History of Legal Education in India: Guest Post by Adv. Devadas T.M., LL.M. III Semester, NUALS

STRIPPED LAW thanks Mr Devadas T.M. for sending his guest post. Devadas T.M. is a 2nd year student of LL.M. at NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES, Cochin. The following is the text of Mr.Devadas's post.

History of legal education in a democratic society cannot be over emphasised. Knowledge of law increases one understands of public affairs. Concept of ‘Dharma’ in Vedic period also includes dispensation of justice by King who acquired specific legal knowledge. There was a time in the human evolution when law was a part of ethics and religion, of morals and values, of philosophy and consciousness. Ancient civilization particularly that of India, conceived a legal order based on the compendious Sanskrit expression “Dharma”. The role of ethics and philosophy in explaining social problems and giving directions for social action is not adequately appreciated today. However, in making and interpreting law, no society can afford to ignore Ethics. One can say that law is an applied ethics. No civilised society can be structured without developing its moral fibre and consciousness either through law, religion, education or other instruments of social control. The gurushishya parampara has existed ever since Vedic era making education an integral part of human development. It is education which ultimately results in shaping or transforming the whole society in to human civilization. Spiritually, it is believed that the life on the earth is regulated by the laws of the Lord or the Divinity. It is 'rule of law', that draws the essential difference between human society and animal world. It is the legal education that plays a pompous role in promoting social justice. Education or awareness of laws, characterize the lawyers as 'Social engineers'.

A study of history reveals that in modern times shows that it is intellectuals alone who can give leadership to the nations. We can find that it was the lawyers who gave leadership to most nations. For example, during the great American Revolution of 1776, most of the American leaders were lawyers e.g. Thomas Jefferson, John Adams, James Madison etc. In the great French Revolution of 1789, about two-thirds of the members of the French National Assembly were lawyers, e.g. Robespierre, Danton etc. In the American Civil War of 1861-65, the American President who led the nation to victory over slavery was a lawyer-Abraham Lincoln. In the Russian Revolution of 1917, the leader of Russia was Lenin who was a lawyer. In our own independence Struggle, most of the leaders during that period were lawyers e.g. Mahatma Gandhi, Motilal Nehru, Jawaharlal Nehru, Sardar Patel, CR Dass, Dr. Rajendra Prasad, Rajaji etc. The lawyers who gave leadership to the nations and not doctors or engineers or teachers or other professionals because of the reason those lawyers are intimately connected to the Society. Doctors deals with medical problems, engineers deals with technical problems, teachers deals with academic matters etc, but it is lawyers who deals with the entire society.

In modern India legal education came in to existence in 1885. Numerous committees were foamed to consider and propose reforms in legal education. Constitution of India basically laid down the duty of imparting legal education. Advocates’ Act, 1961 which brought uniformity in legal system. In the changed scenario the additional roles envisaged are that of policy planner, business advisor, negotiator of any interested groups etc. In the Era of Globalisation legal system in India include catering the needs of new brand consumers or clients namely foreign companies, collaborators etc. Strengthening our legal education system is need to face the new challenges. Imparting of legal education has always been considered as one to the noblest profession. Legal education which is part of general education cannot be viewed in isolation. Today, legal education derives its impetus from the economic, social and economic and political set up of the society.

Significance of Legal Education

'Law is the cement of society and an essential medium of change'. The significance of legal education in a democratic society cannot be over-emphasized. Knowledge of law increases one understands of public affairs. Its study promotes accuracy of the expression, facility in arguments and skill in interpreting the written words, as well as some understanding of social values. It is pivotal duty of everyone to know the law. Ignorance of law is not innocence but a sin which cannot be excused. Thus, legal education is imperative not only to produce good lawyers but also to create cultured law abiding citizens, who are inculcated with concepts of human values and human rights.  We must have a legal education which can fulfil the need of the society and country as well. We are no longer laissez-faire but a welfare State and in welfare society law plays a very important role in every affair of human being. Law serves as an important instrument to achieve socio-economic development[i]. Today law is not viewed merely as an instrument of social control but also an instrument of social change. The aim of legal education should be not only to produce good lawyers but also create cultured, law abiding citizens who are inculcated with concepts of human values and human rights who can serve humanity in various capacities such as, administrators, law teachers, jurists, judges, and industrial entrepreneurs etc. As far as creation of good advocates and solicitors is concerned, the legal education should aim at equipping them with legal techniques and professional skills. An Advocate must be tolerant, must listen patiently other man’s point of view and not hazard opinions without some basis. He should be rational, secular keeper, willing to work hard, competent to communicate having good expression, must have critical understanding of human institutions and values. Legal profession is objectively in the position of producing Statesmen. This is due to two reasons

(1) Lawyers belong to an independent profession. They are not subordinate to the government or to anyone else.

(2) They are directly in contact with society in its entirety as they have to deal with all kinds of problems of people from all sections of society, unlike say, doctors who are confined to technical problems. Hence lawyers are the people who are most conversant with the problems of society as a whole.

 A well administered and socially relevant legal education is a sine qua non for a proper dispensation of justice. Giving legal education a human face would create cultured law abiding citizens who are able to serve as professionals and not merely as business men.

The quality and standard of legal education acquired at the law school is reflected through the standard of Bar and Bench and consequently affects the legal system. The primary focus of law schools should be to identify the various skills that define a lawyer and then train and equip its students with requirements of the field of law.

History of Legal Education

Legal historians record instances of legal practitioners indigenously known as ‘Pleaders’ or ‘Niyogis’ representing parties in litigation at least from the time of Manu Smriti.  There are difference of opinion on the exact role these ‘lawyer’ played in ancient times and whether they aware at all organized as a profession. Legal system in India is the natural outcome of its deep roots in ancient Indian traditions. It has existed in India from the dawn of Aryan civilization. But there are different viewpoints in the matter of legal education in ancient India. Dr.Kane quotes Sukraniti IV 5, pp.114-117 to say that a person appointed to represent a party should get as his wage 1/16, 1/20, 1/40, 1/80, 1/60 part of the amount in dispute. K.P.Jayaswal observes that professional lawyers existed in India at least from the Manu Smriti. According to Dr.Kane, a person well versed in Dharma Shastra and procedure of law could be appointed as the representative. The King should punish any representative who took wages without having these qualifications. According to P.V.Kane there could be some people who represented others in the Kings Court, but the opinions of such legal experts were not binding on the King.

Legal Education in Ancient India:

In ancient India law was understood as a branch of Dharma. It is difficult to draw a distinction between secular law and religious ordinances in Ancient India[ii]. The Vedas were the original sources of law, and the Smritis announced the message of Vedas and Smritikars were great jurists. Smritikars, commentators and Nibandhakars [essayists] were the legal guardians of law. King made laws were also interpreted, thus, the commentators were virtually law-makers. Sadachara, custom, Nyaya or Yukti were the base of legal process in Ancient India. The King was advised by a Sabha which had both advisory and executive functions. The parishad was an expert committee comprised of ministers of officials, generally Brahmans, who advised the King authoritatively on law.[iii]

 The concept of dharma, in the Vedic period, can be seen as the concept of the legal education in India. Although there is no record of formal training in law, the dispensation of justice was to be done by the king on the basis of a self-acquired training. Justice was also administered by the King through his appointees who in turn were persons of known integrity and reputation of being fair and impartial. The guiding force for the King or his appointee was the upholding of the Dharma.

