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
Article by K. CHANDRU | The Hindu
SEAT OF JUSTICE: 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.
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.)
Correction
>>There was a reference to Justice A.S. Bopanna in the Comment page article – “Father, son and the holy Court” (Oct. 24, 2014). It should have been Justice P.P. Bopanna.
FALL AND FALL OF A PRE-EMINENT ADVOCATE
Star Of Mysore On Line, Thursday October 30, 2014
Justice K. Chandru dissects conduct of Fali S. Nariman
In 2012, I read a highly readable book “Before Memory Fades” by Fali S. Nariman, a much admired and respected senior advocate of the Supreme Court of India. It is an autobiography written differently from the conventional style, a kind of recall of memories from the early childhood to the present, hence less of a continuous narrative. But, all the same, a MUST read for lawyers and the law-makers. I was once again made aware of the dangers of oppressive laws and those sadists who enforce them with the pernicious spirit of ‘more loyal than the king’ as narrated, for example, in page-166 of the book in connection with the Emergency of 25 June 1975.
If Nani Palkhivala returned Indira Gandhi’s brief to fight her election case in the Supreme Court following declaration of Emergency, Fali Nariman too had resigned as the Additional Solicitor General in protest of the Emergency. The stock of both these giants of the Bar went up among the legal fraternity as also among those who valued freedom, ethics and honesty in life.
From then on, they became the icons among lawyers and people, high and low. People began to look upon them for guidance when political and social issues were discussed, specially in matters concerning legal profession, law courts, appointment of judges, conduct of judges etc.
Having studied law and then worked in a law office of a senior Advocate Rego for two years, I gave up to become a pen-pusher in a far-away place from home. However, matters related to law, lawyers, law courts and judges continued to interest me. Hence my interest in Fali S. Nariman. And that’s why I bought his book on 5.7.2012.
At the beginning of the chapter 2 of the book he makes a curious, if not profound, observation about life: “Life is full of surprises. Whether you do or do not believe in destiny or in Providence or in God, be sure that — out of the blue — some stranger, some unknown person, at one time or another, will reach out and give you a helping hand as you journey along on the rough roads of life. I had no ‘Godfathers’ in Bombay. But God helped.”
Lucky Nariman. God helped him. But in the case of many, God is blindfolded like the Goddess of Justice as depicted in Indian law courts. And the one who believes God helps him always, should not venture to do something which may not please his God. And that’s about what I am presently engaged to reveal here. But before that a parable from the Buddha’s life by way of a reason as to why I pick on Fali S. Nariman.
Lord Buddha, as a mendicant, was walking through a forest to another village. On the way he felt thirsty and when he saw a pond with lotus flowers in it, he decided to quench his thirst. After drinking the water he stretched his hand to pluck a lotus from the pond. At that very moment an aerial voice from the Vanadevata, deity of the forest, forbid Buddha from plucking the flower, warning if he did, he would be dead. Buddha obeyed, but he saw a group of tribals going to the same pond, drinking its water and plundering the flowers. However, there was no warning of imminent death from the Vanadevata and surprisingly no one died after plucking lotus flowers and then discarding them a while later.
Buddha was curious and asked the disembodied Vanadevata why she was discriminating between him and the tribals. The aerial voice said:
‘You are the learned one. You are the great master. You are kind and compassionate. You are the enlightened. You are the Buddha. You must not do what others do out of ignorance.’
The great master got the message, felt humbled and continued his journey wiser than he was…
Now let me come to Fali S. Nariman who is like the Buddha in the legal fraternity. At least till recently! And see what he had done on 17.10.14 at the Supreme Court of India where his most intelligent and a fully initiated Parsi Priest of a beloved son, as I learn from the book, is a judge appointed in July 2014. And Fali S. Nariman is happily appearing in his son’s court, Supreme Court of India, without any sense of remorse or respect for “Rule 6 of the norms established by the Bar Council of India” which says that no lawyer can practice in a court where any of his relatives functions as a Judge. Anticipating the rigmarole that may be practiced by the ambitious, intelligent lawyers, the rule goes on to list such relatives which includes son also as in the case of Fali S. Nariman whose son Rohinton Fali Nariman is a judge.
