Friday, November 20, 2009

Reflections on commentary on the Recusal issue

Commentators on the previous post have drawn attention to the fact that more commentary on the recusal issue is now available. Since the last post was written, Soli Sorabjee and Rohit Sharma have also weighed in on the ongoing discussion. The former's view seems quite close to that offered by TR Andhyarujina. Although there are some differences, I see a certain consistency in the opinions offered by practicising lawyers (here I include those offered by Rajeev Dhavan and PP Rao) on this issue. As Nick Robinson puts in it in the comments section of the previous post:

" Is over-zealous recusal really a problem in India? It seems the opposite is true. So why this sudden rush to defend, particularly by the bar?"

Practicing lawyers in general seem to be quite sympathetic to the 'plight' of the judges who've been 'wrestling' with the ethical issues involved in these recent recusal cases in India. I wonder if this is because of a professional 'blind spot' that they, together with the judges involved in these cases, might be collectively suffering from? Notice that several practicing lawyers seem to think that if the judge discloses his potential conflict to the 'parties' in open court, and the lawyers (speaking on behalf of the 'parties' presumably, but perhaps speaking in their own capacities as well) state that they have no objection, no other concerns are raised, and the judge can go ahead with the hearing of the case. To those who are not lawyers, and to those of us who don't practice in courts and are hence not part of this cozy - and much glorified - 'bar-bench' dynamic, this begs the larger question of the public interest that may be compromised when judges proceed to so hear cases after getting the approval of the lawyers in the case.

Even Dhavan, who recognises the problems with the scenario set out above, does not seem averse to giving lawyers a final say on the integrity of a judge. Although he argues that the cases involving Justice Kapadia should have been treated as situations of automatic recusal, he also says this in his column:

"An irresponsible controversy was raised about Justice Kapadia participating in the controversial Vedanta case where he was a member of Forest Bench which allowed the mining of bauxite in Orissa in a eco- sensitive tribal area subject to various concessions and conditions. I say the controversy was irresponsible because I must candidly state, that Justice Kapadia is an upright judge whose integrity is unquestionable." (Here, Dhavan seems to be taking a dig at Prashant Bhushan who first raised the issue; Andhyarujina too seems to disapprove of Bhushan's actions, referring to him rather quaintly as "a leading vigilante lawyer").

Why should the general public have to take Dhavan's word on Justice Kapadia's integrity? If, as he argues, this was a case of automatic recusal, then the judge should have recused himself - end of discussion. Why must we rely upon, to borrow Sorabjee's words, "gratuitous advice of distinguished senior counsel"? (Sorabjee, of course, was alluding to the fact that in the latest episode of this now bizarre and continuing saga, Justice Kapadia deferred to Fali Nariman's counsel to recuse himself from an ongoing case).

Almost every commentator focuses on the practical difficulties that apparently will flood us if the general public were to ask that judges not simply seek a 'waiver' from counsel who appear before them in cases where potential conflicts of interest may arise, and that they subject themselves to higher standards that the high constitutional offices they occupy demand. In my view, these practical difficulties (and some of the ones identified are real concerns) can be avoided by some minor systemic changes. In any case, the cost of continuing with the status quo will be very high, especially if one were to consider the historical moment our judiciary finds itself in, and the deep crisis of legitimacy and credibility it currently suffers from.

Several of the commentators who have weighed in on this issue rely upon practices and cases from the UK and the US. We must remember that those judiciaries have not suffered from a crisis of credibility for a while (in the US, the last major crisis regarding possible financial corruption in the Supreme Court concerning Justice Abe Fortas occured in 1969). In India, the setting is entirely different. We are yet to resolve the deeply troubling issues involving former Chief Justice YK Sabharwal, Justice Soumitra Sen and Justice Dinakaran (to name only the most prominent of the several crises that our judicary has undergone in the recent two years). The Supreme Court's stance that it is not bound by the Right to Information Act gives further impetus to the growing impression that our judges seem to think that they are somehow above norms that apply to ordinary citizens, government employees and other actors.

This series of events in India must be viewed against this sobering backdrop. If Indian judges hide behind 'bar-bench' conventions, instead of taking accountability for their own actions, they will not help their already diminshed standing among the general public.

6 comments:

Dilip Rao said...

