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.
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