Legal Education in British India

Britishers came to this country for the purpose of trade, which they started through a company popularly known as East India Company formed in 1600 in England. In the beginning the courts were presided by merchants who were having very rudimentary knowledge of law, but later on legally trained persons were put for the job.

First British court was established in Bombay in 1672 by Governor Gerald Angier. The first Attorney General appointed by Governor was George Wilcox who was acquainted with legal business and particularly in the administration of estates of deceased persons and granting of probate. He made provision for parties to be represented by attorneys and fixed the counsel fee a little more than Re.one. First concrete step in the direction of organising legal profession was taken through Regulating Act of 1773 which empowered to enrol advocates and Attorneys-at-law to the Supreme Court.  The Supreme Court was established in Fort William in Bengal through a charter issued in 1774. At that time Indian Lawyers had no right to appearance in the Courts. The position was same when the Supreme Courts with the same jurisdiction and power were established at Bombay and Madras later. The Bengal Regulation VII of 1793 which created for the first time a regular legal profession for the company’s courts, which allowed the appointment of Vakils or native pleaders in the courts of civil judicature in the provinces of Bengal, Bihar and Orissa. In 1861 three High Courts were established at Calcutta, Madras and Bombay. At this time three bodies of practitioners viz, advocates, Attorneys and Vakils were in existence.  Advocates were the barristers of England or Ireland but the Vakils were Indian Practioners. According to Clause 19 of Letters Patent 1865 of the High Court of Calcutta empowered the court to approve, admit and enrol such and so many Advocates, Attorneys and Vakils as the High Court shall deem fit. As already state Supreme Court not allowed but High Courts were allowed them which increased the prestige of Indian Lawyers. Legal Practioners Act, 1879, provided for enrolment to only those practioners who had taken LL.B degree from Indian Universities. Under Section 41, the High Court could dismiss any advocate or suspend him from practice by giving an opportunity to defend him. Bar Councils Act, 1926 unified two grades of legal practioners, the Vakils and Pleaders, by merging them in the class of advocates. It also provided for making rules for giving facilities of legal education and training.

The pattern of legal education which is in vogue in India was transplanted by the English; after the establishment of their rule in India. Formal legal education in India came into existence in 1855 when the first professorship of law was established at the Government Ephistone College in Bombay and Madras and Hindu College at Calcutta.  At that time the primary aim of legal education was to equip law students so that they could help the lower courts and the High Courts in the administration of justice by enrolling themselves as Vakils or becoming judicial officers, and thus serve the interests of the Administration.[iv]As majority of the population was rural and illiterate, the need was felt to bridge the gap between the existing law and the uneducated masses crying for justice, by rendering importance to formal legal education.  Initially a law school had to be a self – financing institution, and if possible a money making concern so that it could feed the teaching of other disciplines in the University. There is no tradition of legal research and academic legal training. In the year, 1857 legal education was introduced as a subject for teaching in three universities in the presidency towns of Calcutta, Madras and Bombay. Thus, a beginning of the formal legal education was made in the sub-continent. The language of the British statutes being English, so any Indian who learnt English could study law and was considered qualified to practice the profession. At that time law classes were attached with arts colleges. However, if one aspired to something higher, he could go to England and join the Inns court, provided one could afford it.

For almost a century from 1857 to 1957 a stereotyped system of teaching compulsory subjects under a straight lecture method and the two year course continued. The need for upgrading legal education has been felt for long. Numerous committees were set up periodically to consider and propose reforms in legal education such as

·        Calcutta University Commission [1917-1919],

·        University Education Commission, was set up in 1948-49,

·        In the year 1949 the Bombay Legal Education Committee was set up to promote legal education. The All India Bar Committee made certain recommendations in 1951.

·        In 1954, XIVth [14th] Report the Law Commission (Setalvad Commission) of India discussed the status of legal education and recognized the need for reform in the system of legal education and made certain recommendations.

1.      Only graduates should be eligible for legal studies.

2.      The theory and principles of law should be taught in the law schools and the procedural law and the law of practical character should be taught by the Bar Council.

3.      The university course should be for two years and the Bar Council training should be for one year.

4.      The principal method of teaching being lecture to be supplemented by tutorials, seminars, moot courts, and case methods.

5.      Admission to law schools should be restricted on merit and seriousness.

6.      All India Bar Council should be empowered to ascertain whether law colleges maintain the requisite minimum standards and should be empowered to refuse recognition for law colleges.

The recommendations accepted by All India Law Conference [1959] and also the All India Law Teachers Association. After the year 1961 the Bar Council of India was empowered to lay down standards of Indian Legal education. In 1967 this body established a uniform three years LL .B Course with annual examinations and prescribed compulsory and optional subjects to be taught at LL.B level. Most of these subjects were traditional topics and there is no guidance relating to curriculum planning.

            It depicted a very gloomy picture of legal education. It was only from 1958 that many universities switched over to three year law degree courses. It was only by 1967, that it became onerous task for the three year law colleges to include procedural subjects into the curriculum of their law school.

Historical Background of Legal Education in Independent India

With the Independence the situation has completely changed. In 1950 we gave ourselves democratic foam of government. The rule of law became the foundational doctrine.  It is also clear that a polity based on rule of law would require a legal profession sufficiently skilled and possessing knowledge of laws and their principles in order to maintain and preserve the legal system.

The Advocates’ Act, enacted in 1961, became the focal point of the legal education system presently in existence. The Bar Council of India Rules, inducted under The Advocates’ Act 1961, lays down the curriculum for imparting legal education throughout India and these said Bar Council of India Rules have been governing the procedural aspects of legal education, including, but not restricted to, the subjects to be taught, mode of examination to be conducted, the various Degrees to be conferred on successful students and the like. It was only in 1967 that it became the burdensome task of the three year law colleges to include procedural subjects into the curriculum of their law school. The monologue lecture scheme adopted in law schools, where practical training is either totally neglected or marginally implemented at the level of Moot Courts, Court visits and legal research will not make good lawyers in today’s scheme of legal education.

Rules on Legal Education, which were incorporated into the pre-existing regulations, have been amended from time to time. There were demands for a consolidated latest version of the Rules under Part IV on standards of Legal Education and Recognition of Degrees in Law for admission as Advocates from Universities and Colleges teaching Law in the Country. In response to popular demand, the Bar Council of India published the Rules in its final shape as applicable from 30 November 1998.

