejection.
A
former SC judge, privy to the exercise, says during his time collegium
meetings did not last long; nor was there much deliberation. “One or two
judges would just say: ‘I know the person. He is not fit to be elevated.’
That would be the end of the discussion, with others keeping their own
counsel,” he says. That the SC collegium is not above making errors of
judgement is well chronicled. The decision to elevate P.D. Dinakaran, chief
justice of Karnataka and then Sikkim HC, had to be rolled back after allegations
of corruption were raised in 2009. He resigned on July 29, 2011, after
impeachment proceedings were initiated.
“During
the NJAC case hearing, we had said a number of judges were from among the
relatives of former judges,” says NLC president Mathew Nedumpura. “Harish
Salve brushed us aside, hinting that we were ‘people from the outside’. Fali
Nariman called us disgruntled people. We agree we are disgruntled because of
this system. We gave (our points) in writing, but both sides had a large army
of senior advocates who were not ready to hear us.”
Nedumpura
adds: “The right connections seem to make a difference. These are people from
the elite sections of society. Several appointments are clearly influenced by
political considerations. Overall the selections are from a very small,
insulated pool. The system is unfair to first-generation lawyers even if they
are brilliant.”
On
September 5, adding ballast to this dissenter’s point of view, the SC said it
would hear NLC’s petition that a judicial commission independent of the
judiciary and the government be created.
“Any
relationship with a former judge’s family has had little bearing on the
elevation of Supreme Court judges. It just doesn’t work at the SC.”
Gopal
Subramanian, Former Solicitor General of India
That
HC collegiums have been recommending names of lawyers related to judges or
other legal luminaries is no secret. Among the lawyers’ names recommended for
the Delhi HC, at least three were said to be related to ex-judges. One of
them is the relative of a former judge of the Delhi HC, another the
brother-in-law of a lawyer-politician and a distant relative of a sitting SC
judge. The third was said to be a relative of a sitting judge of the Punjab
and Haryana HC. Among the sitting
judges of the Delhi HC is the son of a former governor of two states;
another’s father was a judge in the
Bombay HC.
Kinship,
however, cannot be automatically held against anyone, insist jurists and
retired judges. “They can well be deserving candidates,” says Justice (retd)
S.S. Sodhi, former chief justice of the Allahabad High Court. “But there are
instances where by virtue of being related to former judges, they get special
consideration even when they don’t deserve it. It’s unfortunate, but it does
happen. Once there is transparency, such aberrations will be rarer.”
Former
solicitor-general of India Gopal Subramanian says, “In my analysis, any
relationship with a former judge’s family has had little bearing on a
judge’s elevation. In the current SC roster, except for incidental
relationships with former judges, they are mostly self-made. This just
doesn’t work at the Supreme Court (level). The present CJI’s father resigned
as an additional judge, that too of a high court. Justice Shiva Kirti Singh
was AAG of Bihar and a popular lawyer. His father, Justice Shambhu Prasad
Singh, had absolutely no role to play in his elevation. When Justice Har
Govind Mishra died, Arun Mishra was only a university student; he struggled
his way up with sheer hard work and scholarship. They had a big family that
he looked after.”
“Justice
U.R. Lalit was rebuffed during the Emergency and his appointment as an
additional judge was never confirmed, so he started his practice as a Supreme
Court lawyer. Uday U. Lalit was a mere boy at the time and rose up purely on
merit. He was appointed directly to the SC. Justice Amitava Roy is again a
self-made man and would have been elevated much earlier, except for the fact
that he doesn’t do politics. Nobody would even connect him with his father-in-law
Salil Kumar Datta unless they studied judicial history minutely. Justice D.Y.
Chandrachud is a self-made man with no influence from his father.”
But
Nedumpura and others argue that the collegium’s secretive functioning makes
it impossible to establish whether being a relative played a part or not.
“Names do matter a lot. How do you explain the number of relatives who are
appointed?” he asks.
