On Retired Judges giving Legal Opinions for hefty fees

Wrote a piece on Rainmaker on the PIL filed by Common Cause to bar the practice of retired Judges taking up arbitrations while acting as Chairperson, etc. of different Commissions, and giving legal opinions to be tendered in Court for hefty fees. Check it out

The jurisprudential importance of Naz Foundation

The Delhi High Court's judgment in Naz Foundation has been widely acclaimed for various reasons. I've analyzed its jurisprudential value for constitutional law in NUJS Law Review. Tell me what you think.

The deal about Supreme Court, the Petitioner

The filing of an SLP in the Supreme Court directly against the CIC’s order directing disclosure of information pertaining to appointment of Judges has been described in the print media as “odd” and “sure to raise eyebrows” . The oddity has been sought to be portrayed on two levels – (1) The Delhi High Court has been by-passed even though in the Judges’ assets case, the Registry of the Supreme Court had approached the High Court through a writ petition; and (2) The petitioner before the Supreme Court is the Supreme Court itself.

No wonder then that when the Supreme Court took the SLP on board and issued notice to the Respondent, a news-paper report started the piece with an innocuous sounding “Giving relief to itself...”.

One article even magnanimously quotes the “defence” of Central Public Information Officer of the Supreme Court for this leap in procedure: “this is an issue of far-reaching consequences and substantial questions of law of general public interest which have to be ultimately and conclusively determined by the Supreme Court itself as the top court of the country.”

Is this entire affair really so odd and eyebrow worthy? The law has been very clear and consistent that there is no bar under Article 136 to the Supreme Court exercising jurisdiction in a fitting case even when an alternate remedy exists. Justice Pattanaik succinctly put the legal position in State of U.P. v. Harish Chandra, (1996) 9 SCC 309, in the following words: “Ordinarily where an appeal lies to the Division Bench from the judgment of a Single Judge, the Supreme Court refrains from invoking the power under Article 136 of the Constitution but this is a self-imposed restriction and not a matter ousting the jurisdiction of the Court.” Thus, the Supreme Court has entertained SLPs directly in instances such as when the issue has already been dealt with by the Court [Standard Batteries Ltd. v. CIT, (1995) 211 ITR 444]; when there is a patent error in the impugned order [State of U.P. v. Harish Chandra, (1996) 9 SCC 309]; or even when the Court felt that the petitioner would be prejudiced as the petition had been pending at the Notice stage for two years [Carborundum Universal Ltd. v. CBDT, [1989 Supp (2) SCC 462].

If this is the undisputed legal position since so long, then what is the whole fuss about? We find ourselves in a point of time when the furore over judicial accountability is at its peak. Like always, the furore is a heady mix of genuine concern of responsible citizens on the one hand, and disgruntled litigants / busybodies on the other. But what separates it from other periods in our constitutional history is that the Media is currently at its most powerful in terms of stirring and directing public ire.

It is not really so innocent that the Supreme Court has been portrayed as a person, scheming and master-minding a strategy so as to secure a positive result for “itself”. The “giving relief to itself” type comments cannot but be seen to create such an impression. But is this really the case? Is the analogy of the Supreme Court with an individual litigant really apt?

In my opinion, it is not. There is hardly any dispute that the order passed by the CIC directing disclosure of information pertaining to appointment of Judges raises important issues concerning administration of justice vis-a-vis the rights conferred under the Right to Information Act. No objective mind can say that this is not a debate that requires detailed consideration and careful balancing. Therefore, to ensure that such an important issue is decided by the highest court in the country cannot be considered as not being in the larger public interest.

Why then are we stressing on the Supreme Court by-passing the Delhi High Court, as if it is unhappy that the Single Judge decided against “it” in the Assets Declaration case, and realizes that filing a case before “itself” will get it “relief”. We are because the Media is stressing upon it, cashing in on the current commotion over judicial accountability.

The Supreme Court is the highest Court in our country. It still represents an organ of our State that the normal public has faith in. Judicial corruption is not yet taken for granted unlike political or bureaucratic corruption, and that is reason enough for the Judiciary to try and maintain its independence, while devising ways to rid itself of whatever corruption there is.

Therefore, when an issue of public importance arises, there is no real surprise in the Supreme Court taking it upon itself to settle the same. Those in the legal profession understand this, and perhaps that is why the issue of whether the CPIO of the Supreme Court should have approached the High Court first was not even pressed by the Respondent’s counsel!

Recent Recusals by Judges in Supreme Court

Just argued on Rainmaker that Recusal instances should be categorized into 2, and Judges should be careful to see that "bench-hunting" is not permitted. Check it out.

