Teachers of privately managed primary schools and primary sections of privately managed high schools are eligible to receive their salaries from the State Government: SC Constitution Bench

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The apex Court today was hearing a group of seven appeals, the common question of which was whether teachers of privately managed primary schools and primary sections of privately managed high schools are eligible to receive their salaries from the State Government.

A Constitution bench comprising of Chief Justice R.M. Lodha, Justice J.S. Khehar, Justice J, Chelameswar, Justice A.K. Sikri and Justice R.F. Nariman answered the question in positive.

These appeals were first listed before a two-Judge bench, which after considering the applicable laws, was of the view that the decision of the three-Judge bench in the case of Vinod Sharma and others v. Director of Education (Basic) U.P. and others, 1998, required reconsideration.

The consideration necessarily involved the aspect whether the separation of education at the primary level from the Junior High School level and constitution of Uttar Pradesh Board of Basic Education under the 1972 Act and the entrustment of the Board with the authority to exercise control over Junior Basic Schools, referred to in the 1975 Rules as institution imparting education up to V class, render the view taken by the Court in Vinod Sharma’s case bad in law.

The Court took note of Article 45 which was under consideration in Unnikrishnan’s case. It reads that “the State shall endeavor to provide, within a period of 10 years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of 14 years.”

Examining the meaning of the expression “Junior High School” for the purposes of the 1978 Act, the Bench observed, “The expression “Junior High School” in the 1978 Act is intended to refer to the schools imparting basic education, i.e., education up to VIII class. We do not think it is appropriate to give narrow meaning to the expression “Junior High School” as contended by the learned senior counsel for the state. That Legislature used the expression Junior High School and not the Basic School as used and defined in the 1972 Act, in our view, is insignificant. The view, which we have taken, is fortified by the fact that in Section 2(j) of the 1978 Act, the expressions defined in the 1972 Act are incorporated.”

According to the Bench, the view taken by the High Court in the first round in Vinod Sharma that Classes I to VIII taught in the institution are one unit, the teachers work under one management and one Head Master and, therefore, teachers of the primary classes cannot be deprived of the benefit of the 1978 Act, cannot be said to be a wrong view.

Rather, it was considered in accord and conformity with the Constitutional scheme relating to free education to the children up to 14 years.

The Court justified its stand, stating, “Though in the Reference Order, the two-Judge Bench has observed that the High Court in the first round in Vinod Sharma, did not appreciate that the education at the primary level has been separated from the Junior High School level and separately entrusted under the different enactments to the Board constituted under Section 3 of the 1972 Act and the same Board exercises control over Junior Basic Schools and it was a conscious distinction made by the Legislature between two sets of schools and treat them two separate components and, therefore, Vinod Sharma does not take the correct view but we think that the features noted in the reference order do not render the view taken in Vinod Sharma bad.”

Hanging in balance: No executive interference required

Hanging in balance: No executive interference required

The judiciary has been praised by some for its role in exposing corruption in politics, while others point to the defective method of selection of judges through the collegium system to criticise it. To prevent further easy public slapping of the judiciary, we must now finalise the method of appointment.

The suggested pattern of a judicial appointments commission broadly fills the void. It is headed by the chief justice of India (CJI) and includes the next two senior judges, the Union law minister, two eminent persons (emphasis added) to be selected by the prime minister, the CJI and the leader of opposition in the Lok Sabha. Some rightly feel that “eminent persons” should be substituted with “eminent jurists”, because “eminence” by itself is too vague. Instead, “eminent jurist” would provide a larger field of academics, authors, outstanding lawyers (no longer practising, of course). The fear that the presence of a lay person would interfere with the independence of the judiciary is misplaced. As the Judicial Commission of New South Wales Annual Report said: “Judicial independence is not some kind of industrial benefit generously extended to judges and magistrates, it is [the] fundamental principle of our society’s constitutional arrangements.”

The provision with regard to the appointment of high court judges, however, states, unacceptably, that the JAC is only required to elicit (emphasis added) the views of the governor, chief minister and the chief justice of the high court. I can hardly see any relevance of eliciting the view of the chief minister separately from the governor. I, however, take strong objection to reducing the position of the chief justice of a high court to merely eliciting his view. The advice of the chief justice of a high court as to the suitability or otherwise of a person to be appointed a judge of a high court should normally be accepted.

Reportedly, though technically the collegium is being sought to be abolished, the CJI has asked chief justices of the high courts to consult their colleagues, even junior ones, as far as possible. But this suggestion may only be observed in the breach. I remember that in 1977, the Janata government’s informal suggestion that the chief justices of the high courts consult two senior colleagues was observed more in the breach. It was only when the collegium system was established that the chief justices of the high courts had no option but to consult their colleagues.