Ironically,
while the SC collegium is at the receiving end of criticism for its opacity,
even the government does not make public its reasons for rejecting
recommendations made by the collegium for appointments or transfers. Indeed,
some senior advocates believe the collegium can hardly act on its own. A case
in point is the letter to the CJI written by senior advocate Yatin Oza of the
Gujarat HC. Oza invited contempt charges from that court for alleging the
file containing the response of one HC judge on the proposal to transfer him
to Madhya Pradesh was not produced before the collegium. Oza claimed the
judge in question had political patronage and had been assured he would not
be transferred until later despite the collegium’s recommendation.
Justice
R.M. Lodha has become a household name for shaking up the cricket
establishment in the SC’s effort to clean up the sport’s administration. His
grandfather was an influential lawyer in the Rajasthan Bar; his father and
two uncles were judges in the Rajasthan HC. So was Justice Lodha, who
eventually retired as the 41st Chief Justice of India. Justice Lodha had
stood up for the collegium (through which he himself was appointed) but
called for wider consultations. He welcomed Justice Chelameswar’s efforts to
promote transparency, but felt differences within the collegium should not
have been made public while the process was still being evolved and refined.
Many ex-judges have voiced their uneasiness at the opacity, though. After her
retirement, Justice Ruma Pal said at a lecture in 2011, “The process of
appointing judges to the superior courts is possibly the best kept secret of
the country.” She also used the word “mystique”. A well-known jurist echoes
the sentiment: “Qualifications for a judge are laid down, but how you become
a judge is not known to me.”
“The
judiciary preaches transparency, but, on the administrative side, it is
more comfortable operating under an opaque veneer.”
Meet
Malhotra, Senior advocate
One-third
of India’s high court judges are supposed to be drawn from the state’s
subordinate judiciary. That proportion is not reflected in the Supreme Court’s
roster. Only a few exceptions have managed to travel up through the ranks.
One of them, Justice Bhanumathi, has risen up from being a district judge.
Justice C. Nagappan was a junior in the chambers of former senior advocate K.
Parasaran before the latter became attorney-general. Justice Nagappan joined
the Tamil Nadu judicial services as a sessions judge and is now a sitting SC
judge.
So
how exactly do lawyers become judges? Two-thirds of HC judges are chosen from
among senior lawyers. A senior lawyer says relatives of sitting and former
judges or eminent lawyers are designated as seniors and made judges quite
early. “There is a sitting judge in the Delhi HC whose father was a judge. So
the son was easily noticed and he was designated a senior at 45 and made a
judge at 46. It didn’t take him long to climb up,” he says. Union MoS for Law
and Justice P.P. Chaudhary says, “It’s not just relatives, even lawyers who
have worked as juniors of sitting and former judges (get elevated).” The NLC
too observes that some judges from the kith and kin category were elevated at
an early age.
There
are exceptions. Justice L. Nageswar Rao was born in a nondescript village in
Andhra Pradesh and, from that humble background, made his way to Delhi to
study for the civil services before turning to study law. He returned to
Andhra Pradesh and, after a few years in the high court there, he set up
office in Delhi without the help of a brother, father or uncle. In less than
20 years of practice, the then law minister first offered him judgeship at a
high court of his choosing. Rao declined. In 2014, he was offered a Supreme
Court judgeship, but declined due to personal reasons. This year, he was
again made the offer when he finally accepted it.
Kinship
cannot be automatically held against anyone, insist jurists and retired
judges.
But
the exceptions, proverbially, prove the rule. Justice Sodhi has a personal
anecdote to relate on the lack of transparency. Claiming he was denied
elevation to the SC for disagreeing with other judges on their
recommendations, he says, “I support Justice Chelameswar; he has raised an
issue which I have been a victim of. At least make out a case for publishing
the papers after a certain number of years. They can open up the papers for
appointment of previous judges, which will itself create a check for any
wrongdoing in future appointments.”
