- Seema Sapra
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 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.”
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 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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ARTICLE 2 0 PRINT A A A
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
Shares
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.
…
https://www.tribuneindia.com/news/sunday-special/people/forum-shoppers-pettifoggers--uncle-judges/499893.html
|
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
|
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/
|
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.)
|
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
|
Shot
at list on judicial clans
Chief
Justice seeks details from judges
By
R. Balaji
Published
6.10.16
AddThis
Sharing Buttons
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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