Politics of judiciary

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On how politics and judiciary influenced each other during the 60 years of the Indian republic.

IN his classic book Politics of the Judiciary, first published in 1977, Professor J.A.G. Griffith exposed the myth of judicial neutrality in the United Kingdom. Griffith, who passed away on May 8, 2010, at the age of 91, had many admirers, among them India’s own nonagenarian jurist, Justice V.R. Krishna Iyer. Citing Griffith, Justice Iyer wrote in The Hindu recently that to have political views and beliefs is not a form of guilt; to hide it is guilt.

An obituary carried in The Sunday Times, London, pointed out that it was because of his belief in their bias that Griffith wished to limit the influence of judges on public policy, opposed a Bill of Rights and would not rely on judicial activism to safeguard liberties. He preferred to trust the democratic process, with a strong House of Commons to hold Ministers to account, and a more open government, the writer opined. Like Griffith, Krishna Iyer too is a trenchant critic of the class bias in the Indian judiciary but might still endorse the judiciary’s activist role to safeguard liberties.

Many readers will find this subtle distinction in the perceptions of the two greatest critic of the contemporary judicial system relevant to understand how politics and the judiciary influenced each other during the 60 years of the Indian republic. B. Sen’s memoir, Six Decades of Law, Politics and Diplomacy, fills a gap in unravelling this mutual influence.

Sen is an octogenarian and the senior-most among Senior Advocates in India, having been designated by the Supreme Court in 1956 in the 10th year of his practice. After his call to the Bar in England, he began his practice before the Judicial Committee of the Privy Council, the then highest Court of Appeal for India, and later shifted to New Delhi to be one of the early entrants to form the nucleus of a resident Supreme Court Bar.

Sen also had a stint in diplomacy; he served as Legal Adviser to the Ministry of External Affairs for 10 years during the formative years of India’s foreign policy. He later took up the position of Secretary-General of the Asian-African Legal Consultative Organisation, an intergovernmental organisation associated with the United Nations, on a full-time basis. He is currently a member of the Governing Board of the International Institute for the Unification of Private Law in Rome and is also a member of the Permanent Court of Arbitration at The Hague. He was decorated with the Order of the Rising Sun, Gold and Silver Star by the Emperor of Japan for his contribution to the development of international law within the U.N.

Disillusioned by the vagaries of international politics, Sen returned to active practice in the Indian Supreme Court in 1988. “Where machinations of nation-states prevail over any notion of fair play, what better option could I have other than coming back?” he asks in Six Decades of Law, Politics and Diplomacy. His ability to recollect even minute details about what happened 60 years ago is astonishing. The first chapter, “Call to the Bar; Privy Council Practice; Life in Post War Europe”, is a fascinating account of his early interactions with those who shaped his professional life.

The second chapter, “The Supreme Court in the Formative Years; the Emergency and After”, carries his nostalgic impressions as an Indian lawyer in the 1950s and 1960s. Sen describes the conversations he had with the first six judges of the Supreme Court on the eve of the inauguration of the Supreme Court in 1950, and the first Attorney-General, M.C. Setalvad. With the coming into force of the Constitution on January 26, 1950, the six judges of the Federal Court became the judges of the newly constituted Supreme Court of India. The inauguration of the Supreme Court was marked by a solemn ceremony, without much fanfare, on January 28, 1950, in the Princes’ Chamber of the Parliament building – the same chamber where the Federal Court had sat for 12 years and where the Supreme Court was to function for eight years more.