In
his 2007 book The Other Side of Justice, Justice Sodhi wrote about how, in
1994, he had been initially selected by the collegium, but the then CJI
dropped his name from the list later. Here is an excerpt of the operative
part: “Names of four high court judges were agreed to. What followed
thereafter was the controversial part. Without the knowledge or consent of
Justice Kuldip Singh or Justice Verma, CJ Ahmadi wrote and sought the views
of Justice(s) M.M. Punchhi and Justice R.M. Sahai. As was expected,
both...opposed my appointment. The reasons for their opposition were
well-known to Chief Justice Ahmadi and, indeed, to many other judges.” His
differences with Justice Punchhi, he writes, went back to the tenure of
Justice V. Ramaswami as chief justice at Chandigarh. “While Justice Punchhi
had aligned himself to Justice Ramaswami, I stood out prominently among the
judges who were opposed to his doings,” he recalls. As for Justice Sahai, “he
was unhappy with me on two counts. First, I did not agree to recommend his
son for appointment as judge (at Allahabad). Incidentally, his son did indeed
later become a judge there. Second, I had transferred Justice S.N. Sahay, his
son’s father-in-law, from Lucknow to Allahabad.”
Justice
Liberhan told Outlook, “I was ignored for four years. Directly or
indirectly, the collegium used to send names for HCs too. When I was chief
justice, I saw that favouritism worked through a mutual exchange. ‘You
accommodate my man and I’ll accommodate yours’ was the tacit policy.” Another
former HC judge, Justice Bhaskar Bhattacharya, had alleged that he was left
out because he had objected to the elevation of then CJI Altamas Kabir’s
sister to the bench. And the subsequent exchanges, despite Justice Kabir’s
caveats that he had recused himself, only deepened the sense of a closed
system that could do with more light.
https://www.outlookindia.com/magazine/story/scions-of-themis-and-zeus/297827
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Kerala
High Court judge parting shot: Judges’ jobs are not family property
Justice
Pasha’s observations came two days after the Kerala High Court dismissed a
writ petition challenging the High Court’s recommendation to the Supreme
Court Collegium to elevate five advocates as judges of the high court.
Written
by Shaju Philip | Thiruvananthapuram |
Updated:
May 25, 2018 6:17:49 am
Justice
Pasha said he had learnt some names from the Bar have been recommended for
elevation. Kerala High Court Judge B Kemal Pasha, who retired Thursday, said
that appointment of judges is not a family property to be partitioned and
that judgeship should not be allotted on caste basis. Justice Pasha’s
observations came two days after the Kerala High Court dismissed a writ
petition challenging the High Court’s recommendation to the Supreme Court
Collegium to elevate five advocates as judges of the high court.
The
petitioners, advocates C J Joveson and Sabu, had sought a direction to the
Collegium to make a fresh recommendation where ordinary lawyers, “who have no
godfathers too are considered.’’ They argued that the recommended candidates
are kith and kin of either judges, former judges or the advocate-general. The
petition alleged that one is a son-in-law of a former HC judge, another is a
cousin of a High Court judge, a third is a son-in-law of a top judicial
officer and a fourth is a relative of a former SC judge.
The
petitioners arraigned these five advocates as the respondents. Justice Pasha,
in his speech at the farewell meeting attended by members of the Bar and the
Bench, said, “Appointment of judges is not a family property of someone to be
partitioned. I don’t believe that judgeship should be allotted to each and
every religion, caste or sub-caste.’’
Justice
Pasha said he had learnt some names from the Bar have been recommended for
elevation. “If the names given by the media are correct, I can very well say
that most of the judges of this court, including me, have no good fortune to
see even the faces of some these persons. Is it good for judiciary?’’
He
said competent lawyers eligible to be elevated are there among the members of
the Bar. “To pick and choose some persons, who are not at all competent to be
judges and to recommend them for elevation will point fingers towards the
system. A judge is to be considered as a minister of this temple of justice.
The duty to impart justice is nothing but a divine function also. When
persons who have to perform divine functions are to be selected, they should
have the capacity for it,’’ he said.