Again father Nariman is lucky as he admits in his autobiography. The Advocates Act 1961 which provided for the restriction under Rule 6 of the Act, however, failed either by design or default (I do not know which) to define the word ‘court’. So every time a lawyer like Fali S. Nariman appeared in the Supreme Court, for example, the interpretation of the word court is taken to mean the Court Hall where his son does not preside. The word court is not taken to mean all the courts, like for example Madras High Court, Bombay High Court or Supreme Court.
It is, therefore, not surprising when Fali S. Nariman dismissed the complaint against him saying ‘there is no legal bar for such appearance’ and added in great rhetoric: ‘everyone is equal before the law.’ It is obvious he was interpreting the word court under Rule 6 of the Act according to his convenience while the Judges too did not raise the issue when Jayalalithaa’s bail application was heard as I learn. Puzzling, when we find that as early as in 1980s a Karnataka High Court Judge P.P. Bopanna, hailing from the land of Field Marshal K.M. Cariappa and Gen. K.S. Thimmaya suo-motto invoked the Rule 6 and refused to allow the wife of a sitting judge to appear before any judge in the Karnataka High Court. Hellaluia !
Subsequently the matter was raised in the Supreme Court but as the luck of the lawyers would have it, including that of Fali S. Nariman, the matter became infructuous. Wonder, even so, could not the Supreme Court suo-motto pursue the matter and decide the sticky issue by defining the word court under Rule 6 of the Act? That needed Brave Hearts. It did not happen here, but it happened in US Supreme Court.
Much of what I have mentioned about the Act and the related matters are taken from a brilliant and timely article written in ‘The Hindu’ dated Oct. 24, 2014 by an intellectually honest retired Judge of the Madras High Court, Justice K. Chandru. Giving examples of some Indian Judges and lawyers who followed the Rule 6 of the Act in its spirit, not venturing to interpret its letter like Fali S. Nariman, Justice K. Chandru writes:
“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.
In another example when Justice P. Balakrishna Iyer became a judge of the Madras High Court, his son advocate P.B. Krishnamurthy shifted his practice to another State. He did not look into the nebulous Rule 6 of the Advocates Act 1961. Small wonder Fali S. Nariman could not see these shining examples from the legal fraternity in regard to professional ethics.
I felt sad to read the penultimate para of Justice K. Chandru’s article where he says how Justice R.M. Lodha, the immediate past Chief Justice of India nuanced his way without solving this problem, though opportunity presented itself before him, by dismissing a Public Interest Litigation (PIL) filed by Advocate M.L. Sharma seeking to ban the relatives of Judges practicing in the same COURTS, not COURT. Again Fali S. Nariman was lucky and, of course, J. Jayalalithaa too. Birds of the lucky feather flock together!!
Indeed, as Fali S. Nariman says in his book which I quoted early in this article, ‘Life is full of surprises.’ As for Fali S. Nariman ‘Life is full of pleasant surprises.’ But what about the fate of the litigants looking for justice? A wag told me that in law courts we get decisions and orders from the Judges as per their interpretation of the law and NOT justice.
Tail-piece: If a prize is to be given for the best headline for an article, I would give it to whoever gave the headline for Justice K. Chandru’s article titled “Father, son and the holy court.” Here the father is Fali S. Nariman, son is Rohinton F. Nariman and the holy court is Supreme Court. Apparently it was inspired by the Christian prayer invoking the ‘Father, son and the holy ghost’ — Supreme God (Jehova), Jesus Christ and the spirit that incarnated Jesus Christ — the Trinity.
I was much impressed by the timely and masterly take on the inappropriateness of Fali S. Nariman appearing in cases before the Supreme Court by Justice K. Chandru.
My salutes to Justice Chandru.
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