Sen says: “The solemnity of the occasion was in evidence when Chief Justice H.J. Kania, with his purple Gujarati headgear, and the judges in their robes took their seats on the bench. Then Mr M.C. Setalvad, who had been appointed Attorney-General, the very same day, rose like a Roman Senator to address the court in a fashion that seemed to resemble the opening of the Senate in bygone days. With a voice that resounded throughout the Chamber, he outlined the extensive powers and the functions that were being entrusted to the court under the Constitution. The Chief Justice responded, expressing the resolve of the court to uphold the rule of law.” The vivid description of the event makes the reader imagine every detail of the historic occasion. Sen’s reference to the hearing of the first landmark case in the Supreme Court, A.K. Gopalan vs State of Madras, is equally fascinating. The question of detention without trial, or preventive detention, was an issue in the case and involved the interpretation of Articles 14, 19, 21 and 22 of the Constitution. Sen says: “The constitutional questions raised were new, both to the judges and the lawyers, and when M.K. Nambyar (father of Senior Advocate of the Supreme Court K.K. Venugopal), appearing for Gopalan, the detenu, went on expounding his arguments, day after day, citing case law from all over the globe with comparisons between the Indian, Irish and American Constitutions, the entire courtroom seemed to be completely spellbound. There were neither interruptions nor questions – the silence in the room broken only by Nambyar’s voice and the rustling of the pages of the Law Reports.”

Four of the judges held the Preventive Detention Act to be valid as conforming to the provisions of Article 22, whereas two others came to the contrary conclusion. Although many of the principles relating to fundamental rights and constitutional construction were not accepted at that time by the court and the challenge to the Preventive Detention Act failed in the A.K. Gopalan case, the legal trend set by the case was noticeable in the subsequent years. While the court would tend in favour of upholding the validity of a preventive detention law, the judges would be readily inclined towards personal liberty to the extent permissible within the four corners of the law, and did so in many cases even by stretching the language of the rule.

Sen writes that each judge, by reason of his background or past experience, had a pattern of thinking of his own – some inclined more towards the interests of the state, including law and order, whilst others favoured protection of the rights of children.

One common feature noticeable among the judges in the early days of the Supreme Court, Sen recalls, was their humility, their patience in hearing counsel in an unhurried manner and their willingness to give themselves sufficient time for reflection and consultation, which alone could find expression in those monumental judgments that have stood the test of time.

According to Sen, the judgment in Kesavananda Bharati vs State of Kerala in 1973 provided the last straw on the camel’s back and prompted the government to strike at the court forthwith. The dominant question in this case was whether Parliament, in exercise of its powers to amend the Constitution, could take away or abridge the fundamental rights embodied in Part III of the Constitution. The court, by a majority of 7:6, held that the power to amend did not include the power to alter the basic structure or framework of the Constitution so as to change its identity.

Chief Justice Sarv Mittra Sikri and his senior-most successor-in-waiting, Justice J.M. Shelat, were part of the majority Bench that delivered the judgment. The powers that be were closely following the proceedings in the Kesavananda Bharati case, and it was even rumoured that a daily report on the case was being called for by the Prime Minister’s Office, Sen recollects. Thus the coterie around Prime Minister Indira Gandhi was not prepared to take the risk, and the announcement came a day before Justice Sikri was due to retire that Justice A.N. Ray would be the Chief Justice of India, overtaking the three senior-most judges, namely, Justices Shelat, K.S. Hegde and A.N. Grover, who soon resigned.

Sen says the camaraderie between the Bench and the Bar seemed to have snapped overnight, never to be restored following the supersession of the three judges and the appointment of Justice Ray as the CJI. Many people blamed Ray, but Sen wonders what he could have done in the matter of his appointment, which was a political game meant to frighten the judges into submission to the executive will.

Sen’s account of the Supreme Court’s role during the Emergency is insightful and offers young readers unfamiliar with the period a shocking revelation about how the Supreme Court (compared with the courageous High Courts) crawled when the executive merely asked it to bend. On Justice Y.V. Chandrachud, who took over as the CJI in the post-Emergency years, Sen writes: “He had the longest tenure of seven-and-a-half years in the history of the court. He was a good Judge, full of humility, courteous and kind, but he was a weak administrator and made no effort to improve the functioning of the court.”

