Debate: Ex-Judges May Set Up Mediation Centres But Serving Judges Doing So Violate Code of Ethics

The Prevention of Corruption Act penalises public servants when they accept a property without consideration or inadequate consideration from persons with whom they have or are likely to have dealings in their official capacity.

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To read K. Kannan’s piece, to which Sriram Panchu has responded, click here.

On June 13, 2022, The Wire carried my article titled, ‘Thanks to Our Judges, Darkness Now Clouds India’s Mediation Playing Field’ wherein I spoke about unhealthy practices manifesting themselves in different ways – of judges using their judicial office to benefit former colleagues, or themselves, by way of post-retirement benefits.

In response, a piece was published in Live Law on June 22, titled, ‘What The Dark Clouds Bring – Just Not Storm But Rain!’, written by K. Kannan. Mr. Kannan is a senior advocate and a former Judge of the Punjab and Haryana high court  (he is one of the very few former judges who prefers to drop the prefix.)

He has been much admired for his achievements both as a lawyer and a judge, and has been a valued friend and a trusted colleague for many years. Occasionally though, friends finds themselves on two sides of a divide. This provides an occasion to reaffirm respect, to clarify, to modify where necessary, and to affirm boundaries that need to be marked. All these I propose to do.

Mr. Kannan’s piece talks about the virtues of setting up a mediation centre with world-class infrastructure with the leadership and participation of the Chief Justice of India and Judges of the Supreme Court on the Governing Council. He mentions other instances, such as the International Centre for Alternative Dispute Resolution (ICADR) in Delhi and the Delhi International Arbitration Centre, where the Chief Justice of India and Chief Justice of Delhi high court, respectively, are patrons.

“What then, is wrong,” he asks, “with the current Chief Justice of India, N.V. Ramana, setting up the International Arbitration and Mediation Centre (IAMC) in Hyderabad?”

His question, itself, provides the answer. There is no problem if the Supreme Court, as an official institution, creates a mediation initiative for the promotion of the mediation and institutional activities connected therein, and makes it broad-based with senior officials from the court and government, senior mediation practitioners and Bar representatives. Indeed, such a step would be welcome.

The problem arises, as it has done in this case, when three individual judges have got together to form an organisation of their own accord, not in a representative capacity for the court, nor in any other official capacity. The top court has not sanctioned any such institution.

The IAMC is controlled not by the court, but by these three judges and others who they have chosen to be with them. That is the big, crucial difference between an official body, institutionally managed in ex officio capacity by current serving officers on one hand, and on the other, an attempt under the guise of officialdom to start a private, self-controlled initiative that functions like a closed shop and is under the control, in perpetuity, of these judges, even after they have demitted office.

This is a masquerade and let us be blunt about it. This is similar to what H.R. Bhardwaj did when he started the ICADR in 1995. In the nomenclature of the Governing Council, he put ‘Dr. H R Bharadwaj, Union Minister for Law & Justice’ instead of ‘Union Minister for Law & Justice’. By this one device, he managed to assert successfully for many years that even after he demitted office as a Union minister, he continued to be the president of the ICADR and continued to avail of official patronage. It was only recently, after much effort, that this privatisation was put an end to, and the government took control of the institution.

The other question that Mr. Kannan asks is: what is wrong with judges setting up a mediation centre? Nothing, is the short answer, provided you do so after retirement. Everything, is the short answer, when you try and do it during the tenure of your office as a judge.

Kannan does not refer to the Restatement of Values of Judicial Life, authored by Chief Justice J.S. Verma, to which I made reference in my article. Perhaps just as well, because he would have found five uncomfortable points there which militate against the view that he now espouses.

While you are a judge, you must confine yourself to judging and not foray into activities which bring you into dealings with politicians. Nor must you run commercial operations.

While in this vein, why is Kannan not talking about the extraordinary amount of property that the government of Telangana has bestowed upon this Trust? He does not dispute the valuation of 4 acres of land in Hyderabad’s financial district, which is estimated as being upwards of Rs 250 crore. He does not dispute the provision of 25,000 sq. ft. of prime commercial built-up space made available to this Trust by the state government. A Trust, termed as public charitable but a private body all the same, is not an official body of any organ of the State. Judges have been impeached for less.

