LAW RESOURCE INDIA

‘Uncles’ on Bench

Posted in JUDICIAL REFORMS, JUDICIARY, JUSTICE, SUPREME COURT by NNLRJ INDIA on December 29, 2010
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V. VENKATESAN IN THE FRONTLINE

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.

http://www.frontline.in/stories/20110114280103900.htm

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