However, this did not mean that the government has accepted the collegium’s recommendation in all cases. In 1985, the chief justice of a high court and his two senior-most colleagues recommended four names, with the clarification that they must be appointed in the order in which the names were sent. This was done to prevent the government from picking and choosing on the specious argument that some names had not yet been cleared by the CBI and the appointments might be delayed, while those lower down the list could be appointed immediately. This was opposed by the chief justice, and the law ministry was so affronted that the government did not appoint any judge during his tenure. Afterwards, too, the law ministry first appointed new names and only later appointed those recommended by the earlier collegium. So the government’s intervention can only be checked by a strong judiciary. It is for this reason that I have reservations on doing away with collegiums entirely. The collegium system is welcome inasmuch as it constitutes a wider circle of three judges, rather than leaving it solely to the chief justice of the high court. The CJI’s advice to consult two more judges is welcome. I see no reason to abolish the collegium system at the high court level (which, after all, is only recommendatory). The appointments are now to be made under the provisions of the proposed JAC.

I am amazed that, so far, a serious self-inflected injury is being overlooked — that is, appointing the chief justices of high courts outside their parent court. I have never understood the logic of transferring the senior-most judge, whose turn to head the court in which he has worked for almost 10 to 15 years, and with the functioning and lower judiciary of which he is most familiar, has come. To transfer him to a new court for a period of one or two years or even less, to which he is a total stranger and most likely unaware of the names of his colleagues, is strange. At present, one has the embarrassing spectacle of a chief justice being transferred to a state where he cannot even understand the language. The chief justice of a high court should be the senior-most judge of the same court. This alone will lend strength and dignity to the high courts.

Section 8 of the new bill contemplates asking the state and Central governments to send recommendations for the selection of judges. I find this to be a frontal attack on the judiciary. After a JAC is constituted, the state or Central governments have no locus standi and should be outsiders in the process of selection. I agree though that the JAC should make public the names it is contemplating for appointments to high courts and the Supreme Court. This will make the process more open and participatory, and also negate the charge of secret manoeuvring in the appointment of judges.

Allegedly harassed Gwalior judge asks Supreme Court to form new panel

Allegedly harassed Gwalior judge asks Supreme Court to form new panel

The Gwalior judge who alleged she was sexually harassed by a senior high court judge, has asked the Chief Justice of India (CJI) to form a new inquiry committee to probe her allegations since she suspected bias from the Madras high court committee , reported NDTV

SC powerless but polite in ‘prophetic duty’: ‘Legitimate expectation’ on PM to ‘consider’ not appointing criminal-charge netas

A five-judge constitutional bench has ruled that it had no power to stop the states’ and country’s executive being staffed by politicians who have criminal charges pending against them, but argued for a “legitimate expectation” that prime and chief ministers should “consider” not picking such candidates, as reported by The Hindu and the Indian Express.

In the 88 page majority opinion, written by Justice Deepak Misra on behalf of Chief Justice of India (CJI) RM Lodha and Justice SA Bobde, the court held that it could not compel prime or chief ministers to not appoint politicians with charges into their cabinets, but advised that they shouldn’t:

86. From the aforesaid, it becomes graphically vivid that the Prime Minister has been regarded as the repository of constitutional trust. The use of the words “on the advice of the Prime Minister” cannot be allowed to operate in a vacuum to lose their significance. There can be no scintilla of doubt that the Prime Minister’s advice is binding on the President for the appointment of a person as a Minister to the Council of Ministers unless the said person is disqualified under the Constitution to contest the election or under the 1951 Act, as has been held in B.R. Kapur’s case. That is in the realm of disqualification. But, a pregnant one, the trust reposed in a high constitutional functionary like the Prime Minister under the Constitution does not end there. That the Prime Minister would be giving apposite advice to the President is a legitimate constitutional expectation, for it is a paramount constitutional concern. In a controlled Constitution like ours, the Prime Minister is expected to act with constitutional responsibility as a consequence of which the cherished values of democracy and established norms of good governance get condignly fructified. The framers of the Constitution left many a thing unwritten by reposing immense trust in the Prime Minister. The scheme of the Constitution suggests that there has to be an emergence of constitutional governance which would gradually grow to give rise to constitutional renaissance.
87. It is worthy to note that the Council of Ministers has the collective responsibility to sustain the integrity and purity of the constitutional structure. That is why the Prime Minister enjoys a great magnitude of constitutional power. Therefore, the responsibility is more, regard being had to the instillation of trust, a constitutional one. It is also expected that the Prime Minster should act in the interest of the national polity of the nation-state. He has to bear in mind that unwarranted elements or persons who are facing charge in certain category of offences may thwart or hinder the canons of constitutional morality or principles of good governance and eventually diminish the constitutional trust. We have already held that prohibition cannot be brought in within the province of ‘advice’ but indubitably, the concepts, especially the constitutional trust, can be allowed to be perceived in the act of such advice.
86. Thus, while interpreting Article 75(1), definitely a disqualification cannot be added. However, it can always be legitimately expected, regard being had to the role of a Minister in the Council of Ministers and keeping in view the sanctity of oath he takes, the Prime Minister, while living up to the trust reposed in him, would consider not choosing a person with criminal antecedents against whom charges have been framed for heinous or serious criminal offences or charges of corruption to become a Minister of the Council of Ministers. This is what the Constitution suggests and that is the constitutional expectation from the Prime Minister. Rest has to be left to the wisdom of the Prime Minister. We say nothing more, nothing less.
87. At this stage, we must hasten to add what we have said for the Prime Minister is wholly applicable to the Chief Minister, regard being had to the language employed in Article 164(1) of the Constitution of India.

Justice Madan Lokur agreed with Misra’s judgment but said “I find it necessary to express my view on the issues”, noting that the it was the court’s “prophetic duty to remind the key duty holders about their role in working the Constitution”:

12. No doubt, it is not for the court to issue any direction to the Prime Minister or the Chief Minister, as the case may be, as to the manner in which they should exercise their power while selecting the colleagues in the Council of Ministers. That is the constitutional prerogative of those functionaries who are called upon to preserve, protect and defend the Constitution. But it is the prophetic duty of this Court to remind the key duty holders about their role in working the Constitution. Hence, I am of the firm view, that the Prime Minister and the Chief Minister of the State, who themselves have taken oath to bear true faith and allegiance to the Constitution of India and to discharge their duties faithfully and conscientiously, will be well advised to consider avoiding any person in the Council of Ministers, against whom charges have been framed by a criminal court in respect of offences involving moral turpitude and also offences specifically referred to in Chapter III of The Representation of the People Act, 1951.

Download full 123-page judgment

In defence of the collegium

In defence of the collegium

The appointment of judges at the level of the high courts and Supreme Court continues to be problematic, in spite of cosmetic changes brought in through judicial activism in two stages. What remains is known as the collegium system. It was formulated by a nine-judge bench of the Supreme Court after hearing long arguments addressed by top-ranking counsel. Initially, the collegium system was generally welcomed, despite opposition from politicians on the ground that the judges had arrogated to themselves the power of choosing judges. But in due course, it received criticism from different quarters, including members of the Bar. It is true that the collegium system has remained in force for more than  15 years. As the years have passed, burgeoning criticism that the present system did not remedy the drawbacks of the erstwhile mechanism have eventually become more strident.

At least in a few instances, unsuitable persons have found their way to seats of judges in the high courts. It is, of course, a matter of relief that the number of such persons has not swelled to alarming proportions. At the same time, it would not be true to say that no unsuitable person has reached the Supreme Court bench through the collegium system. The lesson to learn is that however much improvement is sought to be achieved through changes to the appointments process, the efficacy of its working depends on the vision and dedication of the persons empowered  to manage the system.

The chairman of the Law Commission of India has suggested that a seven-member judicial appointments commission (JAC), with a preponderance of members from the judiciary, be instituted. But of what use are the proposed changes if some members of the JAC function in the same manner as before? What is the guarantee that only persons of impeccable and proven integrity, coupled with the moral strength to assert their dissent (if any) on record, would fill up the JAC? Having been a member of the collegium of the Supreme Court,  I know how outsiders seek (and get) access so as to canvass for the decision-making process. I doubt that the situation would change if the proposed composition of the JAC were to be implemented. I am also not prepared to say  that the selection of “eminent persons” would not become diluted in due course, particularly because of the vagueness  in standardising who these “eminent persons” can be. I am sceptical of the outcome of the JAC in the long run, given that the scope for manipulation and favouritism cannot be fully eliminated even within it.

