"Something is rotten in the State of Denmark" said Shakespeare in Hamlet, and it can similarly be said that something is rotten in the Allahabad High Court. On November 26, 2010, the day which is celebrated as "Law Day" across the nation, these comments were made by a Two-Judge Bench of the Supreme Court comprising Justices Markandey Katju and Gyan Sudha Misra while dismissing a Special Leave Petition filed against an order of Allahabad High Court. The Bench took the opportunity to come out harshly over a prevailing menace wherein kith and kin of the serving judges practice in that very Court against principles of ethics and propriety. The context in the Apex Court's ruling was that several judges of the Allahabad High Court suffer from such kind of syndrome which refers to judges passing favourable orders for parties represented by lawyers related or known to them.
The Bench during the course of judgment also went to the extent of saying that a lot of complaints are coming against certain Judges of Allahabad High Court relating to their integrity. "The wards or other relatives of the Judge(s) who used to practice in the same court become multi-millionaires, have huge bank balances, luxurious cars, huge houses and are enjoying a luxurious life. The High Court really needs some house cleaning (both Allahabad and Lucknow Bench) and we request the Chief Justice to do the needful including recommending transfers of the incorrigibles," said the Bench.
After there was much media hype of the same, the Allahabad High Court at its Full Court meet took serious exception to such observations and consequently it decided to file an application in the Apex Court through its Registry praying for expunging such objectionable remarks. On December 10, the same Bench while refusing to do so, however, added that there are "Excellent Judges" too in the same court who are working hard and doing their duty honestly. The Bench clarified that it had not painted everyone with same brush. Further, it is time for introspection rather than reaction.
Pertinent to mention that one of the members in the Bench, Justice Katju, has spent a whopping innings of his legal as well as judicial career in Allahabad High Court. After starting his practicing career there, he was elevated as Judge of the same High Court in 1991 and remained there till November, 2004. He himself asserts that association of his family with this High Court dates back to over a century. Hence, he seems to be well conversant with the state-of-affairs prevailing there.
The phrase of "'Uncle Judges" was referred prominently in the 230 th report of Law Commission of India submitted in August 2009. "Often we hear complaints about uncle judges. As a matter of practice, a person who has worked as a district judge or has practiced as a lawyer in a High Court for many years is appointed as a judge, he is bound to have colleagues and kith-kin there. Even in government services, particularly, Class II and upwards, officers are not given postings in their home districts. In the same way, judges whose kith and kin are practicing in a High Court should not be posted there. This will eliminate uncle judges," the report stated. Sadly, as is the practice, neither serious debate was held nor any due consideration was given to the recommendations of the Commission.
Noteworthy that Rule 6 of the Bar Council of India Rules, 1975 stipulate that "An advocate shall not enter appearance, act, plead or practice in any way before a Court, Tribunal or Authority mentioned in section 30 of the Advocates' Act, if the sole or any member thereof is related to the advocate as father, grandfather, son, grand-son, 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."
Though the above rule very much prohibits those advocates who are wards or kith-kin of serving judges from appearing before them but the point is that such advocates who are relatives of Judges are normally accused of getting favours from other companion judges in the same court. Usually there is quid pro quo meaning wards or kith-kin of a serving Judge appear before other brother Judge and get instant relief(s) and in return, the relatives of latter get the same relief from court of former Judge.
The former CJI, Justice KG Balakrishanan in September, 2008 devised and sent a new format to the Chief Justices of the High Courts for obtaining information from the Advocates and Judicial Officers recommended for elevation to the High Courts so as to ensure appointment of only untainted and deserving candidates. The additional information which is now sought includes whether the spouse or any blood relation of any candidate is practicing in the High Court or any Court subordinate to it or is working with a law firm having office within the jurisdiction of the concerned High Court. If yes, whether the same practicing spouse or other relative is living with the candidate so recommended for elevation to Bench and if so, whether the recommended candidate would consent for transfer to another High Court for a cooling period of two years or till his spouse or relative is practicing there.
Undoubtedly, the aforesaid initiative is best suited if implemented in letter and spirit. Moreover, as the Supreme Court Collegium in October, 2010 decided to continue with more than two decades policy providing that the sitting Chief Justice of any High Court must be from some other State, it is high time for kickstarting a serious debate by involving all stakeholders to extend such practice to cover every Judge in a High Court. There should not be different yardstick for Chief Justice and other Judges.
The Judicial Standards and Accountability Bill, 2010 tabled in Lok Sabha during December last inter alia , envisages setting up of a five-member National Judicial Oversight Committee (NJOC) headed by retired Chief Justice of India (CJI) for receiving complaints against errant judges. The NJOC would refer the same to "Complaints Scrutiny Panel" to be constituted both in Apex Court and High Courts. After considering the report of concerned Panel, the NJOC would constitute appropriate "Investigation Committee(s)" to inquire into the matter in detail. In case of allegations being proved, the NJOC would have power to issue advisories or warnings to an indicted judge and in case where charges merit removal, it would request him/her to resign voluntarily and on refusal refer the matter to President for initiating impeachment process. Though the proposed mechanism seems quite structural, one wonders if without conferment of any constitutional sanctity, the orders of NJOC even on inflicting minor penalties would pass test of judicial scrutiny ?
Moreover, any reforms in mechanism of Judicial Disciplining and Accountability must be coupled with resurrection of existing "Collegium System" of appointing higher judges as the same has over the years drawn huge flak from jurists and other intelligentsia of society. The Law Commission in its 214 th report (November 2008) also recommended the overhauling of current system of appointing members of higher judiciary.
At the outset, it can be concluded that mere effecting transfer of a Judge from his parent High Court i.e., from the State where he/she hails from and as such used to either practice there or was a District Judge subordinate to such court preceding his elevation, is not by itself going to stem the rot although the same might check apprehensions of favouritism and nepotism to a considerable extent. Moreover, if transfer can be the only remedy for taming menace of "Uncle Judges" where would the judges of Supreme Court be sent if their kith and kin are practicing in Apex Court? Unless a comprehensive policy is framed providing for posting all Judges in a High Court from outside that State, selective transfers of those Judges whose relatives are practicing in those courts is not a fair and wise idea.
The honest and sincere adoption of universally adopted values of judicial life by every member of judiciary can only guarantee wiping out the syndrome of "Uncle Judges". The Judges ought to be made of sterner stuff. In a court, what matters is the cause and not the counsel. What matters is the case and not the face. Everyone must keep in mind that the Justitia (Lady Justice) is wearing a blindfold. The blindfold represents objectivity, in that justice is (or should be) meted out objectively, without fear or favour, regardless of identity, money, power, or weakness.