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The question of credibility


Tuesday 19 August 2003, by VENKATESAN*V.

Article paru dans Frontline, Volume 20 - Issue 17, August 16 - 29, 2003.

With the Bar Council of India revealing the fact that a substantial number of High Court Judges have close relatives practising in their courts in violation of BCI rules, the issue of credibility of the higher judiciary comes into sharp focus.

THE question of credibility of the higher judiciary has once again come into focus with a report suggesting that a substantial number of High Court Judges and the machinery appointing them have disregarded the requirement that an advocate shall 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 Bar Council of India (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.

As in any profession, it is common to find several members of a family pursuing careers in law. However, when Judges and their relatives find themselves in the same court litigants are bound to have misgivings about the fairness of the judgments delivered. The BCI, which has disciplinary control over advocates, introduced Rule 6 with the hope that the Judges themselves would decline to be appointed in those courts where their relatives practised. The BCI knew that it would be difficult to ask advocates who have established good practice in a court to shift to another court just because their relatives had been appointed Judges there. That was why the BCI was reluctant to enforce the rule.

It can be argued - as sections of the Bar and the Bench have done - that the rule cannot be invoked against advocates as long as they do not argue cases before the Judged who are related to them. But the BCI favours a liberal interpretation of the rule in the face of allegations in the Bar that some Judges favour each other indirectly by obliging each other’s advocate-kin.

Rule 6 is in consonance with the Restatement of Values of Judicial Life, adopted by the Supreme Court in 1997. Under Code 3 of these Values, Judges should eschew close association with individual members of the Bar, particularly those who practise in the same court. A Judge, Code 4 says, should not permit any member of his immediate family, 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. Code 5 requires that no member of a Judge’s family, who is a member of the Bar, shall be permitted to use the residence in which the Judge actually resides or other facilities for professional work. These codes apparently make it difficult for a Judge and his next of kin to belong to the same court.

What is shocking is the sheer number of Judges and advocates who are their relatives working in the same courts, across the country. On July 28, the BCI forwarded to the Union Law Ministry a list of 131 Judges (out of a total 499) in 21 High Courts and 180 advocates with their names and nature of relationships. BCI Vice-Chairman Adish C. Aggarwala released the list, compiled on the basis of inputs supplied by the State Bar Councils, to the media. The BCI appealed to the Centre and the Supreme Court to transfer such Judges to other States. It has threatened to take disciplinary action against the advocates concerned, and suspend their licences if the Centre and the Supreme Court did not respond forthwith.

Union Law Minister Arun Jaitley, who placed the ball in the court of the Chief Justice of India, has said that the situation strengthened the government’s case for the establishment of a National Judicial Commission (NJC). The Constitution (98th Amendment) Bill, which seeks to constitute such a commission, has been referred to a Parliamentary Standing Committee(Frontline, June 6). Contrary to Jaitley’s claims, the Bill has no specific provision to deal with this blatant negation of judicial ethics by members of the judiciary.

AT a national convention on judicial corruption and judicial accountability held in New Delhi on August 2, the Bill came in for considerable criticism for its hollowness. The convention, sponsored by more than 20 organisations, including the Committee on Judicial Accountability, the All India Lawyers Union and many leading civil rights groups, resolved that the Bill was completely inadequate and wholly unacceptable, as the proposed NJC - a part-time body - was not independent of the government and the judiciary and lacked the power to remove Judges. The convention, therefore, recommended the creation of a full-time, high-powered and independent NJC with the power to appoint and remove Judges.

The resolution added: "The proposed NJC should have an independent investigative machinery under its control through which it can get allegations and charges against Judges investigated. Its functioning must be transparent, and the identities of proposed appointees should be made known to the public well before they are actually appointed, so that any member of the public having any relevant information could intimate the NJC." The convention also suggested that the NJC, so created, should only be empowered to choose Judges for their post-retirement assignments.

The convention expressed concern at the alarming levels to which corruption has grown over the years in the higher judiciary. One reason for this, it pointed out, was the flawed and non-transparent system of appointment of Judges.

Justice P.B. Sawant, former Judge of the Supreme Court and former Chairperson of the Press Council of India, who inaugurated the convention, deplored the fact that persons known for their lack of integrity had been appointed to the High Courts. "Caste, religion and political considerations have played a role; the device is to keep a seat in the Supreme Court vacant as a carrot hanging before the Chief Justice of the High Court, to secure the appointment of one’s nominees on the High Court," he said. He revealed that there was a "give and take" between members of the judicial collegium, which selected the Judges since 1993, when the Supreme Court appropriated to itself the primacy (in relation to the executive) in the appointment process through its judgment in the Second Judges Case.

Senior advocate Anil Divan suggested that the Code of Conduct for Judges should be given statutory status immediately by Parliament as a Supreme Court Bench (Justices S. Rajendra Babu and G.P. Mathur), in a judgment given on May 9, had admitted that there was no adequate machinery to enforce the code of conduct. The Bench had dismissed the petition filed by senior advocate Indira Jaising to make public the in-house inquiry committee’s report on the "Mysore incident" involving three sitting Judges of the Karnataka High Court, on the grounds that the Chief Justice of India had set up the committee only under moral authority and the report was confidential. The Bench overlooked the fact that the in-house inquiry committee had its legal basis in the Supreme Court judgment in C. Ravichandran Iyer vs Justice A.M.Bhattacharjee and Others delivered in 1995. In the absence of an effective and transparent in-house procedure to discipline Judges, the credibility of the judiciary will continue to be questioned.


Pic1:S. THANTHONI : As many as 131 Judges (out of a total of 499) in 21 High Courts have 180 close relatives practising as advocates in their respective courts, according to the Bar Council of India.

Pic2:K. GAJENDRAN : Justice P.B. Sawant.

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