“What
is alarming me today is that the great glory achieved by this court in the
past decades by the hard work of the judges of the court and the elite Bar,
has been considerably diminished a lot due to some recent incidents (that
have) happened here. Such a belief is there not only among the members of the
Bar but also among the judges past and present.’’
“The judges will come and go but the Bar
will always be there. The said incidents have tarnished the image of this
institution and lowered its reputation in the estimation of the right
thinking members of the public. In such situations, the brethren in the Bar
have to react to it, if it is felt (there is) any substance in it,’’ Justice
Pasha said.
He
said that imparting justice is not an easy job and one has to jump many
hurdles for the same. Hurdles are being created by extra-judicial forces and
also on some occasions, from within the system. Justice Pasha expressed
reservations against judges taking up post-retirement posts.
“Government
is the major litigant before the courts of law, especially before the high
court. When a judge is expecting a post-retirement job from the government,
normally he will be in a position not to invite displeasure from the
government, at least in the year of retirement. There is a common complaint
that such judges are not dared to invite displeasure from the Government by
expecting such post retirement jobs. I believe the words of Justice S H
Kapadia and Justice T S Thakur that any judge shall not accept any salaried
job under the government, at least for a cooling period of three years from
his/her retirement,’’ he said.
https://indianexpress.com/article/india/kerala-high-court-judge-kemal-pasha-judges-jobs-are-not-family-property-5190256/
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Frontline
Volume
28 - Issue 01 :: Jan. 01-14, 2011
INDIA'S
NATIONAL MAGAZINE
from
the publishers of THE HINDU
THE
JUDICIARY
‘Uncles'
on Bench
V.
VENKATESAN
The
Supreme Court's recent strictures against some judges of the Allahabad High
Court revive the debate on the uncle judge syndrome.
PTI
At
the maingate of the High Court in Allahabad.
IN
Shakespeare's Hamlet, Marcellus famously remarks that “something is rotten in
the state of Denmark” as he and Horatio debate whether or not to follow
Prince Hamlet and his ghost-father into the dark night. The ghost is a
visible symbol of Claudius' crime of slaying his brother, the King of
Denmark, and marrying his wife, Queen Gertrude. Marcellus' expression has
become the standard phrase to refer to corruption and lack of morals in the
high echelons of power.
On
November 26, the Supreme Court Bench began its severe indictment of the state
of affairs in the Allahabad High Court by saying that “there is something
rotten in the Allahabad High Court” and it “needs some house cleaning”. The
insinuation was that several judges of the High Court (both Lucknow and
Allahabad Benches) suffered from “uncle judges” syndrome and passed orders
favourable to parties represented by lawyers known to them. Since a judge
refers to his colleagues as brother judges, they become “uncle judges” to his
kith and kin. As per the Bar Council of India's regulations, a judge's kin
cannot practise in the same court but can practise in an uncle judge's court.
A son or daughter of Judge A will not appear before their father but attend
Uncle Judge B's court. Likewise, the son or daughter of Judge B will appear
before Judge A and not before their father.
Observers
of this phenomenon have noted that children of such judges have been able to
advance in their career much faster, in terms of rapid rise in the number of
favourable orders they secure from the Bench and the corresponding increase
in the number of their clients.
The
Supreme Court found one such instance in the case of Raja Khan vs U.P. Sunni
Central Wakf Board. In this case, there was an appeal against the judgment
passed by a Division Bench of the High Court in August 2010 by Raja Khan, the
proprietor of a circus company in Bahraich district of Uttar Pradesh.
Raja
Khan had challenged the refusal of the U.P. Sunni Central Wakf Board to allot
land belonging to the board to hold an annual mela and obtained in June two
interim orders of a single judge of the High Court in Allahabad, passed ex
parte, in his favour, and against the board. The Division Bench, however, set
aside these orders.