Let's have some lee-way in Criminal cases

Procedure is well known to be the hand-maiden of justice, and therefore, must be treated as flexible and subservient to the cause. But the little contradictions in innocuous legal procedure often pinch you and splash reality in your face.

Take Criminal and Civil litigation as an example. If I want to file a Civil Suit, I go before a Civil Judge (Junior or Senior Division). I carry the first appeal to a District Judge, and a Second Appeal to the High Court. After losing in 3 courts, I still have the option of coming to the Supreme Court by way of an SLP.

On the other hand, if I am accused of a serious crime like murder, I am tried by a Sessions Judge, Appeal before the High Court, and last chance of SLP before the Supreme Court. And the Supreme Court will mostly say - We are not supposed to go into these questions of fact. Hell, losing a criminal case which takes away my liberty grants me only 2 opportunities to present my case on facts, while in a civil case for claiming Rs. 50,000/- damages, I get three chances before being sent packing summarily by the Supreme Court.

Yes, I know that even in a Regular Second Appeal (RSA), the High Court is only supposed to entertain substantial questions of law. However, in practice we are all aware that non-appreciation of any material fact is a substantial question of law, and High Courts are more liberal in these matters than the Supreme Court. Besides, criminal cases are a lot more dependent upon factual interpretation than Civil ones.

It is literally heart-breaking for the family of a murder accused to come to the Supreme Court and watch his advocate get shunned with a plain "We are not here to appreciate evidence", knowing that their relation is now going to spend his entire life in Jail because the Judge did not even look at the evidence based on some Rule whose logic they cannot understand.

In Gajula Surya Prakasarao v. State of Andhra Pradesh, 2009 (13) SCALE 656, Justice Sudershan Reddy has opened a slight window for the doomed. In a murder case, Justice Reddy analysed the evidence on record and the judgments of the Trial Court and the High Court, and concluded that the lower courts had missed crucial contradictions in the evidence. He justified this in law by stating:

"We are conscious that normally this Court would not substitute its opinion by re-appreciating the evidence with that of concurrent findings of the two courts below. But in the present case, having considered the findings of the courts below, we hold that the courts below found the appellant guilty on the basis of evidence of PWs 3 and 4 upon which no reliance could be placed for the reasons stated herein above. The facts, based on which we have arrived at the conclusion not to rely upon the evidence of PWs 3 and 4, are very much available on record which were altogether ignored by the Courts below. The same has resulted in miscarriage of justice."

The ratio of this case is that even though the Supreme Court would not normally substitute its own opinion on concurrent findings of fact, it will nevertheless interfere when findings of fact result in miscarriage of justice due to the Courts having missed vital facts.

The value of this case is not in this statement of law. This has in fact been the law since long, and the Judge also relied upon an earlier Judgment of the Supreme Court (Zafar v. State of UP). The value of this case is in the fact that to arrive at a conclusion whether the lower courts had missed a vital fact, the Court had to itself critically evaluate the evidence on record and compare it with the judgments of the lower courts. This analysis is crucial, because only if a Judge is willing to read the evidence and see if it has not been properly appreciated, can he justly rule whether the case is one of plain re-appreciation of evidence, or one of miscarriage of Justice.

The difficulty litigants practically face is that a lot of judges even refuse to look at the evidence on the pretext that they are not supposed to re-appreciate evidence. So, let us hope that this judgment can be cited to indicate the ideal approach that should be adopted. After all, the person will spend the rest of his life in Jail (the part that matters, at least) after the order.

Understanding the Advocate-on-Record system

"Unfortunately, many special leave petitions are being filed with Advocates-on-Record being mere name-lenders, without having, or taking, any responsibility for the case. As a result of prevalence of such a practice, in such cases, the Advocates-on-record do not appear when the matters are listed either before the Registrars or before the Chamber Judge or the Court nor do they take any interest or responsibility for processing or conducting the case. They also play no role in preparation of the special leave petitions, nor ensure that the requirements of the Rules are fulfilled and defects are cured. If the role of an advocate-on-record is merely to lend his name for filing cases without being responsible for the conduct of the case, the very purpose of having the system of Advocates-on-record would get defeated.

The question that arises for consideration is whether an Advocate on Record can file appearances as mere name-lender for facilitating filing of petitions by others, without performing any of the functions associated with an Advocate-on-Record."

These are the words of a Bench comprising Justice Raveendran and Justice Singhvi, in Vijay Dhanji Chaudhary v. Suhas Jayant Natawadkar, 2009 (13) SCALE 652. The Hon'ble Bench has issued Notice to the Advocates on Record Association and the Supreme Court Bar Association, to assist them "to find appropriate solutions" and provide "necessary checks and balances".

