OP. ED.

In cricket, both for fast bowlers and medium-pacers mastering the art of reverse swing is crucial to ensure that they do not get booted out of their teams. In the same manner, in the legal field today, I am trying to explore this reverse swing with the hope that I may not get booted out.

There is a big list of advisory literature and lectures on the subject: “What Judges expect from lawyers”. However, there is hardly any direct and explicit view on vice versa i.e. ‘What advocates expect from Judges’. Although, it is customary in our system that Judges sitting higher on the Bench and having reins of majesty of law, their expectations should be given preference and more weightage, as dispensing justice is considered a more pious duty than the job of the advocates, who represent the litigants for their respective cases. No doubt, the lawyers are also the officers of the court and they always try to satisfy the litigants’ desire for justice by performing their legal duties, but in the legal world, consumers of justice are ignored much, than being recognised in its true perspective.

I am, however, attempting to address this issue based upon some experience I have. The Supreme Court of Canada has said: ‘The Judge is pillar of entire judicial system.’[1] This also applies in India. The great Socrates defined the four personal qualities of a Judge, which has become famous: ‘to hear courteously; to answer wisely; to consider soberly and to decide impartially’. All the same, Judges are also human beings and so, they are not free from any fallibility. Of course, it varies from Judge to Judge, but it is imperative to understand from an advocate’s standpoint of view that how s/he sees the Judge. What he/she expects from the Judge. The inner and outer expectations of the lawyers also differ within themselves and from junior or new entrant in the profession to a seasoned senior; hopes from the Judge/s are diverse in various categories. However, there are some general points, which all advocates want and wish from the judge to consider their case/s in the given set of facts and law. I have tried to summarise the same in the following manner without repeating those four things what Socrates had said above. However, these are only illustrative and not exhaustive at all.

  1. Advocates want Judges to allow them to develop their case a little bit more, even if it is a fresh matter for admission and the Judge has already read it in advance. Of course, some Judges hear patiently even if they know there is nothing in the matter, but some are impatient by themselves and before an advocate rises to address, it is determined as ‘dismissed’. Sometimes, advocates are aware of the weakness in their own cases, but because the law is not settled, they seek a fighting chance, as there are liberal Judges and there are strict Judges. Notions for issuing notice or not also have diverging views. Hence, there is nothing wrong, if an advocate could be heard for a little more time.
  2. Advocates wish that Judges should be open till the end of the matter and should not close their minds with preconceived notions. Many lawyers feel this thing in a variety of cases. However, there is no harm in changing the opinion even at a last moment, if ultimately there is a point to consider the matter. Open-mindedness is always better for just adjudication process.
  3. Moreover, one cannot change the facts, but by interpreting the law, relief can be molded in the interest of justice, equity and good conscience, as we have inherited it from the common law tradition. Hence, endeavour should be made to see that justice is done. Arguments and counter-arguments are not the game, which is played in the courtroom. The Bench should be concerned in finding out the truth and not to watch the performance of the lawyers, unlike a wrestling match. However, to discover the truth is the most difficult task for the Judge, as sometimes, truth is stranger than fiction and it is said: Fiction is obliged to stick to possibilities, truth isn’t.
  4. Advocates want and deeply wish for an equal treatment with all the members of the Bar/profession irrespective of their standing and status as senior counsel/advocate while addressing the courts. Junior members of the Bar hardly envy of status of senior counsel/advocate, as they have full respect for them and they know that seniors have earned it by sheer hard work and talent, but what pinch them is some special treatment by a certain Bench. Painfully, the Judges justify them by saying: they have a good point, which ordinary lawyer will not be able to see because they carve out from even from a dead horse. This is debatable and most of the members of the Bar would hardly agree with this, considering on the same point, a junior advocate is snubbed by the same court, wherein the senior counsel is entertained. Here, there is hardly any need to cite specific instances, as practicing advocates see this day in day out. Nevertheless, there is not an iota of grudge or any kind of resentment against the learned seniors of this noble profession, as they are always respected and torchbearers of this noble profession, who have set highest traditions and examples for new generation, but the point is: if other things being equal, similar treatment by the Bench is required to be given to all, of course fairly and justly.
  5. And last, but not the least is: behavior of the Judge, when s/he adorns the Bench. Judges do mark conduct of the advocates while they are arguing; in the same manner, the advocates are also noticing the behavior of the Judge, while he/she is hearing the case. Sometimes, advocates understand that due to heavy workload and unbearable backlog, Judges tend to be disturbed, perturbed and become agitated on the Bench and the lawyers tolerate this by keeping quiet or sometimes with smiling face. But, if this happens every day and the mood swings of the Bench, then, it makes difficult for the advocates to conduct the case as per their preparation of the matters.

