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Over the past 20 years, mediation as a method of dispute resolution has come of age in India. A country which had the panchayat concept in its bloodstream lost it during colonial rule and discovered it again with gusto. The judiciary embraced mediation for its capacity to relieve burdensome caseloads and offer better resolution in appropriate cases. The Bar took to it with enthusiasm, signing up in droves to become mediators, and pursued the new calling with spirit and sacrifice, giving up remunerative professional time to spend long hours at mediation tables pro bono or for minuscule honorarium.
Thanks to these pioneers, the process has now taken its rightful place in India’s dispute resolution landscape and lakhs of litigants are reaping the benefits of quick resolution with fractional cost, restoration of relationships and practical workable solutions. So much so that parliament and government have taken giant strides in the making of a national Mediation Bill, a comprehensive legislation that will professionalise the practice, provide full decretal status to mediation agreements, recognise service providers and training institutes and enable community mediation. It will also implement an important international innovation, the Singapore Convention, which provides for easy implementation worldwide of mediation agreements, thus outpacing by leagues litigation and arbitration when it comes to enforcement. All said, a new chapter is set to be written.
Which is why it is unfortunate that at this time dark clouds appear on the horizon, some cast by members of the higher judiciary.
In the initial years, sensitive and public minded senior judges displayed remarkable vision in incorporating mediation into the formal court system. They created in-house mediation centres, provided space and staff and referred cases, and helped to organise training for lawyers to become mediators and carry it into practice. Their involvement and support was invaluable because Indians look to judges for leads and bearings in the dispute resolution field.
As mediation grew and its practice began to cover disputes of significant value and complexity – especially in commercial and property matters – a few judges after retirement started to practice mediation, some undergoing training courses. Now a mediator is the polar opposite of a judge; the latter issues commands while the former facilitates, always leaving ultimate decision making to the parties. The transition is not easy, and some ex-judges come nowhere near it, but former benchers who can make the shift and are respected for their integrity will see a good mediation practice. We mediators welcome them; they add lustre to, and will become valued members of, this newly emerging profession. They will have to earn their spurs on the same terrain as the rest of us who have been in the field for long.
The problem is a recent trend manifesting itself in different ways – of judges using judicial office to benefit former colleagues, or themselves by way of post-retirement benefits.
The former consists of referring prime cases with large stakes to retired judges, who have little or no mediation experience. This violates a fundamental rule of mediation, which is party autonomy, and one crucial aspect of autonomy is that parties have the right to choose their own mediator because the reposing of faith and confidence in a neutral person is integral to the process. Foisting a mediator on them violates this principle. Secondly, there is a wide array of choice now available in the form of experienced mediators and mediation organisations who have been in the field for 10 or even 20 years. To negate them at one stroke by referring big cases to a former judicial colleague is destructive of a level playing field and a fundamental sense of fairness.
The other deeply disturbing aspect is the recent formation of the International Arbitration and Mediation Centre (IAMC) in Hyderabad. Prominent in it are three judges of the Supreme Court of India – Chief Justice of India N.V. Ramana, Justice Hima Kohli and the recently retired Justice L. Nageswara Rao. The first is the author of the deed of public charitable trust and the other two are trustees, along with some more. These judges did not – and could not – act in an official representative capacity, since the court did not and cannot set up a mediation initiative offering resolution of commercial disputes for a fee. This is not an official body of the state. Nevertheless, the trust has apparently sought land and largesse from the state government of Telangana, which has happily obliged.
The government has given the IAMC possession of 25,000 sq ft of prime commercial built-up space in Hyderabad’s financial district, a most sought after location. It has also handed over to the new mediation centre four acres of land at Hi-tech City, Hyderabad (adjacent to IKEA), the estimated value of which is over Rs 250 crores. Few governments will resist the opportunity to cosy up to a galaxy of serving Supreme Court judges.
Now this is not all. Instructions appear to have gone out to judges of the National Company Law Tribunals – which handle high value commercial and corporate disputes – to refer cases to this newly established centre, and they have obliged, even overriding requests by parties to make the reference to other mediation organisations or individual mediators of their choice. Similar referrals have been mooted in the First Court at Tilak Marg. Needless to say, the creation of a monopoly is underway with every other player left out to dry.