Are the Judges joking? To overturn the current system is like uprooting a slum in a city - You know that it is against the law, but it affects the livelihood of so many. Of course, the Judges don't need to go back to the public to get votes. But I am sure it hurts a little when noone turns up for your farewell function.

But on a serious note, how can the Supreme Court possibly regulate the current system? You obviously cannot mandate that only Advocates on Record will draft the petitions. Such a Rule would be simply unenforceable, as anyone can draft a case and then have the Advocate on Record sign it under his name. You could perhaps mandate that the Advocate on Record must be present in Court for the hearing. But that is clearly an empty formality. Besides, the system of appearances is itself abused, as appearance slips more often than not contain names of advocates who were not present (The advocate on record's name is automatically entered in the order, even without an appearance slip!).

But I must stop here for a moment, because the more fundamental question that is bothering me is whether the system requires regulation at all? With due respect to the order passed by the Hon'ble Judges, I do not think it does.

The "appropriate solutions" to regulate the current practice can only be found if we first understand the rationale behind the Advocate-on-Record system. There is no guidance, either in any statute, or in the Supreme Court Rules, or even in the order referred to here, as to what purpose the Advocate-on-Record system serves.

The only thing that I can think of is that the Supreme Court entertains petitions from all over the country. Since any advocate registered with any Bar Council of a State can appear and plead before the Supreme Court, it is not possible nor desirable to confine appearance only to those from Delhi. However, at the same time, it would be virtually impossible for the Court staff to serve Notices, etc. on advocates in far flung places all across the Country. Therefore, having a system of Advocates-on-Record (The Rules require that an Advocate on Record must have its office within a 5 KM radius of the Supreme Court) serves a practical purpose.

Apart from this, I cannot think of anything else. If that is so, let the practical system remain so, and let's not give it a theoretical justification that the Order appears to do. The occasion for the Supreme Court to pass such an order arose because in that case, an SLP was dismissed for non-prosecution. In the application for restoration, the explanation tendered was that the Advocate on Record had informed the Advocate who engaged him about the listing of the case. But, the Advocate did not enter it in his diary by mistake, and therefore, he could not appear.

This explanation is too truthful to be tendered in an application. It reminds me of the time when we sought to explain walking out of class in College on the ground that Tendulkar had just taken 2 Australian wickets (during the 2003 test series), and we had to go see it. The only purpose such an explanation serves is that it provides a light moment to the Judges, in the hope that they excuse you in their laughter.

This routinely happens in Court, and Judges usually laugh it off. On the one off chance that they do not, it raises systemic issues that invite serious debate. But is this an issue that requires serious debate? I do not think so. The Advocate on Record system has its practical utility, and that is where it stops. Therefore, you cannot do away with it, nor can you really raise it to a theoretical pedestal where it does not belong, because the consequences of that will be a complete break-down of the system. But the real point is, was the evil sought to be addressed so bad? So what if the Lawyer did not appear. The Judges could very well have simply dismissed the Application after rejecting the explanation as inexcusable.

P.S. - In the interest of objectivity, I must disclose that I regularly draft SLPs and file them through an Advocate on Record who merely lends his name to it. His clerks, though, do put in substantial work on the files to ensure compliance with the Rules!

Touching the "Untouchables"

The reservation issue has been off the burner for a while now, and the treatment meted out to Arjun Singh by the UPA government suggests things will stay that way for some time. This can be seen as a reason to keep the issue aside as it is not "sensational", or can be seen as a time to reflect on the issue as objectively as possible, when passions are not running high.

This post, though, wants to go a few step backwards from the last instance of introduction of reservations for OBCs in higher educational institutions. More particularly, to 8th May, 1985, when 5 Judges of the Supreme Court delivered an opinion in the case of K.C. Vasanth Kumar v. State of Karnataka, 1985 (Supp) SCC 714.

The unique feature of the case was that it did not arise in the midst of a factual dispute, but was merely filed to obtain the Court's opinion on the issue of reservations, which would serve as a guide for the Commission that the State of Karnataka proposed to appoint for examining the question of affording better educational and employment opportunities to SCs / STs etc.

Justice Chandrachud, in his opinion, that reservation in favour of SCs and STs must continue as at present (without a creamy layer test) for a further period not exceeding fifteen years. In his opinion, another fifteen years would make it 50 years since the advent of the Constitution, a period long enough for the upper crust of the oppressed classes to overcome the baneful effects of social oppression, etc.