The minimum qualification for being an advocate is an LLB Degree, generally a three year course, which can be obtained after graduation in other disciplines. A debate as to its efficacy in the recent past led to a proposal of a five year integrated course after an intermediate (10+2) examination (from 1st class to 12th class - total period of 12 years of study). The three year course itself came to be restructured into a semestered system and several papers came to be included and excluded as per the Bar Council Guidelines. Hence, the Council today allows both the 3 year course and 5 year course to continue. The Advocates’ Act, enacted in 1961, became the focal point of the legal education system presently in existence. The Bar Council of India Rules, inducted under The Advocates’ Act 1961, lays down the curriculum for imparting legal education throughout India and these said Bar Council of India Rules have been governing the procedural aspects of legal education, including, but not restricted to, the subjects to be taught, mode of examination to be conducted, the various Degrees to be conferred on successful students and the like. It was only in 1967 that it became the onerous task of the three year law colleges to include procedural subjects into the curriculum of their law school. The monologue lecture scheme adopted in law schools, where practical training is either totally neglected or marginally implemented at the level of Moot Courts, Court visits and legal research will not make good lawyers in today’s scheme of legal education.

Agencies Regulating Legal Education.

The Constitution of India basically laid down the duty of imparting education on the states by putting the matter pertaining to education in List II of the Seventh Schedule. But it now forms part of List III, giving concurrent legislative powers to the Union and the States. Legal profession along with the medical and other professions also falls under List III (Entry 26). However, the Union is empowered to co-ordinate and determine standards in institutions for higher education or research and scientific and technical institutions besides having exclusive power, inter alia, pertaining to educational institutions of national importance, professional, vocational or technical training and promotion of special studies or research.

      Empowered by the Constitution to legislate in respect of legal profession, Parliament enacted the Advocates Act, 1961, which brought uniformity in the system of legal practitioners in the form of Advocates and provided for setting up of the Bar Council of India and State Bar Councils in the States. Under clause (h) of sub-sec (1) of Sec.7 of the Advocates Act, 1961 the Bar Council of India has power to fix a minimum academic standard as a pre-condition for commencement of a studies in law . Under clause (i) of sub-sec (1) of Sec. 7, the Bar Council of India is also empowered "to recognize Universities whose degree in law shall be taken as a qualification for enrolment as an advocate and for that purpose to visit and inspect Universities". The Act thus confers on the Bar Council power to prescribe standards of legal education and recognition of law degrees for enrolment of persons as Advocates. However, for promoting legal education and for laying down standards of legal education, the Universities and State Bar Councils must be effectively consulted. The University Grants Commission has in the course of time evinced interest in improving legal education and has taken various steps towards at end, through adequate funding, creating of senior posts and other means.

Commissions, Committees and Statutes.

The objectives of commissions, committees and reports etc was to give their recommendations on reforming legal education in India. The main questions before all the committees, commissions and seminars etc. Were,

1.      What should be the pattern of the legal education be impacted by law colleges and law faculties of the universities to fulfil their mission.

2.      Should it be exclusively academic and theoretical or shoud it is exclusively practical and procedural?

3.      Should it be meant for any research purposes of law?

First Indian University Commission, 1902

Recommendations of Chagla Committee, 1910

Bills on Legal Education 1936-49

Bombay Legal Education Committee, 1949

All India Bar Committee, 1951-52

Rajasthan Legal Education Committee, 1955

Law Commission of India, 1958

Advocates Act, 1961

Gajendra Gadkar Committee, 1964

All India Seminars on Legal Education, 1972

Establishment of Bar Council of India Trust, 1974

Legal Education Seminar, Bombay, 1977

First National Convention on Legal Education, 1977

National Conference on legal Education, Hyderabad, 1981

All India Law Teachers Conference, 1981

Report of Bar Council of India, 1982

All India Council for Technical Education Act, 1987

Report of the Curriculum Development Centre in Law, 1990

Bar Council of India Training Rules, 1995

Report of Professional Legal Education Reform Committee, 1996  

The Journey of Legal Education, from the crossroads to modernization

Prior to the introduction of five year law course, most of the students who performed well in their Intermediate Education aspired to study medicine, engineering, computers, business management and accounting. Law as a profession and legal education as a discipline was not a popular choice of the students. Unlike India, the situation prevalent in England, America and in many other developed countries is convincingly different. The admissions to law schools in these parts of the world are highly competitive. The end result is that the 'creams' among students opt for law by choice and not as the last resort and thus richly contribute their Shares to the society as lawyers, judges, paralegals and academics.
Though, five year law schools are doing their bit to bring about a change; but more effectively the perspective of prospective law students can be changed by a healthy pre-legal education at the school level.

New Challenges to the Legal Education in India:

Half a century ago, the main purpose of university legal education in India was not the teaching of law as a branch of learning and as a science but simply to impart to students a knowledge of the black letter law, that is, certain principles and provisions of law to enable them to enter the legal practice exclusively for local needs. Gradually this perception changed and the process of reform in law and legal education was initiated. The real break came in 1990s when the new challenges posed by scientific and technological revolution and greater interaction between nations, trade in goods and services, information technology and free capital flow across international boundaries made the world a global village. Consequently, the concept of “local practice” widened to that of “transnational practice” in the context of globalisation and opening up of most of the economies of the world.

Roscoe Pound directed to particular attention new aspect of the lawyers’ role in modern society. He said that the worldwide economic unification is challenging the self sufficiency n the systems of law. He pointed out that law transcended local and political limits and has become an economic necessity. He said “Even more the development of industry carried on with instrumentalities and under conditions increasingly dangerous to life and limb and under conditions creating ecological problems and the mechanizing of every activity of life likewise threatening injury to everyone, have been creating new legal problems calling for revision of the old doctrines and finding out a new means of promoting and maintaining a general security......thus the science of law must be increasingly comparative. Whether we are dreaming of a world law or thinking of further development of our own law, to suit to the worldwide problems of general security in the present and immediate future, the methods of jurist must have a base of comparison. Comparative law and international law have achieved such vital importance in current life that they have become an essential part of legal education. The lawyer of today has to play a role in influencing world policies and building up the future of mankind.”[v]

How should the legal profession and legal education respond to the new challenges? Never before in history has the need for sound thinking and planning on all issues been felt so intensely as today. Unless the topics of universal application are integrated into legal education in developing countries, our lawyers and those of other countries would not be able to compete in the transnational marketplace. In the present day, an innovative programme of integrated interdisciplinary legal learning and in the new areas such as Comparative Law, information technology, intellectual property, corporate governance, human rights, environment, and international trade law, investment, and commerce, transfer of technology, alternative dispute resolution and space is important. Comparative Legal education for professional excellence is needed in these and other areas on a global basis.