Attention has also been drawn in forums to the application of the provisions of the Prevention of Corruption Act, 1988, especially Section 11, to this transaction. The Section penalises public servants when they accept property without a consideration or inadequate consideration from persons with whom they have or are likely to have dealings in their official capacity. Read judges, governments, and politicians as actors in the scenario of the Section.

Also read: While in Session: Analysing the Prevention of Corruption (Amendment) Bill

Kannan goes on to ask what is wrong if this mediation initiative is into resolving commercial disputes for a fee. In that one question, if the answer is in the negative, he has destroyed the mediation movement in India.

If sitting judges can create commercial mediation centres while in office, is there any hope for this practice as a profession by the thousands of lawyer mediators and mediators from other backgrounds? Will not judges, who are so minded, quickly move to monopolise the work, rewards and gains if they are allowed to do so?

I am not pitching for pro bono mediation as the mainstay; I work tirelessly to promote mediation as a full-fledged professional practice, and it is my genuine fear and apprehension that such judicial take-overs will destroy this prospect.

Kannan also talks about my being a beneficiary of a referral through the IAMC as though this has anything to do with the issue. I was appointed as a mediator by the IAMC, although I will not describe myself as a beneficiary (no professional should). In that case, the National Company Law Tribunal (NCLT) had made the reference to the IAMC as, no doubt, it was told to do. The IAMC then offered the parties the choice of some mediators from its panel, I am not a member of the panel, and my name was not offered.

I am given to understand that the parties told the IAMC that being unfamiliar with the mediation background of the panel, they would want to interview them before deciding whether to accept them or not. They, however, also told IAMC that if it approached me to be the mediator, there would be no need for an interview because they were well aware of my experience. The IAMC adopted the latter course and requested me to serve as the mediator. I accepted and I am continuing with the assignment.

I must place on record my appreciation for the competence and the value that the IAMC case manager has brought to the mediation which has been of considerable assistance to me.

Kannan further states that only two cases have been referred to the IAMC by the NCLT, Hyderabad, and thereby gives the impression that this body has very little work. This does not correspond to the IAMC’s first quarterly report featured in BW Legal World.

“In this short timeframe, IAMC, Hyderabad has been fortunate to administer a variety of disputes for an aggregate value of approximately USD 400 million, covering a wide spectrum of matters from the energy sector, real estate to family disputes,” the report reads.

The highlights of the BW Legal World report include, “Twenty-two matters (including a batch of matters) have been referred to IAMC, Hyderabad by various courts and tribunals across the country, including two matters from the Supreme Court”; and “The Centre is poised to continue its growth in a new four-acre space in pursuit of its vision and mission, the foundation for which was laid by the honourable Chief Justice of India on March 12,2022”.

Also read: Chief Justice N.V. Ramana Must Finish What He Has Begun

In the beginning of his article, Kannan talked about the need for me to cross-check facts, and I would administer the same caution to him here.

It appears that the current Chief Justice of India has been promoting his institution internationally. On June 21, in his inaugural address delivered at the annual meet of Indo-German Chamber of Commerce on the topic of ‘Arbitration in a Globalised World – The Indian Experience’ at Dortmund, Germany, CJI Ramana is reported to have said that it was at the behest of the ‘Chief Justice of India’ that the International Arbitration and Mediation Centre was set up in Hyderabad.

This is a misrepresentation of facts. This is not under the aegis of the CJI; it is under the aegis of the Sri N.V. Ramana, who happens to be the current CJI. Once again, let us make it clear that the composition of the Council is not ex officio, not institutional, not official, but a set of individuals who currently hold office and will continue to run the show even after demitting office.

If Mr. Kannan takes exception to my saying that the IAMC should be shut down, I have no problem modifying my words. Let there be a full scope exit of the current office bearers, a full entry of ex officio serving senior judges, representatives of the government as well as the Bar, and mediators. Let the institution focus on the development and promotion of mediation and institutional activities for which there is much work to be done, without getting into the commercial aspects, which no official body should do.

If such is to be the case, then I will say that it was ill begun and wrongly run, but the wrong may yet be undone.

To read K. Kannan’s piece, to which Sriram Panchu has responded, click here.

This article was first published on Live Law.

Sriram Panchu is a Senior Advocate and Mediator