Yet, this opinion got lost somewhere with the efflux of time. In the year 2000, the government of Andhra Pradesh passed the Andhra Pradesh Schedule Castes (Rationalisation of Reservations) Act, 2000, which sought to draw a sub-classification within the list of Schedule castes prepared under Article 341(1) of the Constitution by creating 4 groups, to whom the benefit of reservation would be differently distributed based on their backwardness.

This Act was struck down in the case of E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394, where a 5 Judge Constitution Bench held that the list under Article 341(1) is a homogeneous list that cannot be sub-classified. It also held that a State has no legislative competence to effect such a classification. Therefore, if ever a creamy layer test is to be introduced for SCs / STs, the same has to be introduced by Parliament by way of a law. Justice SB Sinha had also given a concurring opinion in this case to the same effect.

Needless to say, caste politics will ensure that such a law will never come to be passed in Parliament.

Since then, the SCs / STs having received a Constitutional sanction have remained untouched, with every lawyer appearing for the anti-reservationists in the recent Reservations case [Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1] clarifying to the Court that their arguments regarding illegality of no creamy layer having been provided for is confined only to reservation for OBCs.

It is in fact interesting to note that Article 334 of the Consitution currently provides that reservation of seats for SCs and STs in the Lok Sabha and the legislative assemblies of states shall cease after 60 years. The provision originally read 40 years, but on 20.12.1989, "50" was substituted in place of "40", and on 25.1.2000, "60" was substituted in place of "50"! If i were a betting man, I know one constitutional amendment I would be betting on for the year 2010.

Has such a blatant desecration of a constitutional provision ever gone so unnoticed in our constitutional history?

All this has truly made the SCs and STs the "untouchables" of our constitution, ones who fall beyond the scope of Article 17 of the constitution. But one recent observation by Justice SB Sinha (!) may become the foundation for a future assault on this untouchability.

In State of Kerala v. People's Union for Civil Liberties, MANU/SC/1302/2009, Justice Sinha was discussing the constitutional validity of an amendment in a Kerala Act prohibiting sale of tribal lands to outsiders, discussed the issue whether Schedule Tribes have a right under Article 21 to be rehabilitated in their own habitat. The issue arose because the impugned amendment took away the provision declaring transfer of land to an outsider void to the extent it applied to a small tract of land upto 2 hectares.

Justice Sinha, while relying on observations in the Narmada Bachao Andolan case, and certain international conventions, held that the removal of a population by way of an exceptional measure is not ruled out, subject to them being provided alternate land of at least the same quality.

While holding this, he also discussed the oft ignored aspect of this issue:

"Indisputably, the question of restoration of land should be considered having regard to their exploitation and rendering them homeless from the touchstone of Article 46 of the Constitution of India. For the aforementioned purpose, however, it may be of some interest to consider that the insistence of autonomy and the view of a section of people that tribals should be allowed to remain within their own habitat and not be allowed to mix with the outside world would depend upon the type of Scheduled Tribe category in question. Some of them are still living in jungle and are dependant on the products thereof. Some of them, on the other hand, have become a part of the mainstream. The difference between Scheduled Tribes of North-East and in some cases the Islands of Andaman and Nicobar, on the one hand, and of those who are on the highlands and plains of the Southern regions must be borne in mind."

Though delivered in a completely different context, the Judgment recognizes a difference in between different kinds of STs, something that might go against the essence of E.V. Chinnaiah. It is also a significant judgment for taking a more realistic approach towards the current social status of STs.

Let's hope this observation does not remain confined to its "factual matrix", and becomes an unintended foundation for a more concerted effort at abolition of "untouchability".

Adios Mr. Sinha

Justice SB Sinha sat on the Supreme Court bench for the last time today. Considering that two Judges have already retired this year before him (LS Panta and Arijit Pasayat), and one more is due to follow (BN Agarwal), it does not appear to be a significant enough occassion to merit a special mention.

But the fact of the matter is that it does. Most around the Supreme Court knew Justice Sinha as the quintessential book-worm, the man who had no life outside his judgments. And the judgments, ah those Judgments, did not let that image down. You just have to pick up any volume of a SCALE or any other journal of the last couple of years to note his overwhelming presence in those pages. Actually, why bother with a subscriber's copy of a journal, you can go through the posts on this blog to realize what I mean.

Justice Sinha gave us the law - neatly compiled, condensed and presented with illuminating para headings for the impatient, all while incidentally deciding the factual dispute at hand. These were the kind of judgments we fashionably bitched about in law school as being the malady of the Indian Judiciary, but thanked god for them when last last date for project submission drew close.