A former chief justice of the Kerala High Court had evolved an experiment while adhering to the collegium mechanism. When there were three vacancies of Bar candidates, he invited recommendations from all his companion judges in the high court, requesting them to send at least five names each. He got 40 names altogether, and shortlisted them to 10. He studied their performance and presented his views before the other members of the collegium of the high court. When there was dissent, he expanded the three-member collegium and obtained their views also. He made the final recommendation to the Supreme Court. In that process, the Kerala High Court gained three very fine judges. I thought that the same could be followed by the chief justices of other high courts and, in fact, I wrote an article in support of it. But on deeper thought, I sensed that if the practice continued and remained in place for much longer, the scope for canvassing with other judges for interested persons would have increased greatly and the experiment would have been rendered ineffective.

The criticism that the executive has now no role in the appointment of judges is, to a great extent, misplaced. In my view, there should not be any dispute on the proposition that judges should have the first-stage opportunity to point out who the best candidates for judgeship are. But their judgements on that score cannot be treated as infallible. When names of candidates are sent by the collegium to the executive, it is definitely possible for the executive to conduct a thorough inquiry through such departmental agencies as they could trust. Then the executive can send back the names to the collegium for further consideration and a final decision. One change I wish to propose is to permit the executive to propose names to the collegium at the initial stage.

Whenever recommendations are to be made for more than two vacancies (it may go up to 15 and sometimes even to 20), there could be a temptation for members of the collegium to compromise in order to accommodate candidates on barter considerations. Whenever bulk recommendations have occurred in the past, some not-so-suitable (if not totally unsuitable) candidates have succeeded in getting access to the list. This defect can be effectively eliminated by restricting recommendations strictly to one or two vacancies at a time, and definitely no more. In my view, the existing system  can continue with the modifications indicated above.

SC proactively backs CCI: DLF to stump up full Rs 630 cr anti-trust penalty pending appeal

SC proactively backs CCI: DLF to stump up full Rs 630 cr anti-trust penalty pending appeal

A Supreme Court bench of justices Ranjana Prakash Desai and NV Ramana told real estate developer DLF that it should deposit with the court the entire penalty of Rs 630 crore that the Competition Commission of India (CCI) had imposed on it in 2011, pending the outcome of its appeal against the Competition Appellate Tribunal (Compat) order of May of this year.

DLF should pay Rs 50 crore within three weeks, Rs 580 crore within three months, and should undertake to pay another Rs 170 crore in interest if its apex court appeal should fail, reported IANS. DLF was fined for “highly abusive” apartment buyers agreements in several of its developments.

The current accountability deficit

Debates on the collegium system generally start at the wrong place, namely, whether a national judicial commission will be a better alternative. The point at which they ought to start is whether the creation of such a system is constitutionally permissible. Article 124 of the Constitution states that every judge of the Supreme Court shall be appointed by the president in consultation with such of the judges of the Supreme Court, and of the high courts in the states, as the president may deem necessary. It also says that in the case of appointment of a judge other than the chief justice, the chief justice of India (CJI) shall always be consulted.

In the name of the independence of the judiciary, the Supreme Court said in 1993 that primacy in the matter of judicial appointments must lie in the final opinion of the CJI, “unless for very good reasons known to the executive and disclosed to the chief justice of India, that appointment is not considered to be suitable”. To mitigate the violence done to the

plain language of the Constitution and to reassure every one that power did not rest in one individual alone, that is, the CJI, the court created a new constitutional institution, a collegium of the senior-most judges.

This was not a creative interpretation of the Constitution, as the apologists for the collegium system would have us believe, but a plain rewrite. This was judicial overreach and it was only last year, 20 years later, that serious attempts began to repair the damage to the Constitution.

Having stated my fundamental objection, I will recapitulate my three other objections. First, there must be an element of democratic accountability in the matter of appointments to the higher judiciary, which has the power to strike down laws of Parliament and state legislatures, and even amendments to the Constitution. Second, when judges appoint judges, they look mainly at “technical competence” and seniority. They do not necessarily look at the social philosophies or gender sensitivities of prospective candidates. Third, judges do not pay particular attention to the idea of manpower planning, as is clear from the many short-term appointments of chief justices and short-term appointments to the Supreme Court. In a judge-dominated system, everyone needs to be given a “chance”.

And so, it is about time that we put a better system in place. There is no going back now to the original system of the executive appointing judges in consultation with the judiciary, by invoking the doctrine of “original intent”. Much has changed in the world since we enacted the Constitution. Processes of judicial appointments are far more participatory all over the world. Stakeholders in the justice delivery system are now accorded an important role. Let us look at just two examples.