The world's problems require international co-operation and solutions, especially after the initiation of the liberalisation and globalisation process in today's world of increasing international trade and inter-dependence. The recent trend is that most of the agreements are construed internationally and the member countries are obliged to implement them at the domestic level. It is necessary for lawyers to understand the political, cultural and social influences on the legal systems of other countries and, by using that knowledge, to forge strong relationships between parties. Some observations of David Gerber are apposite in this context. For instance, Gerber calls for greater attention to theory in the broad sense of conceptual structure, because theories are the mechanisms for structuring information and knowledge effectively. The object of the entire exercise is to structure knowledge about foreign legal systems. Analogous to this viewpoint is the model suggested by Ugo Mattei. He argues for a classification of legal systems, which he refers to as taxonomy of legal systems for the purpose of learning from each other by rethinking the traditional boundaries drawn in the context of changing nature of global politics. This situation necessitates revisiting the classic categorisation of legal systems as civil, common and socialist.

For a new beginning, one has to think within the paradigm of change and bring to the forefront the need for developing new approaches to the ongoing challenges posed by globalization, which should be prioritized in the framework of legal education in a country such as India, in order to cope with the current and future pressures.

---

[i] Maxwell Cohen, ‘Condition of Legal Education in Canada”, 28 Canadian Bar Review, (1950) p.249 referred in Legal Education in India: Some suggestions AIR 1999 Journal 168 at p.169

[ii] S.K.Sharma, “Legal Profession in India” Sociology of Law and legal Profession, Ed.(1984) p.43 and also see P.V.Kane, “History of Dahrmasatras,6 volumns, Poona, 1930-62

[iii] Derret J Duncan.M., “Essays in Classical and Modern Hindu Law.

[iv] Legal Education in India: Some Suggestions, Dr.K.P.Singh, AIR 1999 Journal 168 at p.169

[v] Legal Education: Modern Trends and Challenges” , by Dr.Shobha Saxena, AIR 1999 Journal at p.160

Proposed legislation on Legal Professionals - A back-door, but welcome, entry for foreign lawyers?

The proposed legislation

The Ministry of Law and Justice has published a draft Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the Interest of Clients and Promoting the Rule of Law) Act, 2010. The ministry invites comments from the public on the same.

By way of background, it may be noted that the National Consumer Disputes Redressal Commission had ruled in D.K. Gandhi v M. Mathias that despite the existence of separate regulatory regime for lawyers under the Advocates Act, 1961, the legal services rendered by Advocates are "services" and hence clients could initiate proceedings against their lawyer under the Consumer Protection Act, 1986. Though the decision has been appealed before the Supreme Court, the matter is yet to be conclusively decided.

The newly proposed legislation creates institutional mechanisms to protect the interests of clients of 'Legal Professionals'. The phrase 'Legal Professionals' has been defined as “Legal Professionals” means the Advocates as defined in the Advocates Act, 1961 and includes the qualified lawyers engaged in legal practice confined to their chamber, engaged in drafting and conveyancing, practitioner of income tax and sale tax and those appearing before the relevant authorities, giving advise to the clients for a fee, gain or reward in the areas of customs, immigrations, trademark and patent services and all other professional services where legal issues are involved. The institutional framework under the Act consists of Legal Services Board and the Ombudsman.

Section 27 of the proposed legislation casts a duty upon the Legal Professionals to extend free legal assistance to "the financially weaker consumers/clients who fall just above the income levels prescribed under Section 12(h) of the Legal Services Authorities Act, 1987". Section 28 mandates that the Legal Professionals "shall provide full information regarding the legal position to consumer / client relating his case" and that "[t]he services of the legal professional shall be in such a manner as to give an opportunity to the consumer / client to make informed choices about the quality, access and value of the legal services he requires". 

What does it have to do with foreign lawyers?

I had discussed in a post on Lex Arbitri - The Indian Arbitration Blog and Critical Twenties how the decision of the Bombay High Court in Lawyers Collective v Bar Council of India held both litigious and non-litigious practices of law (including functions discharged by liaison offices of foreign law firms) to be covered by the Advocates Act and hence to be exclusive domains of 'advocates' registered under the Act. As foreigners cannot be registered as advocates under the Act at present, any form of 'practice of law' by them is prohibited.

Section 35 of the proposed legislation may have a clarificatory effect on the coverage of the Advocates Act. It states: "Until competent regulatory bodies are established by the Central Government or State Government as the case may be, the Legal Services Board shall function as the regulator for the regulatory objectives under this act for legal professionals other than those covered by the Advocates Act, 1961 as enumerated in Schedule I". Schedule I, in turn, contains the following entries among others: "1. Qualified lawyers who are not practicing advocates, doing legal services in their Chambers; 2.Qualified lawyers engaged in drafting and conveyancing."

Thus the proposed legislation, unlike the Bombay High Court, endorses the view that there are aspects of rendering legal service which are not covered by the Advocates Act. Moreover, it expressly spells out work within chambers and drafting and conveyancing as matters outside the purview of the Advocates Act. 

If the Honourable Supreme Court has this legislative clarification before it while deciding the appeal in Lawyers Collective, it is highly likely that the Bombay High Court decision would be reversed.

Thus, this legislation, if passed in the present form will grant a back-door, nevertheless welcome (on why welcome, see my earlier post), entry to foreign lawyers and law firms. 

However, this mode of entry if made available is unlikely to last long as the Board under the Act may be entitled to create licensing requirements for those aspects of legal profession it governs. Therefore, it is likely that the Board will impose licensing requirements similar to those that apply to Advocates.

Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the Interest of Clients and Promoting the Rule of Law) Bill, 2010

Draft for ‘ Legal Practitioners (Regulations and Maintenance of Standards in Professions, Protecting the Interest of Clients and Promoting the Rule of Law) Act, 2010’  – request for suggestions.


Full text of the bill available at Answeringlaw.

Full text of the affidavit by Mr.Prashant Bhushan, in response to the notice of contempt issued by the Supreme Court

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
CRIMINAL CONTEMPT PETITION NO. 10 OF 2009
IN
I.A. NO. 1374, 1474, 2134 OF 2007
IN
WRIT PETITION (c) NO. 202 OF 1995
IN THE MATTER OF:
AMICUS CURIAE      …PETITIONER
VERSUS
PRASHANT BHUSHAN & ANOTHER   …RESPONDENTS

AFFIDAVIT IN REPLY ON BEHALF OF RESPONDENT NO.1  

I, Prashant Bhushan s/o Shri Shanti Bhushan, r/o B-16, Sector 14, Noida, do hereby solemnly state and affirm as under:
1. That I am the first Respondent in this Contempt Petition and am fully acquainted with the facts of this case. I have read and understood the contents of the Contempt Petition filed by Shri Harish Salve in his capacity as Amicus Curiae and my reply to it is as under:
2. From the report in Tehelka, which is relied upon as the basis of the alleged contempt, reliance has been placed on the following sentences: Firstly,

“In my view, out of the last 16 to 17 Chief Justices, half have been corrupt. I can’t prove this, though we had evidence against Punchhi, Anand, and Sabharwal on the basis of which we sought their impeachment”.