In the Indian legal system, more particularly, in litigation, as soon as fresh advocates enter in the profession, first thing they learn is about the face-law. Some seniors used to say and sometimes they rightly say: before knowing the law, know your Judge. Meaning thereby, see and observe: how s/he deals with the case, in what manner and most importantly – what s/he likes and what s/he dislikes. Law is what, Judge says.

I conclude by citing the memorable words of great Judge Justice M.C. Chagala from his autobiography ‘Roses in December’, which I quote: “Discourtesy to the Bar is essentially evidence of weakness in the Judge. Losing one’s temper while counsel is arguing is a reflection only of the  Judge’s own failing and his inability to control the Bar…’


*Advocate practicing at Gujarat High Court and Visiting Professor at Institute of Law, Nirma University, Ahmedabad

[1] The Canadian Superior Courts Judges Association, “The Qualities Required of a Judge” http://www.cscjaacjcs, (8 May, 2017)

OP. ED.

“A Judge of the Supreme Court is not entitled after retirement to plead or act in any court or before any authority within the territory of India. He has to depend during the declining years of his life on his savings and the pension to which he is entitled as a retired Judge. The meagre pension has thus also the undesirable consequence of driving some of the Judges who have retired to find remunerative occupation which affects the dignity of the high judicial office they held.”

The above is an extract from the 14th Report of the Law Commission of India on ‘Reform of Judicial Administration’ submitted merely a decade after independence. Evidently, more than sixty years ago to the day when a former Chief Justice of the Supreme Court would be nominated to the Rajya Sabha, the Law Commission of India, then headed by none other than M.C. Setalvad himself, came to express grave misgivings precisely regarding what has transpired by way of the Home Ministry’s Notification dated March 16, 2020.

The events as have unfolded herein may not be the first instance of such a brazen assault on judicial propriety and dignity. In fact, as far back as 1958, government employment of Judges after they had superannuated from the Bench had been expressly deprecated as one having a debilitating impact on judicial independence, with the Law Commission recommending a complete prohibition thereof.[1]

However, in the years that have ensued, nothing justifies the utter disregard and oversight on part of the framers of the Constitution as well as successive elected governments insofar as this gaping void in Chapter IV of Part V[2] of the Constitution is concerned. A perusal of the Constituent Assembly (CA) Debates clearly points towards a perceptible acceptance and imbibing of the best traditions of judicial independence as well as propriety. Paramountcy was given to ensuring that the Indian Republic is bestowed with a truly independent and free thinking judiciary.

Nevertheless, one cannot but notice the disproportionate preoccupation of the Constituent Assembly with the manner and mode of ‘appointments’ and ‘conditions of service’ of Judges to the detriment of other subliminal pressures acting upon them. Perhaps the thought ran that if citizens of high moral character are appointed and allowed to function in a sufficiently insulated and isolated environment, the pressures of the other gubernatorial branches would be unable to render pliable an ‘untouchable’ judicial setup.

In fact, Granville Austin in his seminal work on the workings of the Constitution of India while stoutly defending the appointment of Judges as it transpired in the pre-Indira era has laid out several instances of the grim reality of executive inter reference based on regional, communal, linguistic as well as caste based considerations.[3] Therefore, though no outward fault may be attributed to the Constituent Assembly’s oversight, it must be accepted that with evolution in gubernatorial functioning, judicial sanctity must also assume a dynamic, varied and evolved response. 

It is bewildering to note that a constitutional prohibition on holding of any government office post-superannuation has in fact been enacted in the very next chapter of the Constitution of India[4]; Article 148 providing thereby that,

“(4) The Comptroller and Auditor-General shall not be eligible for further office either under the Government of India or under the Government of any State after he has ceased to hold his office.”

Similarly, vide Article 319, insofar as the Chairman of the Union Public Service Commission is concerned, it has been provided that,

“(a) the Chairman of the Union Public Service Commission shall be ineligible for further employment either under the Government of India or under the Government of a State.”

Evidently, thus, there exists ample precedence for a constitutional bar/prohibition on further employment under any government for those occupying certain constitutional posts. Perhaps an argument can be made out as nomination as a member of the Rajya Sabha strictly does not amount to ‘further employment under any Government’. Nevertheless, the manner in which a former chief of the Indian judiciary has been nominated to a legislative post shall surely dent the resolute confidence that the aware public reposes in those who occupy the highest echelons of our judicial setup.