In Canada, the advisory committee for judicial appointments includes a member of parliament from each recognised party, a retired judge, a nominee of the attorney general, a nominee of the law societies and two prominent Canadians who are neither lawyers nor judges. In South Africa, the Judicial Service Commission includes judges, the minister for justice or his nominee, advocates and solicitors nominated by their respective professional bodies, a professor of law, senators and four nominees of the president of whom two shall be advocates or solicitors.

The judicial appointments commission (JAC) needs to be written into the Constitution itself, not only in terms of its creation but also its composition. It is necessary to make this point because the previous government had originally sought to bring the commission into the Constitution, but left it to Parliament to make an ordinary law to prescribe its membership. This was undesirable. Successive governments would have been free to change its composition according to their will.

Should the JAC be a part-time body? The Union Public Service Commission is not part-time. Surely, appointments to the superior judiciary are not less serious a matter than civil service appointments. But the present collegium, by its very nature, can only meet in the evenings after the judges have finished their arduous courtroom work, and before they start writing their judgments and reading for their cases the next day. To make appointments to the Supreme Court and all the high courts in the country, we need a full-time institution with a permanent secretariat and its own information- gathering wing. And so, the judicial members would have to be former and not sitting judges. Similarly, jurists and eminent citizens will need to be full-time members. The only possible part-time ex officio member could be the law minister.

The national judicial commission will need to devise new methods for attracting talent to the judiciary. The old practice of “asking” and “inviting” must be supplemented by calling for applications from interested candidates (currently, you can apply to become a district judge, but it is bad form to apply to be a high court judge!). Search committees will have to look for the best legal talent, not only from within the court system but also outside. In the current system, non-litigating lawyers don’t ever get considered.

And the question of the “tilting balance” remains. Former judges (most recently, Justice A.P. Shah) take the view that the independence of the judiciary can only be secu red by judges outnumbering the others. I, however, believe that democratic accountability in the process of appointment is equally important and, in principle, judges should be marginally outnumbered.

Finally, since it looks as if we are getting down to business, we need to attend to the removal process as well; it is part of the same Article 124 that is going to be amended. Impeachment involves getting signatures from MPs. On the one hand, it makes it difficult for even genuine complaints to proceed further. On the other hand, it politicises the process. One impeachment failed because the then ruling party abstained from voting, and two others were aborted by midstream resignations (civil servants are not allowed to resign in the middle of disciplinary inquiries; can judges be allowed to do so?). The proposed national judicial commission must therefore be in charge of the removal of judges as well.

Another controversy faces CBI Director in 2G scam

Facing the heat after CBI was termed “a caged parrot” by the Supreme Court, it looks like controversies are in no mood to let go of CBI Director Ranjit Sinha.

Prashant Bhushan, appearing for the NGO, Centre for Public Interest Litigation (CPIL), one the petitioners in the 2G case informed the Supreme Court that he has come across “very disturbing” and “exposing material” coming in the way of administration of justice in 2G spectrum allocation scam.

The Bench was informed that after the episode of keeping DIG Santosh Rastogi away from investigation of the case, something which was rectified the Apex court itself, another “disturbing thing” has happened.

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Prashant Bhushan stated “Last night I came across very disturbing and explosive material. The entry register of Director’s residence”. He also referred to a news report, according to which, top officials of a company indicted in 2G scam met CBI Director at his residence in the last 15 months. While he was still reading his note, senior advocate K KVenugopal, appearing for the CBI intervened and asked the bench to pass an order that all materials be placed before the court in a sealed envelope. Senior advocate Ram Jethmalani, who was appearing for one of the accused in the scam, came to the defence of CBI Director and said “he is performing his duty well but all kinds of allegations are being levelled.”

The Bench comprising Justices H L Dattu, S A Bobde and A M Sapre then stopped Prashant Bhushan from reading out his note and said “If you can give the copy of the material to us, CBI and Director’s counsel, we can take up the matter day after tomorrow.”

Also, Senior advocate Vikas Singh appearing for the CBI Director, said that allegations are being made and it appears that attempts are being made to destroy CBI as an institution whileJethmalaniheld the view that everytime Bhushan comes out with notes, CPIL should be asked to make its submission through affidavit.

The bench asked CPIL to make its submission by way of affidavit. The next day of hearing will be on Thursday when the Court will also hear CPIL’s application seeking recusal of Sinha from all 2G matters, allegedly for trying to protect some influential accused in the scam. CPIL has alleged that the “Director has made serious attempts to derail the investigation and prosecution being carried out by the CBI”.