An untested institute with little to show on the credit side has thus racked up cases by leaps and bounds. “In a short span of time,” we are told, the IAMC “has conducted more than 50 hearings, both administered under the IAMC Rules as well as ad-hoc with disputes aggregating USD 400 million.” Success must be earned by hard sustained work, not by judicial stratagems. Any hopes that this was not an exercise to secure post retirement sinecures were dashed by the appointment of Justice Nageswara Rao as chairman of the IAMC right after his retirement from the Supreme Court. Since the author of the Trust is CJI Ramana himself, we are left to ask, as the Roman poet Juvenal did in his Satires, Quis custodiet ipsos custodes. Who, who indeed, will guard the guards? Our judges admonish and lecture us on right and wrong, and we willingly accept what they say because we grant them a higher status as keepers of the codes. So what remains when they transgress the codes and basic norms? Is it permissible for the judicial eye to wield a telescope outwards but be blind when looking inwards?
If this continues, it will be the end of India’s mediation movement, for the process will end up being captured by retired judges. We may take the cautionary example from the field of arbitration, which is marked by inordinate delay and cost, dominated as it is by retired members of the judicial fraternity.
This current judicial foray into mediation also marks a new low in the misuse of judicial office to receive largesse from government and to carve out post-retirement sinecures and benefits. It is distressing when judges take favours and benefits from a government; life teaches us that nothing is non-reciprocal. And the less said the better about members of tribunals who follow instructions, explicit or implicit, contrary to a better sense of judicial discretion. All in all, plenty of discredit and plenty of lines being crossed which ought to be inviolate.
My thoughts go back to Justice J.S. Verma, who headed India’s judiciary in the late 1990s. He formulated the Restatement of Values of Judicial Life. Clause 1 talks of the need to reaffirm the people’s faith in the impartiality of the judiciary. Clause 6 mandates aloofness consistent with the dignity of judicial office. Clause 10 bars acceptance of gifts. Clause 13 prohibits engaging directly or indirectly in trade or business. Clause 14 bars asking or accepting contributions or associating with the raising of any fund for any purpose. Clause 16 is a catch-all, frowning upon any act or omission unbecoming of the high office of a judge and the public esteem in which the office is held. A neutral observer could be forgiven for wondering if the Code is still operative, or if a pared down version has taken its place.
The remedy? The IAMC was ill begun, and wrongly run, and should be shut down. Referrals to mediation by courts and tribunals should go strictly as per wishes of the parties; if necessary a list of recognised institutions can be maintained as an aid to litigants. As for transgressions of the judicial and normative code, deafening silence will not work. If judges are not above the law, and corrective action, then, My Lords, please show us this is so. And as for the fundamental question, Quis custodiet ipsos custodes, that indeed must engage us seriously, given the kind of disappointments we keep getting in our higher judiciary.
Watching the Guards is the challenge of our times. Till 2013, we had no need to ask the question, because Justice Verma was the moral colossus in our midst. He had one remarkable and valuable trait. He spoke his mind candidly and sharply, and whenever the occasion demanded. In this he was in a very small minority. His judicial brethren across the board display restraint, which is fine except when there is a duty to speak out; reticence then becomes more about convenience and less about principle.
One wishes that judges who have risen on the back of public trust bestow thought on their obligation to give back to society by openly demonstrating support for probity and high judicial values, including being critical when occasion demands. They may draw inspiration from Justice Verma. He stands tallest in the judicial firmament because he consistently spoke out and protected the institution. He was the Ace of Spades for the simple trait of calling a spade a spade. His spirit cannot but be restless at these current breaches. Correct yourselves, he would have told the custodians, and tell us how you have done so. We cannot demand less.
Sriram Panchu is a Senior Advocate at the Madras High Court and president of the national association, Mediators India. The views expressed here are personal.
Note: This article has been edited to emphasise that the trust which runs the IAMC is not a government body and that two of the three judges mentioned are members of the trust while the third is author of the trust deed.