The judgments are not the reason behind this post though. In a court that is ridiculously impatient with all lawyers except a chosen few, and ridiculously over-indulgent with those few, Justice Sinha (as he then was) was one of the few who heard those who spoke sense with patience, and did not cringe at issuing notice and granting interim relief while exercising "exceptional" jurisdiction under Article 136. He did not have mathematical formulae for dismissing SLPs in Anticipatory Bail or Quashing or NDPS or other such typically frowned upon matters.

It is often said that the Supreme Court of India is actually the Supreme Courts of India, with the 12 benches offering a wide variety of approaches towards similar matters. As lawyers we tend to ascribe the dismissal of a good case to the particular Judge it came before and rush for the next one in a business-as-usual manner, but for the litigant it presents a sad end to a long journey, that cannot easily be digested as being attributable to the idiosyncracies of a particular person.

Justice Sinha did not leave the lawyer, at least me, with that feeling at the end of a dismissal. And that is why he will be missed.

Tackling Judicial Corruption

Just read a wonderful true story. N. Kannadasan was an Advocate practicing in the Madras High Court. In November, 2003, he was elevated to the High Court Bench as an Additional Judge. But after two years of having been an Additional Judge, he was not appointed as a permanent Judge due to some doubts over his integrity.

He resumed practice in the Madras High Court, and soon became an Additional Advocate General. In July 2007, the Full Court of the Madras High Court resolved that his name may be included as one of the Retired Judges of the Court. In June, 2008, he came to be appointed as President of the State Consumer Disputes Redressal Forum in terms of Section 16 of the Consumer Protection Act. The Act prescribes a requirement that the President must be or have been a Judge of the High Court.

Writ Petitions were filed, praying for a writ of quo warranto to scuttle Kannadasan's appointment as President, on the ground that his integrity had already been established to be under doubt when he had not been appointed as Permanent Judge, and on the ground that an Additional Judge could not be termed as a "Judge" for the purposes of Section 16. The matter reached the Supreme Court, and in a landmark judgment (N. Kannadasan v. Ajoy Khose, 2009 (8) SCALE 351, Justice SB Sinha held that even though an Additional Judge can be considered as a Judge for the purpose of Section 16, the term "Judge" carries with it an implicit requirement that the person is above board in terms of his qualification, merit and integrity. Therefore, since Mr. Kannadasan's term as Additional Judge had ended in a tainted fashion, his case could not fall within the words "has been a Judge".

We are all tired of the immunity Judges enjoy in the name of maintaining the "Independence" of the Judiciary. Time and again we have seen blatant instances of Judicial Corruption ending with In-House Enquiries that recommend "transfer" of the tainted Judge to another Court. However, when the Print and Electronic Media sensationalizes these issues, the need to protect Judges from malicious attacks from disgruntled litigants, interested parties, etc. comes into acute focus as well.

At many a conversation over dinner, I have heard the defence that Judges cannot defend themselves in any forum, and therefore, the need to maintain the dignity of the Judiciary necessitates that we err on the conservative side. It has often reminded me of that famous premiss on which our entire Criminal Jurisprudence stands: It is okay for 99 guilty persons to be acquitted, if it prevents one innocent person from being convicted.

Faced with this conundrum, this Judgment presented an interesting solution. A writ of quo warranto, can be used to question the authority of a person to hold a high public office inter alia in the event that his appointment is violative of any statutory provision. In this case, the requirement of integrity being above board was read into the term "Judge". If quo warranto can be used to challenge someone's appointment, could it not be used to challenge someone's continued occupation of the Post? That would ensure that allegations levelled against a Judge are tested in a Court of law, and the dignity of the Institution itself would not be jeopardized.

The only difficulty is that Writ courts do not entertain disputed questions of fact; but given the alternatives of (a) placing Judges at the mercy of the Police or similar investigating agency, and (b) practically giving Judges complete immunity in order to maintain their independence and dignity, it would not be completely without precedent if the Writ Court enquired into the allegations either on its own, or through a Commission. Of course, the threat of being imposed with exemplary costs would ensure that someone would not step into the Litigation arena lightly.

Is Delhi the Gay capital of India

The news channels have been telling us that it is now for the Executive to fall in line with the Delhi High Court ruling on Section 377 IPC, to make the law applicable all over the Country. Even Mr. Soli Sorabjee said something to the same effect. But Justice SB Sinha, in Kusum Ingots & Alloys Ltd. V. Union of India, (2004) 6 SCC 254 told me:

"An order passed on a writ petition questioning the constitutionality of a parliamentary Act, whether interim or final keeping in view the provisions contained in clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act." (Para 22)

I don't know who to believe.