Fair advocacy as a right

Fair advocacy as a right

The system of fixing fees based on the ‘star value’ of the lawyer is a dangerous trend for the judiciary as well as for our democracy

Access to justice essentially means access to a lawyer. The legal profession has a public character. A lawyer is placed between the state and the citizen; therefore, he performs a democratic, libertarian and emancipatory function. The bar is not a private guild. In a celebrated decision in the United States, Justice Nelson rightly said that there is no other relation of life involving higher trust and confidence than that of an attorney and his client (Stockton v. Ford, 1850).

Canon No.12 of the American Bar Association Canon of Professional Ethics warns that “In fixing fees it should never be forgotten that the profession is a branch of the administration of justice and not a mere money-getting trade.” Wesley Romine reminds us that “if the legal profession is to honor its responsibilities to public service, it is essential that the society which it serves should not view the professional abilities of lawyers as representing avaricious and purely personal efforts to obtain wealth.” In Bushman v. State Bar of California (1974), the demand for excess fees coupled with misrepresentation and an attempt to solicit work was the matter in issue. In that case, following the ratio in re Goldstone (1931), a California Court declared the principle of law: “It is settled that a gross overcharge of a fee by an attorney may warrant discipline. The test is whether the fee is ‘so exorbitant and wholly disproportionate to the services performed as to shock the conscience’.”

Cost of litigation

But rhetoric is not reality. Though there is a lawyer between the state and the citizen, between the lawyer and the citizen, there is often the real obstacle of exorbitant professional fees which in itself forms the major chunk of the cost of litigation. Litigation in the Supreme Court is often a multi-crore affair. It is so in many of the High Courts as well. This is the irony prevalent in the constitutional courts, irrespective of the country’s socialist preamble to the Constitution. Legal aid for the poor does not enable the poor to choose the lawyer, nor the lawyer to choose the poor. Quality advocacy is an expensive commodity in the legal market. In V.C. Rangadurai (1978), Justice Krishna Iyer bothered about the “elitist” character of the profession and said that “its ethics, in practice, leave much to be desired.” Today, the profession has assumed a corporate character. A recent study demonstrates that the Supreme Court is a court too far away from the common man (Frontline, April 20-May 3, 2013). The alienation is not due to geographical or institutional reasons alone. Lawyering, by and large, has become a big industry. The distinction between the profession and the trade is blurred. The pity, however, is that often it lacks even the fairness of trade.

Ms. Esha Saha, Associate Editor at Live Law exposes the practice of senior lawyers charging unbelievably excess fees under various heads like retainer fee, settlement of brief charges, conference charges, appearance charges, reading fees, opinion/consultation fees etc. After indicating the alarming figures of the fees charged, she says, “Law is the most sought after and money spinning career in [the] U.S., but even the lawyers from [the] U.S. are astonished to hear about the fees charged by some of the star lawyers in our country. Indian senior lawyers have come a long way since the days of legal luminary M.C. Setalvad who had fixed a standard rate of Rs.1,040 for special leave petitions (SLPs) and Rs.1,680 for final hearings.”

The tragedy is that what the western democracies start to take as misconduct, is (mis)taken for eminence in a country that discovered and aspired for Gandhian jurisprudence. The cost of good lawyering is too serious a matter to be left to lawyers alone.

Need for standardisation

The difficulty experienced in an assessment of fees and the fallibility of another’s judgment regarding an advocate’s fees does not justify the robbery by the robbed brethren. The proportion between labour and cost is not wholly irrelevant. Corporatism should not annihilate conventional values. Experience, specialisation, value of time and intensity of efforts may be crucial in determining fees. Also, there are general economic criteria like demand and availability, material cost, abandonment of other work, etc. The system of fixing fees based on the “star value” of the lawyer is, however, a dangerous trend for the judiciary as well as for our democracy.

Though there is a lack of standardisation and certainty in many areas of legal remuneration, the levy of “shockingly exorbitant fees” should lead to disciplinary action. It needs to be taken as an action of misconduct that “tends to bring reproach to the profession” amounting to professional misconduct as defined under the Bar Council Rules.

There are state legislations regulating the lawyer’s fees in the subordinate courts and even in the High Court in civil and criminal matters. Often, those are framed by the High Court by invoking power under Articles 225 and 227 of the Constitution. The rules regarding fees payable to advocates in Kerala designed by the Kerala High Court after approval by the Governor is a fine example (Kerala Gazette dated 22.7.1969). It is a tragedy that the practice of law in the constitutional courts is not controlled by any law whatsoever. There is a real need to evolve an Aam Aadmi movement in Indian constitutional courts, where people should be able to ask for fair advocacy as a right.