In conclusion, it is put forth that if the state of affairs betrays a predisposed inclination, erosion of faith and confidence in the judicial establishment is indubitable. Only a bipartisan resolution to ensure that this failure and complete oversight on part of the framers of the Constitution is undone may possibly ensure restoration of judicial dignity. It is grossly undesirable that those sitting in judgment over a litigant should then be permitted to seek employment with the same litigant; such quid pro quo will surely be the death knell of natural justice.


* The authors are practising advocates in Delhi.

[1] Law Commission of India, Reform of Judicial Administration (14th Report, Vol. I,1958).

[2] Part V, Chapter IV of the Constitution of India consists of provisions establishing the ‘Union Judiciary’.

[3] Granville Austin, Working a Democratic Constitution: The Indian Experience (OUP; 2003; pp. 123-142)

[4] Part V, Chapter V of the Constitution of India pertains to the ‘Comptroller and Auditor General of India’.

Appointments & TransfersNews

Appointment of Additional Judges as Judges of Karnataka High Court

President is pleased to appoint S/Shri Justices:

(1) Dixit Krishna Shripad,

(2) Shankar Ganapathi Pandit,

(3) Ramakrishna Devdas

(4) Bhotanhosur Mallikarjuna Shyam Prasad,

(5) Siddappa Sunil Dutt Yadav,

Additional Judges to be Judges of the Karnataka High Court with effect from the date they assume charge of their respective offices.


Ministry of Law and Justice

[Notification dt. 02-01-2020]

Appointments & TransfersNews

The Supreme Court Collegium in its meeting held on 15-10-2019, after taking into consideration the material on record, has approved the proposal for elevation of the following persons as Judges of the Jammu & Kashmir High Court:

1. Moksha Kazmi (Khajuria), Advocate; and
2. Rajnesh Oswal, Advocate


Supreme Court of India

Appointments & TransfersNews

Supreme Court Collegium in its meeting held on 15-10-2019, after taking into consideration the material on record, has approved the proposal for elevation of the following persons as Judges of the Gauhati High Court:

1. Soumitra Saikia, Advocate;

2. Parthivjyoti Saikia, Judicial Officer; and

3. S. Hukato Swu, Judicial Officer.


Supreme Court of India

Appointments & TransfersNews

Proposal for appointment of following seven Judicial Officers as Judges of the Punjab & Haryana High Court:

1. Shri Satish Kumar Aggarwal,
2. Shri Ashok Kumar Verma,
3. Shri Sant Parkash Phutela,
4. Shri Karamjit Singh,
5. Shri Vivek Puri,
6. Mrs. Meenakshi I. Mehta, and
7. Mrs. Archana Puri

For the purpose of assessing merit and suitability of the above-named recommendees for elevation to the High Court, we have carefully scrutinized the material placed on record. On the basis of interaction and having regard to all relevant factors, the Collegium is of the considered view that S/Shri (1) Ashok Kumar Verma, (2) Sant Parkash Phutela, (3) Karamjit Singh, (4) Vivek Puri, (5) Mrs. Meenakshi I. Mehta, and (6) Mrs. Archana Puri, Judicial Officers are suitable for being appointed as Judges of the Punjab and Haryana High Court.

As regards Shri Satish Kumar Aggarwal, having regard to the material on record and all relevant factors, the Collegium is of the
considered view that his case deserves to be remitted to the High Court. The Collegium resolves to recommend accordingly.

In view of the above, the Collegium resolves to recommend that S/Shri (1) Ashok Kumar Verma, (2) Sant Parkash Phutela, (3) Karamjit Singh, (4) Vivek Puri, (5) Mrs. Meenakshi I. Mehta, and (6) Mrs. Archana Puri, Judicial Officers, be appointed as Judges of the Punjab & Haryana High Court. Their inter se seniority be fixed as per the existing practice.


Supreme Court of India

[Collegium Resolution dt. 26-09-2019]

Appointments & TransfersNews

Proposal for appointment of following three Additional Judges of the Chhattisgarh High Court, as Permanent Judges of that High Court:

1. Justice Sharad Kumar Gupta,
2. Justice Ram Prasanna Sharma, and
3. Justice Arvind Singh Chandel

Having taken into consideration all relevant factors including the above-mentioned report of the Chief Justice of the Chhattisgarh High Court, the Collegium comprising of Ranjan Gogoi, CJ and S.A. Bobde and N.V. Ramana, JJ. resolves to reiterate its recommendation dated 8-04-2019 for the appointment of Justices (1) Sharad Kumar Gupta, (2) Ram Prasanna Sharma, and (3) Arvind Singh Chandel, Additional Judges as Permanent Judges of the Chhattisgarh High Court.