This could have been better phrased, but, by the word corrupt, I meant, “of doubtful integrity".
The second part of the interview relied upon is my answer to the question as to whether there were other ways in which judicial corruption manifests itself. In response to which I had said: “There are so many---“. Here again, when I said, “There are so many”, it was only with reference to non financial behaviour, or other kinds of conflict of interest or misconduct by judges. It is in this context that my answer to the question should be understood.
3. I have been involved in the Campaign for Judicial Accountability since 1991 when the impeachment proceedings began against Justice V. Ramaswami. Since then, I have been an active member of the Committee on Judicial Accountability and subsequently the Convenor of the Campaign for Judicial Accountability and Reforms which was set up in early 2007. It has been my understanding at least since 1991, and even prior to that, that there has been considerable corruption in the higher judiciary, the main reason for which has been the lack of credible mechanisms for securing accountability of the higher judiciary. The focus of our Campaign for Judicial Accountability, therefore, has been to generate public opinion for putting in place credible legal institutions and mechanisms for investigating complaints against judges and for holding judges committing misconduct to account. I, along with my colleagues in the Campaign, have always held the view that an independent full time National Judicial Commission should be created for a transparent method for selecting and appointing judges of the higher judiciary, as well as for investigating complaints against them. Copies of some of the resolutions passed in the National Conventions on Judicial Accountability organised by our Committee on Judicial Accountability between 1991 and 2003 to this effect, are collectively annexed hereto as Annexure-A which would attest to these publicly stated perceptions.
4. Our campaign has also repeatedly highlighted the fact that the lack of accountability in the higher judiciary is not only on account of the lack of a credible mechanism for investigating complaints against judges, but also by the virtual prevention of criminal investigation of judges by the Veeraswami judgement. This lack of accountability is further accentuated by the takeover of the power of appointing judges by the judiciary through the SCAORA judgement (Supreme Court Advocate-on-Record Association vs. UOI, (1993) 4 SCC 441). Appointments by the judiciary after this judgement have often been made arbitrarily and with complete lack of transparency. Even after the passage of the Right to Information Act, the Supreme Court has refused to share any information with the public about the manner in which judges have been selected for appointment and transfers. It has gone to the extent of filing Special Leave Petition directly to the Supreme Court against orders of the Central Information Commission asking the Court to disclose information about the manner of selection and appointment of judges. On top of all this, contempt powers have also often been sought to be used to silence outspoken criticism and public exposure of corruption in the judiciary. The Campaign for Judicial Accountability and Reforms has taken up all these issues of judicial accountability and has made constructive suggestions for the legal and constitutional changes required to redress these problems.
In order to build public opinion to bring the required constitutional and other legal changes for securing judicial accountability, it is necessary to freely and frankly discuss the existing state of affairs including the existing state of corruption in the judiciary, including the higher judiciary. In fact, the problem of judicial accountability or rather the lack of it, is mainly with the higher judiciary since the lower judiciary is accountable to the High courts. It has been our perception that corruption in the higher judiciary is not and would not be substantially lower than that in the lower judiciary, since in that case, the High courts would take serious steps to curb corruption in the lower judiciary which can be curbed if the High courts have the will to do it. The recent Ghaziabad Provident Fund scam is a stark illustration of some of the reasons why the higher judiciary is benignly tolerant of corruption in the lower judiciary.
5. Due to my personal observations during more than 26 years that I have been practicing in the Supreme Court and in the Delhi High Court, and also because of my close involvement in the Campaign for Judicial Accountability for the last 20 years or so, I have become aware of a good deal of corruption that has prevailed in the courts in which I have practiced as well as in other parts of the country. In order to develop a perception of corruption in the judiciary in general and particularly in the court where one practices, one does not need to have actual documentary evidence of corruption. This perception is formed on the basis of various kinds of circumstantial evidence surrounding judicial and administrative acts of judges which one learns from ones own experience as well as from the experience of other responsible and reliable lawyers and observers, apart from occasional documentary evidence. Documentary evidence about corruption in the higher judiciary is rarely and only fortuitously obtained, since all investigation into such corruption is prohibited except by the written permission of the Chief Justice of India. However, as one of the active members of the Campaign for Judicial Accountability, I have also had the occasion to examine, sift through, and deal with a large volume of documentary evidence which discloses what in my view must be called acts of judicial corruption. I would like to clarify, however, that financial corruption is by no means the only kind of corruption prevalent in the judiciary, and whenever I use the word “corruption” in relation to the judiciary, it is not used in the narrow sense of financial corruption by way of taking direct bribes, but in a more general sense of anything which corrupts or influences by extraneous considerations, the judicial process. Thus, I regard the act of a judge who decides the cases of a political party or sits in a Commission of Enquiry involving that political party and thereafter, after retirement, gets elected to the Parliament, on the ticket of a political party, as an act of corruption. Similarly, if a judge hears and decides the case of a person, who is so friendly with the judge that his grand daughter’s wedding is held in the judge’s official residence, it ought to be regarded as a case of corruption of the judicial process. So also the judicial acts of a Judge who takes up cases (even part heard cases) of a particular company during vacations to decide in their favour by convoluted reasoning would be clear indicators of corruption of the judicial process. Thus, when asked as to what made me get involved in this Campaign for Judicial Accountability, I referred to my experience with the Judiciary, and in this spirit I said that it was my perception that roughly half of the last 16/17 chief justices have been corrupt. That is my honest and bonafide perception. It is a belief formed on the basis of direct and circumstantial evidence about judicial acts and other acts, as well as on the basis of information gathered from other responsible lawyers and judges including former Chief Justices of India.
6. Such an expression of honest and bonafide opinion about my perception of corruption at the very top of the judiciary cannot be regarded as Contempt of Court. If it were to be so regarded, it would stifle free speech and would constitute an unreasonable restriction on Article 19 (1) (a) of the Constitution. It is the essence of a democracy that all institutions, including the judiciary, function for the citizens and the people of this country, and they have every right to freely and fairly discuss the state of affairs within any institution, and build public opinion in order to reform the institutions. This is what I have always believed, and have, therefore, always freely and frankly expressed my honest views about the state of affairs within the judiciary and what needs to be done to remedy them.
7. It may not be out of place to point out that several responsible observers of the court including former chief justices have publicly and privately voiced their views about the extent of corruption prevailing in the higher judiciary. Newspaper reports of the views expressed by some of the judges including former Chief Justices such as Justice Bharucha are annexed hereto as Annexure-B. The fact that there will be difference in the perception among different persons about the extent and level of corruption prevalent in the judiciary would not make any difference to the question of whether expression of such views amounts to Contempt. In fact, Transparency International, a respected global anti-corruption institution, has also done global as well as national surveys of corruption perception within various institutions in the country including the judiciary, which also showed the judiciary to be perceived by the people as among the most corrupt institutions in the country. Copy of the relevant pages of the report of the Transparency International is annexed hereto as Annexure-C.
8. In this context, it is pertinent to remember the words of Lord Denning in R Vs. Metropolitan Police Commissioner, Ex parte Blackburn (1968) 2 All England Reporter, Page 319, where while dealing with a particularly harsh criticism of the Court of Appeal by Mr. Quintin Hogg, he observed as follows:

“This is the first case, so far as I know, where this court has been called on to consider an allegation of contempt against itself. It is a jurisdiction which undoubtedly belongs to us, but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter. Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For, there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast to make fair comment, even outspoken comment, on matters of public interest.”