Classification of lawyers

Senior lawyers are designated by the court. The seniorship is either conferred or granted on application. Section 16(2) of the Advocates Act states that an advocate can be designated as senior if “the Supreme Court or the High Court is of the opinion that by virtue of his ability, [standing at the Bar or special knowledge or experience in law] he is deserving of such distinction.” Note that the statute does not insist on any ethical parameter in deciding the question of designation. The prescribed application in some States inter alia asks for income tax details. Behind it, there is an incorrect and unacceptable postulate that the more the income, the more eminent the lawyer.

Generally speaking, the judiciary in the country also would find it difficult to indicate instances of moral and democratic considerations in choosing the leaders of the bar. It is time the statutory concept of eminence is radically altered by way of appropriate amendment. According to Section 16(3) of the Advocates Act, the Bar Council of India can restrict senior lawyers in the matter of their practice. In view of this statutory obligation cast on the Bar Council, the levy of excess fees also should be regulated by the Council. I support the suggestion by Nick Robinson that independent boards should oversee the profession in the best interest of the litigants (“Failed by the lawyer,” The Hindu, July 6, 2013). Chapter II under Part VI of the Bar Council of India Rules deals with “Standards of Professional Conduct and Etiquette.” The rules also need appropriate amendment encompassing excessive bills.

Negation of equality

On account of the indiscriminate conferment of seniorship, there is a clear negation of the perceived equity and equality among the bar members. By treating the bench and the bar on a par with each other, a higher level of internal democracy was conventionally ensured in the judiciary. A similar equality among the members of the profession also is an Anglo-Saxon legacy. The classification of lawyers envisaged by the Advocates Act has had the effect of sabotaging the fundamental uniformity in the bar. In a Maharashtra case, M.P. Vashi v. Union of India (W.P.(C) No.632 of 2011), the levy of exorbitant fees by senior lawyers was the matter in issue. Vashi argued that most of the designated lawyers, by making use of their star value and face value, charge unfair fees. He submitted that a kind of monopoly is being created in the business, detrimental to the interest of the common man at “the other side” who is unable to afford such highly priced lawyers. Unfortunately, the Bombay High Court was not inclined to accept the contention and a historical opportunity for institutional introspection was lost.

Even in decisions dealing with the professional conduct of lawyers, the Supreme Court has not focussed on the question of lawyers’ fees (O.P Sharma v. High Court of Punjab and Haryana (2011) and Supreme Court Bar Association v. Union of India (1998). However, in an earlier judgment in Bar Council of Maharashtra v. M.V. Dabholkar (1975), the court indicated that misconduct is “not restricted to technical interpretations of Rules of conduct.” The Supreme Court added, “Professional ethics cannot be contained in a Bar Council rule nor in traditional cant in the books but in new canons of conscience which will command the members of the calling of justice to obey rules or morality and utility.” This principle should apply to the instances of excess charges by lawyers, whether they are seniors or juniors. Since there is a clear deficit in the legislations, which has the effect of infringing on the common man’s right, the Supreme Court needs to lay down the law even by way of judicial legislation as done in Vishaka (1997) and Vineet Narain (1998).

It is fallacious to think about popularising the judicial institutions or legal profession for that matter. The point is about democratising them. The right to choose among the capable is the touchstone of democracy. Like in any other occupation, a lawyer’s job too is quite ordinary and terrestrial. It is high time that the aura surrounding it is removed and the profession demystified. Litigants, like patients, make for an unorganised lot. Reformation in the legal profession is a condition precedent for judicial reforms which again is indispensable for democratic reforms. The idolatry within the bar is detrimental to the majority of the members of the profession, who do not have any role in the mischief. It also negates public good. The state should, therefore, interfere with the “legal market” in the country.

Thirteenth Attorney General Goolam E. Vahanvati succumbs to cardiac arrest in Mumbai

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It was his father’s sudden death in 1975—at 54, of a burst ulcer—that changed Goolam Vahanvati’s life. The family hardly had enough money for the burial but the young lawyer took charge and decided that he and his sister would not stay home for an endless mourning period. Three days after his father’s death, he was back at the Bombay High Court, beginning his day, as usual, with collecting the keys of the court library at 9.50 a.m. to devour legal tomes in between court appearances. He didn’t have a chamber in the court and would often put in 18 hours of work in a day.