On the functioning of the External Affairs Ministry, Sen says: “Unlike many other countries, foreign policy was not a subject matter of national debate, it was not even formulated by the Cabinet, there were no think tanks in the real sense, it was left purely to Pandit [Jawaharlal] Nehru and his advisers to work out things as they thought fit. That is why one noticed a great deal of contradiction in our policy pronouncement as well as the way they were implemented.”

In the last chapter, “Supreme Court Revisited”, Sen writes about the Supreme Court, which he rejoined in 1988. The then Chief Justice R.S. Pathak, he says, was no longer the person whom he had known so closely for years. “The elevation to the high office had simply turned his head. He seemed to prefer the pomp and glamour of his office and the social life around it, than delivering judgments, which could have given credit to him. He gave the impression of being a ‘Judge’s Judge’, quite contrary to the fact that he was an astute politician who knew which side his bread was buttered,” he writes. However, Sen adds, “Justice Pathak maintained decorum in his court, and no one complained of not getting a fair hearing – something which was getting to be rarer and rarer in our courts – almost on its way to extinction.”

Burdened by petitions

According to Sen, Supreme Court judges in the 1990s and beyond are simply burdened under the load of public interest litigation (PIL) or special leave petitions (SLP), some with no merit at all, allowing little or no time for reflection or leisure. Sen may be correct in this assessment as far as SLPs are concerned but way off the mark in the case of PIL petitions, which form a negligible proportion of the pending cases. Indeed, judges are criticised for dismissing PIL petitions without following the guidelines in letter and spirit.

The author recalls that he had suggested to Indira Gandhi (and canvassed in vain with the then Chief Justice of India) that to reduce the backlog of SLPs, these could be disposed of in the High Courts themselves, with a couple of Supreme Court judges making a circuit every few months and forming a Bench with the Chief Justice or a senior judge of the High Court sitting as an ad hoc judge of the Supreme Court. This pattern was in vogue in Canada and Australia and is followed in Malaysia and Pakistan. Sen had told Indira Gandhi that while the Supreme Court Bar would oppose the proposal, High Court Bars and litigants would welcome it.

Sen’s observations on two key cases during this period will be of interest. In the Indira Gandhi assassination case, he says the irony of Rajiv Gandhi – the son of the victim – as the head of the government advising the President to reject her assassin Kehar Singh’s mercy petition should have been a factor for the court to consider Kehar’s Singh’s legal challenge to the rejection of his mercy petition. He observes, after pointing out this irony, that our courts did not believe in the dictum that justice must not only be done but it must also appear to have been done.

Referring to the Supreme Court-engineered settlement in 1989 in the Bhopal gas disaster case, which was no more than a flea bite as far as Union Carbide was concerned, he recalls the conversation he had had with a lawyer of Carbide in Washington a few months after the settlement. When Sen congratulated the lawyer on his victory, he smiled and said, “We were fortunate to get a good fixer,” and walked away without entering into any further conversation. In the context of the mystery over how the Supreme Court approved this settlement, this conversation is indeed revealing.

The author regrets that no government has been firm enough to pursue seriously the reform of the appointment and transfer of judges through a National Judicial Commission. Each government, he says, vied with the other to pamper judges by enhancing their emoluments and privileges.

Litigation before the Supreme Court has always been a bit of a gamble – its outcome depending on the Bench before which the matter would come up as the judges have their own perspectives, prejudices and preferences, Sen writes. Griffith was concerned both with the personal and corporate bias of the judges. While Sen is embarrassed by the lavish lifestyle of contemporary Indian judges, he appreciates the fact that the court is unpretentious and has made a pronounced shift in favour of the common man in matters of life and liberty. What really bothers him is the absence of an independent Bar, free from the shackles of corporate culture, to withstand the pressures of globalisation.




‘Uncles’ on Bench

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The Supreme Court’s recent strictures against some judges of the Allahabad High Court revive the debate on the uncle judge syndrome.

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.” 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. n 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.