Good post. Just a point of fact: The US Supreme Court has been very recently concerned about recusal and the possibility of judicial corruption though in a slightly different context of whether a State Supreme Court judge can hear a case involving an individual who has made a big contribution to his election campaign. See Caperton v. Massey Coal Co..

Karuthamma said...

thank you for this. As already pointed out by others, why should the responsibility be placed on the lawyers appearing before the Judge as to whether or not he/she should recuse.

Alok said...

..because if the public (including some ill-informed judges/lawyers) had its say in these things, we wouldn't be granting alleged terrorists a fair trial and lawyers wouldn't be allowed to defend alleged murderers or criminals since "we know they did it."

I am not saying that Judges and Lawyers must insulate themselves from the general public, but the touchstone of the validity of certain conventions and practices of the Bar and Bench should not be "what will the general public think of this?"

It is a different matter that lawyers and judges have repeatedly failed the internally evolved standards and codes, but that doesn't mean we should dismiss all of that in favour of a "what would the public think of us" test on such issues.

Arun Thiruvengadam said...

Alok,

Your points woulc be valid if I was making some kind of broader 'democratic accountability' point as a solution to all problems. But I'm not, which is why I think you are attacking a straw man here.

My point is, given the woeful level of corruption both within the bar and the judiciary (after all corrupt judges don't emerge out of nowhere), I don't think the legal fraternity can shut sceptical voices in the non-legal world on this issue. If it was clear that the bar and bench can resolve this issue satisfactorily, we may be justified in keeping those sceptics at bay. You seem to acknowledge that we aren't there yet - so then, how can you justify maintaining the status quo?

A couple of other quibbles with your line of reasoning. You seem to suggest that we have a very progressive criminal justice system especially as it relates to anti-terror issues. Last time I checked, this wasn't the case. And, things have been becoming worse in the last few years, when even former CJI's seem to betray a misunderstanding of principles of the rule of the law when it comes to the criminal justice system and the prosecution of terrorism related offences. Some current justices have also made their preference for allowing national security to trump rights abundantantly clear, evidence of which we are already beginning to see in cases involving the balancing of these considerations.

You also seem to suggest that whatever civil liberties exist are because of lawyers and lawyer groups. I can recall several instances in recent years when bar associations have passed resolutions banning their members from representing persons accused of heinous and terrorism related crimes (recall the controversy over Jethmalani representing Manu Sharma, the Nithari case and the brouhaha over legal representation for Kasab). I don't think this is attributable, as you suggest, only to 'some ill-informed judges and lawyers.' My fear is that the scale of such ill-informed and misinformed lawyers and judges is much higher. If that be so, then leaving that fraternity to sort this important issue out by itself would not be wise, would it?

Alok said...

Arun

I didn't think that my three short paragraphs contained that many points which merited a long and detailed rebuttal :)

1. I repeat, I am not suggesting that the bar and bench shut itself out of public discourse, and yes, skeptical views of the public need to be taken into account, but not made the basis of determining standards of behaviour the bar and the bench are held up to. The standards are there, and the Bar and the Bench have to be held to it, whether by their own peers or the public.

2. If we accept that lawyers should try to enhance their standing among the general public, they would be perfectly justified in aligning their actions to the popular mood and pass the resolutions we speak of.
But that is not what lawyers are supposed to do. The Constitution needs to be defended even against popular will so to speak and it is for lawyers (and civil rights activists) to do so.

In any case, I guess what I was trying to get at was that the primary duty still lay with lawyers and judges to reform the system from within with necessary input and criticism from outside.

You can't impose "solutions" (to borrow software-speak) on such problems.

Rohit Sharma said...

Nice post. But I had a few queries / points:
1. The difficulties that over-zealous recusals pose are not merely practical in nature - I'm sure you don't consider forumshopping as a practical difficulty.

2. You have not explained the "minor" systemic changes that can solve these issues. I'm sure detailed evaluation of that would perhaps make you realize the problems recusals can pose.

3. I'm not sure it is cases such as the ones where recusals have come into focus are the ones threatening the judiciary. Therefore, the continuation of status quo would not necessarily entail high cost. The judiciary is more troubled by the present state of corruption, an area where the question of recusal does not appear to arise.