Vahanvati, 60, who was last week appointed Attorney General—the first Muslim to be the Government’s senior-most law officer—now recalls the contribution of his father, Essaji Vahanvati, in shaping his legal career. Vahanvati, who would sit in court to hear his lawyer father argue cases, remembers an instance when his father had cited a page number for reference, and the judge had remarked, “We accept your word Mr Vahanvati. We do not need to check the reference.” “Those words had a deep impact on me,” says Vahanvati, whose son Essaji is named after his father and works in London as a non-litigant lawyer. “Years later, in the Supreme Court, when judges told me during cross-questioning that they believed what I had said, I knew I had picked up the best of my father’s court craft. That is why my advice to younger members of the legal profession still is: never mislead a court.”

Vahanvati also acknowledges the role that several legal eagles under whom he trained played in his ascendancy—from being appointed Advocate General of Maharashtra in 1999 to Solicitor General in 2004 and now, Attorney General. His longest stint—almost five years—was under the watchful eye of Fali Nariman and later under Soli Sorabjee, Ashok Desai and Ashok Sen.

He admits that as the outgoing Solicitor General, though his name was doing the rounds as the “front-runner” for the post of Attorney General, it was only after the Prime Minister called him last week for a discussion that he knew the Government was serious. “The PM wanted to know my views on judicial reforms. It was later that the Law Minister telephoned me and told me about my appointment and I don’t think my being a Muslim had anything to do with my elevation,” he says.

He says that with an assurance from the Prime Minister himself that there would be no resource crunch for the passage of judicial reforms, he is very enthusiastic about starting his stint as AG. “The Law Minister is also not one to make hasty statements on serious legal issues.”

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There is an anecdote that close friends of Vahanvati tell you when you ask them what kind of man he is. Last year, speaking before a select gathering, Vahanvati, then SG, shared his simple plan to check corruption. “Just organise a candlelight vigil outside the house of a corrupt official,” he suggested, adding that the results would be there for all to see within one week. “Let’s see how he moves around in society.”

This, his associates and colleagues say, is what Vahanvati is all about—simple, sharp and somebody who has no qualms about saying what he feels strongly about, whether in the government or outside.

What they, however, leave unsaid is that Vahanvati’s style is in sharp contrast to that of his predecessor, Milon Banerjee. Vahanvati is expected to be the bridge between the executive and the judiciary, something that will not be too easy considering the ambitious plans of the government to make the judiciary accountable and bring transparency in the appointment of judges.

“The government couldn’t have selected a better person to be its top lawyer. Goolam has the ability to present the case without being too shrill. It is also important that he will be an active AG, who will argue for the government in important cases and not just depend upon other law officers,” notes a senior advocate who was an additional solicitor general in the last government.

A senior advocate since March 1990, Vahanvati is known to follow strict rules while being a government lawyer. His friends say he routinely turns down invitations for social dos as he doesn’t want to be caught in the wrong company or be accessible to networkers.

Vahanvati is a huge supporter of transparency in the government and is often heard talking about the good that the RTI Act has ushered in.

“He reads his brief very carefully and is prepared before the arguments begin. He refuses to be led by his assisting counsel. Many a time, he comes and sits in the courtroom at least half an hour before his case is to come up for hearing. While sitting there, he even offers advice to other government lawyers,” says a lawyer.

And, if the list of the cases he has won for the government as SG is any indicator, the faith reposed in him doesn’t seem undeserved. He argued the government’s stand on reservation for OBCs in higher education and the MP Local Area Development Fund. He also argued before the nine-judge Bench hearing the case pertaining to the Ninth Schedule, represented the government in the PIL filed by Kuldip Nayyar to challenge the amendment to the Representation of the People Act as well as the Delhi sealing cases.

Before being appointed SG in 2004, Vahanvati was Advocate General of Maharashtra from December 1999 to June 2004, where he handled various important cases, including the Enron cases and the stock market scam.

A topper in almost all the exams he sat for, Vahanvati is a teacher-turned-lawyer. While studying as a Tata scholar, he also lectured at St Xavier’s College and Sophia College, Mumbai.

An avid cricket fan, Vahanvati was given the responsibility by the International Cricket Council (ICC) to inquire into allegations of racism in Zimbabwean and South African cricket.

It’s not just law that engages his attention. “He can hold his own against anybody on the subject of rock music. These days he doesn’t get too much time to indulge in his love for music. Whenever he finds time, he listens to lounge music,” says his long-time associate Claude J. Mirinda.

He was designated as a senior advocate in 1990, became advocate general of Maharashtra in 1999 and solicitor general in 2004.
He is survived by his wife, daughter and his son, Essaji Vahanvati, who is a partner at AZB & Partners Mumbai.