The
Supreme Court Bench, comprising Justice Markandey Katju and Justice Gyan
Sudha Misra, found the interim orders of the single judge shocking as, in its
view, they were clearly passed on extraneous considerations. First, it
pointed out that the Bahraich district was within the territorial
jurisdiction of the Lucknow Bench of the High Court and, therefore, the Allahabad
Bench should not have heard the case. Secondly, it said, Raja Khan's writ
petition in the High Court was not maintainable because “ordinarily no writ
petition lies against a private body”, in this case, the Wakf Board. Thirdly,
the Bench was critical of the single judge's interim orders, which granted
final relief to Raja Khan, as it was fairly well settled that final relief
should not be granted by an interim order.
The
Supreme Court held that the Division Bench rightly set aside the interim
orders. It said: “The faith of the common man is shaken to the core by such
shocking and outrageous orders such as the kind which have been passed by the
single judge.”
The
Katju-Misra Bench then used the opportunity to reflect on the larger malaise
afflicting the High Court. It observed:
“We
are sorry to say but a lot of complaints are coming against certain judges of
the Allahabad High Court relating to their integrity. Some judges have their
kith and kin practising in the same court, and within a few years of starting
practice the sons or relatives of the judge become multi-millionaires, have
huge bank balances, luxurious cars, huge houses and are enjoying a luxurious
life. This is a far cry from the days when the sons and other relatives of
judges could derive no benefit from their relationship and had to struggle at
the Bar like any other lawyer.
“We
do not mean to say that all lawyers who have close relations as judges of the
High Court are misusing that relationship. Some are scrupulously taking care
that no one should lift a finger on this account. However, others are
shamelessly taking advantage of this relationship. There are other serious
complaints also against some judges of the High Court.
“The
Allahabad High Court really needs some house cleaning and we request Hon'ble
the Chief Justice of the High Court to do the needful, even if he has to take
some strong measures, including recommending transfers of the incorrigibles.
“Let
a copy of this order be sent to the Registrars General/Registrars of all High
Courts for being placed before Hon'ble the Chief Justice of the respective
High Courts.”
V.
GANESAN
Justices
Markandey Katjuand (below) Gyan Sudha Misra. They held that "the faith
of the common man in the country is shaken to the core by such shocking and
outrageous orders such as the kind which have been passed by the single
judge”.
The
Supreme Court's observations hurt the Allahabad High Court collectively, and
the High Court moved an application before the Supreme Court seeking to
expunge the remarks. The Katju-Misra Bench, which heard the High Court
Registrar's petition, reasoned on December 10 that its November 26 order did
not refer to all the judges but was a pointer for introspection. The Bench
noted that the Allahabad High Court was the largest one in India and that
what happened there was of great importance to the entire judiciary in the
country.
The
Bench observed: “There are presently many excellent judges of the Allahabad
High Court. These upright judges are keeping the flag of the High Court
flying high by their integrity and hard work. It is, therefore, totally false
to say that all judges of the Allahabad High Court are corrupt, or to
construe our order dated November 26, 2010, in that manner. What is mentioned
in that order is that there are complaints against certain judges, not all
judges.”
Justice
Katju declared that he had a close attachment to the Allahabad High Court as
his family had been associated with it for over a century. It was, therefore,
inconceivable that he would like to damage the image of the High Court in any
way, he said. He continued:
“However,
what has caused great pain and anguish to us are certain unfortunate
happenings… distressing orders passed during the summer vacations by certain
judges of the High Court this year, one of which pertains to this very case.
“In
para 9 of the application filed before us it is stated that sweeping
observations have been made against the High Court. Reputation of an
institution is damaged and its image sullied when some of its members pass
shocking orders and behave in a totally unacceptable manner. We can quite appreciate
the anguish of some of the learned judges of the Allahabad High Court, but we
cannot overlook the fact that there are times when introspection is required,
and not mere reaction.”
Observers
are, however, surprised that despite exposing a serious sign of corruption in
the higher judiciary, the Supreme Court has stopped with just admonition,
leaving it to the High Court to reform itself.
Bar
Council Rules
In
2003, the Bar Council of India (BCI) demanded that all judges whose close
relatives practised in the same courts be transferred. In a report, the BCI
had revealed then that a substantial number of High Court judges and the
machinery appointing them had disregarded the requirement that an advocate
should not practise in a court in which his or her relative happens to be a
judge.