[Collegium Resolution dt. 31-07-2019]

Supreme Court of India

Appointments & TransfersNews

Proposal for appointment of following 9 Advocates as Judges of the Rajasthan High Court, but only 2 Judges were recommended to be appointed as Judges of the Rajasthan High Court.

Following are the names that were suggested:

1. Shri Mahendra Goyal
2. Shri Anurag Sharma
3. Shri Farzand Ali
4. Shri Manish Shishodia
5. Shri Ashvin Garg
6. Shri Rajeev Purohit
7. Shri Sachin Acharya
8. Shri Sanjay Jhanwar and
9. Smt. Anita Aggarwal

On the basis of interaction, the material on record and having regard to all relevant factors, the Collegium comprising of Ranjan Gogoi, CJ and S.A. Bobde and N.V. Ramana, JJ. is of the considered view that S/Shri (1) Mahendra Goyal and (2) Farzand Ali, Advocates are suitable for being appointed as Judges of the Rajasthan High Court.

As regards Shri Manish Shishodia, the Collegium is of the considered view that his name deserves to be deferred.

As regards S/Shri (1) Anurag Sharma, (2) Ashvin Garg, (3) Rajeev Purohit, (4) Sachin Acharya, (5) Sanjay Jhanwar and (6) Smt. Anita Aggarwal, having regard to the material on record and all relevant factors, the Collegium is of the considered view that their cases deserve to be remitted to the High Court.

Therefore, Collegium resolves to recommend that S/Shri (1) Mahendra Goyal and (2) Farzand Ali, Advocates, be appointed
as Judges of the Rajasthan High Court. 


[Collegium Resolution dt. 24-07-2019]

Supreme Court of India

Appointments & TransfersNews

Proposal for the appointment of following 4 Advocates as Judges of the Andhra Pradesh High Court and 3 Advocates as Judges of the Telangana High Court:

1 Shri R. Raghunandan Rao (A.P.),
2 Shri T. Vinod Kumar (Telangana),
3 Shri Battu Devanand (A.P.),
4 Shri D. Ramesh (A.P.),
5 Shri A. Abhishek Reddy (Telangana),
6 Shri N. Jayasurya (A.P.) and
7 Shri K. Lakshman (Telangana)

On the basis of interaction, material on record and having regard to all relevant factors, the Collegium comprising of Ranjan Gogoi, CJ and S.A. Bobde and N.V. Ramana, JJ. is of the considered view that S/Shri (1) R. Raghunandan Rao, (2) T. Vinod Kumar, (3) Battu Devanand, (4) D. Ramesh, (5) A. Abhishek Reddy, (6) N. Jayasurya and (7) K. Lakshman are suitable for being elevated to the High Court Bench.

Therefore, in view of the above, the Collegium resolves to recommend that:

(i) S/Shri (1) R. Raghunandan Rao, (2) Battu Devanand, (3) D. Ramesh and (4) N. Jayasurya be appointed as Judges of the Andhra Pradesh High Court. Their inter se seniority be fixed as per the existing practice; and

(ii) S/Shri (1) T. Vinod Kumar, (2) A. Abhishek Reddy and (3) K. Lakshman be appointed as Judges of the Telangana High Court. Their inter se seniority be fixed as per the existing practice.


[Collegium Resolution dt. 25-07-2019]

Supreme Court of India

Appointments & TransfersNews

Proposal for appointment of 8 Advocates, as Judges of the Punjab & Haryana High Court:

1. Shri Jasgurpreet Singh Puri,
2. Shri Suvir Sehgal,
3. Shri Girish Agnihotri,
4. Mrs. Alka Sarin,
5. Shri Inder Pal Singh Doabia,
6. Shri Kamal Sehgal,
7. Shri Puneet Bali and
8. Shri Vikas Bahl

On the basis of interaction, material on record and having regard to all relevant factors, the Collegium comprising of Ranjan Gogoi, CJ and S.A. Bobde and N.V. Ramana, JJ. is of the considered view that S/Shri (1) Jasgurpreet Singh Puri, (2) Suvir Sehgal, (3) Girish Agnihotri, (4) Mrs. Alka Sarin, and (5) Kamal Sehgal are suitable for being appointed as Judges of the Punjab & Haryana High Court.