It is the application of this doctrine enunciated by Lord Denning that the Contempt of Court jurisdiction of “scandalizing the court or lowering the authority of the court” gradually fell into disuse in UK.
9. It is a mistaken notion to think that the authority or dignity of the courts can be maintained by using the contempt of court jurisdiction to punish and thus stifle public criticism, however harsh, of the judiciary, or even public discussion of the perception of the extent or levels of corruption prevailing in the judiciary, be they at the apex of the judiciary. The dignity, authority and public confidence in the courts or judges cannot be maintained by seeking to silence outspoken criticism or even outspoken expression of perception of corruption in the judiciary. That confidence is maintained by the public perception of the actions of the judiciary and the conduct of its judges, and whether they are perceived to be generally just, fair and in public interest. The public perception of the conduct of the judiciary and its judges is built on the basis of observation over a long period of time and by the shared perception of a large number of people. Any wild accusation or allegations by irresponsible persons or disgruntled litigants are dismissed by the people with the contempt that they deserve. It is only when persons, who are generally perceived to be responsible, are voicing opinion and criticism which is perceived by the public to be responsible and based on facts and circumstances which are relevant, that such opinion or criticism is taken seriously by the people and is going to affect their perception about the judiciary. This is exactly how it should be in a democracy. Any attempt to use contempt of court jurisdiction to silence such voices of criticism or dissent or such airing of corruption perception by such people, would cause far greater damage to the image, the public perception of, and public confidence in the judiciary. It would in fact lead people to suspect that things are more seriously amiss in the judiciary than even they had suspected, and it will engender great resentment and even contempt for the judiciary. Such actions would have exactly the opposite effect of what law of Contempt seeks to prevent.
This is also obvious from the backlash that has followed two of the most celebrated cases of contempt recently. The sentencing of Arundhati Roy for contempt, for merely saying in her reply affidavit (in response to another contempt petition, in which the notice was finally discharged) that for the court to have issued contempt notice on an ex-facie absurd petition showed a disquieting inclination on the part of the court to stifle criticism and muzzle dissent, led to such a backlash that it only succeeded in lowering the image of the Supreme Court in the eyes of the people. Similarly, the sentencing of the journalists of Midday for having written well-documented investigative stories about Justice Sabharwal, a former Chief Justice of India who heard and passed orders for sealing of commercial properties, which had the effect of benefiting his own sons who were in partnership with shopping mall and commercial complex developers, also outraged civil society and the media. The result of the use of the contempt power against these journalists was again to heighten suspicion about corruption in the judiciary. These actions have contributed in no small measure to a drastic increase of the perception of corruption in the judiciary in the eyes of civil society. This has also been accentuated by the eruption of corruption scandals about the judiciary in quick succession recently. The recent judicial scandals involving Justice Soumitra Sen of Calcutta, the Ghaziabad Provident fund scam, the cash at judges door scam at Chandigarh, and the case of Justice Dinakaran, among others have been given a lot of publicity by the media recently. The resentment caused by the use of or threatened use of the contempt power to stifle outspoken comment (as in the Arundhati Roy case) or to silence the exposure of corruption (as in the Midday case), have contributed in no small measure to the increasingly widespread and outspoken coverage of judicial scandals in the media.
In conclusion on this issue, I wish to state that what I have stated about corruption at the apex of the judiciary is what I honestly believe to be true and have said so with a full sense of responsibility. I have not said anything which is at variance with my bonafide belief. Even Mr. Salve has not accused me of making false statements in this regard.
10. Regarding the Vedanta-Sterlite matter, it may be stated at the outset that this question and my answer was in the context of “other kinds of corruption of the judicial process different from bribe taking or financial corruption”. This is why in my response, I have clarified what exactly I meant by “corruption” in this case. If some people have understood my response to the question to mean that I have accused Justice Kapadia of financial corruption, that would be wrong and most unfortunate, for that was certainly not what I meant or intended to say. Justice Kapadia is widely perceived to be a judge of financial integrity and I have no reason to doubt that perception. However, I do believe that Justice Kapadia acted improperly by hearing a matter involving very large financial stakes of a company and proceeding to pass orders on it, while he had shares in the company in whose favour he passed those orders. However, I may not have been impelled to say what I did, if I did not feel that quite apart from the impropriety of Justice Kapadia having heard and passed orders in the case of a company in which he held shares, the orders that he passed were quite extraordinary and totally unwarranted.
11. Consider the orders which were passed, and the facts and circumstances in which they were passed. Sterlite Industries had transferred an Alumina Refinery Project to be built at Lanjigarh, Orissa to its subsidiary company M/s Vedanta Alumina Limited (VAL). Environmental clearance for this Refinery had been granted by the Ministry of Environment and Forest. On 12th May 2005, at the instance of Shri Harish Salve, Amicus Curiae in the case, the Court asked the Centrally Empowered Committee (CEC) of the Court, which is the court’s own expert body to examine this clearance and give its report within eight weeks. The Committee gave a detailed report in September 2005. The CEC in its report, observed that the environmental clearance for the Refinery had been fraudulently obtained by Vedanta without disclosing that the Refinery Project was linked to the mining project. In this Project, the Alumina Refinery required the diversion of 58.93 hectares of forest land for the Refinery and 672.018 hectares of forest land for the mining. After examining the matter in great depth, the CEC concluded that the refinery and the mining projects in this place would destroy the forests, the wildlife, the water sources, and the lives and livelihoods of thousands of a rare and vanishing species of tribals living in this area. The CEC finally recommended:

“32. The CEC is of the considered view that the use of the forest land in an ecologically sensitive area like the Niyamgiri Hills should not be permitted. The casual approach, the lackadaisical manner and the haste with which the entire issue of forests and environmental clearance for the alumina refinery project has been dealt with smacks of undue favour/leniency and does not inspire confidence with regard to the willingness and resolve of both the State Government and the MoEF to deal with such matters keeping in view the ultimate goal of national and public interest. In the instant case had a proper study been conducted before embarking on a project of this nature and magnitude involving massive investment, the objections to the project from environmental/ecological/ forest angle would have become known in the beginning itself and in all probability the project would have been abandoned at this site.   
33. Keeping in view all the facts and circumstances brought out in the preceding paragraphs it is recommended that this Hon'ble Court may consider revoking the environmental clearance dated 22.9.2004 granted by the MoEF for setting up of the Alumina Refinery Plant by M/s and directing them to stop further work on the project. This project may only be reconsidered after an alternative bauxite mine site is identified." 