This
requirement is specified as a standard of professional conduct and etiquette
for an advocate, under the BCI Rules. Rule 6 makes it mandatory for an
advocate not to practise before a court if any of its judges is related to
him or her as father, grandfather, son, grandson, uncle, brother, nephew,
first cousin, husband, wife, mother, daughter, sister, aunt, niece,
father-in-law, mother-in-law, son-in-law, brother-in-law, daughter-in-law or
sister-in-law.
The
BCI had then forwarded to the Union Law Ministry a list of 131 “uncle judges”
(out of a total 499) in 21 High Courts and 180 advocates with their names and
nature of relationships. Neither the government nor the higher judiciary has
so far found the necessary will to rid the judiciary of this menace.
MANOB
CHOWDHURY
In
2004, Justice B.K. Roy, then Chief Justice of the Punjab and Haryana High
Court, issued an administrative order barring a group of 10-12 judges from
hearing any case argued by their relatives. In his order, Justice Roy said:
“It was generally believed that A,B, C and D (all judges) constituted a
mutual cooperative society, in the sense it was believed that each of the
four judges would protect the sons of the three other judges.” Punjab and
Haryana High Court judges protested against this order and proceeded on leave
en masse. Justice Roy was subsequently transferred. Since then the order has
been ignored.
In
the wake of the Supreme Court's strictures against the Allahabad High Court
judges, the Bar Council of Rajasthan has demanded the cleaning up of the
Rajasthan High Court too. In a unanimous resolution, it asked the President
of India to immediately transfer High Court judges whose kin are practising
in their own courts.
Relative
of the judge
The
Judicial Standards and Accountability Bill introduced in Parliament bars
immediate family and close relatives of judges from practising in their
court. Section 3 (2)(c) of the Bill states: “No judge shall permit any member
of his immediate family (including spouse, son, daughter, son-in-law or
daughter-in-law or any other close relative) who is a member of the bar, to
appear before him or be associated in any manner with a cause to be dealt
with by him.”
Section
3(2)(d) asks the judge not to permit any member of his family who is a member
of the Bar to use the residence in which he resides or use other facilities
provided to the judge for professional work of such member; and Section
3(2)(e) bars the judge from hearing and deciding a matter in which a member
of his family, or his close relative or a friend, is concerned.
The
Bill explains that the term “relative of the judge” includes his or her
spouse, brother or sister, brother or sister of the spouse (and the spouse of
that brother or sister), brother or sister of either of the parents of the
judge, any lineal ascendant or descendant of the judge or the spouse of the
judge (and the spouse of that person).
The
Bill draws its sustenance from the Law Commission's 230th Report, presented
to the government in 2009. The commission said in this report:
“If
a person has practised in a High Court, say, for 20-25 years and is appointed
a judge in the same High Court, overnight change is not possible. He has his
colleague advocates – both senior and junior – as well as his kith and kin,
who had been practising with him. Even wards of some district judges,
elevated to a High Court, are in practice in the same High Court. There are
occasions when advocate judges either settle their scores with the advocates
who have practised with them, or have soft corner for them. In any case, this
affects their impartiality, and justice is the loser. The equity demands that
justice shall not only be done but should also appear to have been done.
Judges, whose kith and kin are practising in a High Court, should not be
posted in the same High Court. This will eliminate ‘uncle judges'.”
The
commission added:
“Sometimes
it appears that this high office is patronised. A person, whose near relation
or well-wisher is or had been a judge in the higher courts or is a senior
advocate or is a political high-up, stands a better chance of elevation. It
is not necessary that such a person must be competent because sometimes even
less competent persons are inducted. There is no dearth of such examples.
Such persons should not be appointed and at least in the same High Court. If
they are posted in other High Courts, it will test their calibre and eminence
in the legal field.”
The
rot in the higher judiciary seems to be much deeper than what has surfaced.
https://frontline.thehindu.com/static/html/fl2801/stories/20110114280103900.htm
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