As regards S/Shri (1) Puneet Bali and (2) Vikas Bahl (mentioned at Sl. Nos.7 and 8 above), the Collegium is of the considered view that consideration of the proposal for their elevation deserves to be deferred. Collegium was also of the view that  Shri Inder Pal Singh Doabia deserves to be remitted to the High Court.

Therefore, the Collegium resolves to recommend that S/Shri (1) Jasgurpreet Singh Puri, (2) Suvir Sehgal, (3) Girish Agnihotri, (4) Mrs. Alka Sarin, and (5) Kamal Sehgal, Advocates be appointed as Judges of the Punjab & Haryana High Court. 


[Collegium Resolution dt. 25-07-2019]

Supreme Court of India

Appointments & TransfersNews

Proposal for the appointment of following 9 Advocates as Judges of the Calcutta High Court:

Advocates

1. Dibyendra Narayana Ray
2. Jaytosh Majumdar
3. Sagar Bandyopadhyay
4. Amitesh Banerjee
5. Raja Basu Chowdhury
6. Manju Bhuteria
7. Vineeta Meharia
8. Lapita Banerji and
9. Sakya Sen

On the basis of interaction, the material on record and having regard to all relevant factors, the Collegium comprising of Ranjan Gogoi, CJ and S.A. Bobde and N.V. Ramana, JJ. is of the considered view that S/Shri (1) Jaytosh Majumdar, (2) Amitesh Banerjee, (3) Raja Basu Chowdhury, (4) Smt. Lapita Banerji and (5) Sakya Sen (mentioned at Sl. Nos. 2, 4, 5, 8, and 9 above) are suitable for being appointed as Judges of the Calcutta High Court.

As regards (1) Dibyendra Narayana Ray, (2) Sagar Bandyopadhyay, (3) Smt. Manju Bhuteria and (4) Ms. Vineeta Meharia, (mentioned at Sl. Nos.1, 3, 6 and 7 above), having regard to the material on record and all relevant factors, the Collegium is of the considered view that their cases deserve to be remitted to the High Court. The Collegium resolves to recommend accordingly.

Collegium resolves to recommend that S/Shri (1) Jaytosh Majumdar, (2) Amitesh Banerjee, (3) Raja Basu Chowdhury, (4) Smt. Lapita Banerji and (5) Sakya Sen, Advocates, be appointed as Judges of the Calcutta High Court. Their inter se seniority be fixed as per the existing practice.

Proposal for appointment of following two Advocates as Judges of the Calcutta High Court:

Advocates

1. Shri Ranajit Chatterjee and
2. Shri Kausik Chanda.

The above recommendation was made by the then Acting Chief Justice of the Calcutta High Court on 10-01-2019, in consultation with his two senior-most colleagues.

On the basis of interaction, the material on record and having regard to all relevant factors, the Collegium is of the considered view that Shri Kausik Chanda, Advocate (mentioned at Sl. No. 2 above) is suitable for being appointed as Judge of the Calcutta High Court.

As regards Shri Ranajit Chatterjee, (mentioned at Sl. No.1 above), having regard to the material on record and all relevant factors including the fact that his average net professional income is below the prescribed income limit, the Collegium is of the considered view that his name deserves to be remitted to the High Court. The Collegium resolves to recommend accordingly.

Therefore, Collegium resolved to recommend Shri Kausik Chanda, Advocate as Judge of the Calcutta High Court.


[Collegium Resolution dt. 24-07-2019]

Supreme Court of India

Appointments & TransfersNews

Proposal for appointment of following four Judicial Officers as Judges of the Delhi High Court:

  1. Shri Talwant Singh,
  2. Rajnish Bhatnagar
  3. Ms Asha Menon
  4. Shri Brijesh Sethi

On the basis of interaction and having regard to all relevant factors, the Collegium is of the considered view that S/Shri (1) Talwant Singh, (2) Rajnish Bhatnagar, (3) Ms Asha Menon, and (4) Brijesh Sethi, are suitable for being appointed as Judges of the Delhi High Court.

Collegium comprising of Ranjan Gogoi, CJ and S.A. Bobde and N.V. Ramana, JJ. resolves to recommend that S/Shri (1) Talwant Singh, (2) Rajnish Bhatnagar, (3) Ms Asha Menon, and (4) Brijesh Sethi, Judicial Officers, be appointed as Judges of the Delhi High Court. Their inter se seniority be fixed as per the existing practice.


[Notification dt. 06-05-2019]

Supreme Court of India