The CEC also noted that Vedanta started construction on the Alumina Refinery in violation of the guidelines of the MoEF even prior to obtaining forest clearance for the forest land to be diverted for the Refinery. A copy of the CEC’s report is annexed as Annexure D.
12. When the matter was taken up for hearing on 26th October 2007, before the Forest Bench, the Bench, virtually without discussing the CEC report, and without even allowing Mr. Sanjay Parikh, who was appearing for the tribals in a connected Writ Petition challenging the environmental clearance to the Project, to make submissions on the various objections to the project, straightaway proceeded to discuss the terms on which the mining should be allowed to be carried on!
Eventually, after hearing the Counsel for Vedanta, the Orissa Mining Corporation (which was to be a partner of Vedanta in the mining), the State of Orissa (which had granted the mining lease and permission to set up the Refinery Project to Vedanta) and the Counsel for the Ministry of Environment and Forest (which had granted environmental clearance for the Alumina Refinery) and briefly the Junior Amicus, Shri Uday Lalit, the court reserved the judgment. It proceeded to pronounce its order on 23th November 2007, which is authored by Justice Kapadia. In this judgment, it is stated that since Vedanta Resources, UK, the holding company of Vedanta Alumina Ltd., had been blacklisted by Norway for non-compliance of labour laws and human rights, it would not be proper to give this Project to Vedanta Alumina Ltd. However, the judgment proceeds to grant liberty to Sterlite Industries Limited, which is noted in the judgment to be the holding company of VAL, to make an application for this Project! It is astounding as to how the court could even consider granting liberty to apply for this Project to a related company owned and controlled by the same holding company i.e. Vedanta Resources Ltd. UK, which is blacklisted and thus not considered fit to receive any concession by the court. If one subsidiary (VAL) was disqualified on this basis, surely the other subsidiary, Sterlite would also be disqualified on the same logic. Moreover, the court almost totally glosses over the very detailed report of the CEC about the seriously adverse environmental and social impacts of the Project and after merely noting the CEC’s conclusions, goes on to talk about the poverty of the local people living in Lanjigarh including the tribal people. In the words of the court,

“CEC has objected to the grant of clearance as sought by M/s VAL on the ground inter alia that the refinery is totally dependent on the mining of bauxite from Niyamgiri Hills, Lanjigarh, which is the only vital wildlife habitat, part of which constitutes elephant corridor and also on the ground that the said project, including the mining area, would obstruct the proposed wildlife sanctuary and the residence of tribes like Dongria Kandha. According to CEC, Niyamgiri Hills would be vitally affected if mining is allowed in the above area as Niyamgiri Hills is an important water source for two rivers. According to CEC, the project would also destroy flora and fauna of the entire region and it would result in soil erosion. According to CEC, use of forestland in an ecologically sensitive area like Niyamgiri Hills should not be permitted.”
“On the other side, we have a picture of abject poverty in which the local people are living in Lanjigarh Tehsil including the tribal people. There is no proper housing. There are ho hospitals. There are no schools and people are living in extremely poor conditions which is not in dispute.
“Indian economy for last couple of years has been growing at the rate of 8 to 9% of GDP. It is a remarkable achievement. However, accelerated growth rate of GDP does not provide inclusive growth. Keeping in mind the two extremes, this court thought of balancing development vis-à-vis protection of wildlife ecology and environment in view of the principle of Sustainable Development.”

Thus, without discussing and overruling the serious objections of the court’s own expert body of the Project on the forests, the environment, on water, on the lives of tribals and the wild life, in fact, rather cruelly using the poverty of the tribals as an argument to further impoverish them, the court just brushed them aside with the now clichéd rhetoric of providing “inclusive growth.” This when the local tribals who ought to be credited with the intelligence to be the best judges of their own welfare, had been and continue to be totally opposed to the refinery as well as the mining and had filed a detailed Writ Petition against it. The court refused to even consider the writ petition. Worse still, though the issue before the court was only regarding the clearance for diversion of the 58.943 Hectares of forest land for the Alumina Refinery, the court in the next order of 8th August 2008 proceeded to grant clearance for the diversion of 606.749 hectares of forest land for the bauxite mining of the Niyamgiri Hills! This is even before the government had granted environmental clearance or forest clearance for the diversion of the forest in the matter of the bauxite mines. Copies of the courts orders dated 23/11/07 and 8/8/08 are collectively annexed as Annexure E.
13. It was under these circumstances, coupled with the fact that Justice Kapadia had shares in Sterlite, that I made my comments. It may be noted that there were many observers present in the court in the hearing on 26th October 2007 and many e-mails were contemporaneously sent detailing the proceedings. A copy of the detailed note sent the very next day by Mr. Felix Padel, a highly respected social anthropologist working in Orissa for the last several decades and another detailed contemporaneous report by another responsible observer present in court that day about the hearing that they witnessed on 26th October 2007 are collectively annexed hereto as Annexure-F. These are only two of the several detailed reports of the hearing that I had seen and heard when I made my comments on this case.
14. Regarding the issue of Code of Conduct of Judges and the fact that Justice Kapadia had disclosed his shareholding in Sterlite, and since nobody objected, his continuing to hear the case was in accordance with the Code of Conduct and, therefore, not objectionable, I beg to differ. Firstly, Justice Kapadia’s disclosure about his shareholding in Sterlite came only on 26th October 2007, though he had been hearing this case at least from 2005 onwards. Secondly, the disclosure of his shareholding was casually made in the context of Sterlite being a listed company as opposed to Vedanta which is a non-listed company. According to several observers who were present at the hearing, no one expressly was asked and no one expressly said that they had no objections to his continuing to hear the matter. In fact, at the stage at which Justice Kapadia had disclosed his shareholding in Sterlite, the effective party before the court was Vendanta. Sterlite came back into the matter only after the order of 23rd November 2007 where the order itself permitted Sterlite to make an application.
15. Moreover, the only counsel who could have objected and who had an adverse interest to Vedanta in the matter was Mr. Sanjay Parekh who was appearing in a connected Writ Petition on behalf of the tribals. However, he was not permitted to even argue his case, and was told in no uncertain terms that he would not be heard, since the Amicus was good enough to represent the tribals. All the other counsel present i.e. of Vedanta, Orissa Mining Corporation (which was in partnership with Vedanta for the mining), State of Orissa (which had granted the lease) and the Ministry of Environment and Forest (which had granted environmental clearance for the Project) had a common interest. Moreover, the senior Amicus in this case, Mr. Harish Salve, already had a retainer from Vedanta and it was left to Mr. Uday Lalit, the junior Amicus to object or not to object to Justice Kapadia’s continuing to hear the case. The fact that Mr Uday Lalit did not object in no way excuses Justice Kapadia’s non recusal in the matter.
16. It is well settled in India as well as internationally that any Judge who has the slightest pecuniary interest in a case must automatically recuse himself from hearing the case. Shareholding in a company, particularly in a case where the order would have enormous impact on the financial status and thus share values of that company as in the case of Vedanta/Sterlite, is certainly a pecuniary interest.
In Manak Chand Vs. Dr. Premchand, (AIR 1957 SC 425), the Supreme Court held that, “It is obvious that pecuniary interest, howsoever small, it may be in the subject matter of the proceedings, would wholly disqualify a member from acting as a judge”. While saying this, the Supreme Court has followed a long line of English decisions starting with Dimes Vs. Grand Junction Canal, (1852 3 HLC 759) where the judgement of the Lord Chancellor who decided the case of a company while he had shares in the company, was set aside by the House of Lords, observing, “This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such influence.” It has thereafter been consistently held in a long line of English cases that “the least pecuniary interest in the subject matter of the litigation will disqualify any person from acting as a judge” (R Vs. Farrant, 1987 QB 58), (R Vs. Rand, 1866 LR 1, QB 230), (R Vs. Myer 1875 1 QBD 173).
H.M. Seervai has also authoritatively pronounced on this principle in his Constitutional Law of India, where he says:

“Least pecuniary interest in the subject of the litigation will disqualify any person from acting as a judge: the pecuniary interest may be so small that no one will think it likely to produce bias in a judge, e.g. if a judge held shares worth five pounds in a company with a capital of five million; where pecuniary interest exists, the law does not allow any further inquiry as to whether or not the mind was actually biased by the pecuniary interest; the rule applies to judge of the highest tribunal as it does to tribunals and bodies of persons obliged to act judicially or quasi-judicially”.

The basis for this principle is a higher principle which has been clearly stated by Justice Venkatachalaiah in Ranjit Thakur v. UOI and Ors. AIR 1987 SC2386

“The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely. A judgment which is the result of bias or want of impartiality is a nullity and the trial "coram non-judice".
“As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however, honestly, "Am I biased?" but to look at the mind of the party before him.”

The principle of automatic recusal if a judge holds shares in the company is the norm in the US as well. Quite recently, 4 judges of the US Supreme Court recused themselves (due to their shareholding) from a case filed by 50 companies that did business in apartheid era South Africa leading to the automatic affirmation of the lower court’s judgement. A copy of the New York Times report to that effect is annexed as Annexure G.
17. In these circumstances, in my opinion, the Code of Conduct which was internally adopted by the courts, does not provide an adequate justification to Justice Kapadia to continue to hear the case. The consent of lawyers is not a safe basis for deciding whether one should recuse oneself from a case. Most lawyers who appear before a judge every day would be reluctant to ask a judge to recuse himself from a case, even if they feel that there is a serious conflict of interest. This is because asking a judge to recuse himself seems like an expression of no confidence in the ability of the judge to rise above his personal interest. That is why, after this controversy arose, most judges have come to accept that the Code of Conduct does not provide the correct guide for recusal in such matters. Judges should automatically recuse themselves from hearing the cases of those companies in which they hold shares. Recognizing this fact, after this controversy, many judges including Justice Kapadia have recused from hearing cases where they had shares, despite the lawyers saying that they had no objection. Newspaper reports to this effect are annexed as Annexure H.
18. In these circumstances, my comment on Justice Kapadia’s role in the Vedanta-Sterlite matter is a legitimate opinion which I am entitled to express.
19. There is however another important aspect of this contempt petition and the manner in which it has been initiated. This Contempt Petition has been filed by a person who has repeatedly misused his position as Amicus Curiae and has taken briefs/retainers to appear for various private parties in matters in which he has been appearing as Amicus Curiae as well. In the case of Vedanta/Sterlite which is the subject matter of this complaint against me, Shri Salve first appeared as Amicus in this matter, and then took a retainer from Vedanta/Sterlite, after which he asked Shri Udai Lalit to appear as Amicus in the case. For a person who is Amicus and who has not only appeared as Amicus in a matter involving a particular party, to subsequently accept a brief or retainer on behalf of that party, in my view amounts to professional misconduct. Once he has been appointed Amicus in a matter by the Court, he has no business to accept a brief or retainer on behalf of a private party in the same matter. In fact, in my view, in either case, whether he took retainer on behalf of a private party after appearing as Amicus in the same matter or appeared as amicus though he was holding retainer of a private party in the same matter amounts to serious professional misconduct. Even in this application, he has misled the court by consciously concealing his retainership and connection with Vedanta/Sterlite, once again misusing his position as Amicus. For this reason alone, this application filed by him should not be entertained. In fact the Court should discharge him as Amicus in the matter. Copies of the orders showing Shri Salve was appearing as Amicus and the newspaper report showing his retainership with Vedanta-Sterlite are collectively annexed hereto as Annexure-I
20. This is however not the only instance where Shri Salve has misused his position and accepted a brief of a private party in cases where he is also acting as Amicus. He was Amicus in the forest matter when the issue of the Delhi Ridge and constructions of hotels/shopping malls on the Ridge came up before the Forest Bench. He still chose to take up a brief of M/s Unison Hotels which involved construction on 92 hectares of forest land on the Ridge. Subsequently, in another Writ Petition of Mr. Santosh Bhartiya challenging the construction by Unison Hotels (now called the Grand Hyatt Hotel) on the Delhi Ridge, Shri Salve appeared again in the matter, this time for the DDA. Copies of orders in the aforementioned cases related to Vasant Kunj Ridge area and the officer report dated 06.12.06 in Ridge Bachao Case are collectively annexed hereto as Annexure-J.
21. In the case of the construction of statues in the Noida Park, Shri Salve appeared as Amicus, though he had already been appearing on behalf of the UP Government in the same or connected matters involving construction of statues at the Noida Park and at other places. (Writ Petition No. 266 of 2009, Ravi Kant & Another Vs. State of U.P.). Copies of the orders in the two cases showing Shri Salve appearing as Amicus in the Noida Park matter and on behalf of the State of UP in Ravi Kant’s case involving the same park as well as the relevant pages of the petition of Ravi Kant’s case, are collectively annexed hereto as Annexure-K.
22. However, these are not isolated instances of professional misconduct on the part of Shri Salve, who has chosen to style himself as Amicus Curiae in this Contempt Petition. In a large number of cases, Shri Salve has accepted briefs/retainers from one party and thereafter gone on to appear on behalf of the other party by just returning the retainer despite the protest of the opposite party. Some instances of these cases are the case of K.K. Birla Vs. Lodha and the case of Lilavati Hospital (Charu Kishore Mehta vs. Lilavati Kirtilal Mehta M. Trust & ors., SLP (C) No.4911/2007). Copies of the correspondence between Shri Birla and Shri Salve published in Shri Birla’s autobiography to this effect are collectively annexed hereto as Annexure-L. Copy of the order of 26/3/07 and a copy of a newspaper report regarding Shri Fali Nariman’s public expression of outrage at Shri Salve’s totally unprofessional behaviour in the Lilavati Hospital matter where after being briefed by one party, he chose to appear for the opposite party is annexed hereto as Annexure-M.
23. I have been constrained to point out these instances of professional misconduct of Shri Salve in this context because he has repeatedly misused his position as Amicus and involved himself in conflict of interest situations which has influenced the course of justice. 
Deponent
Verification:
I the deponent above named do hereby verify that the contents of the above affidavit are true and correct to my knowledge and nothing material has been concealed therefrom.
Verified at New Delhi on this the 7th day of December 2009.
Deponent 


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