Read Sriram Panchu’s piece here; K. Kannan’s response here; and Panchu’s response to that here.
Sriram Panchu and K. Kannan need little introduction to the readers of these columns. One is a seasoned lawyer and the other, a popular judge; and both of them are drawn together by their common passion for mediation, leading to institutions being established to popularise the practice.
However, over the last week, we have seen their disagreement in these columns over recent developments in that arena. I, of course, stand in the shadow of these giants, who enrolled as advocates around the time of my birth, and my mediation skills are honed in defusing disputes among my three children. Yet, this rank amateur is compelled to put fingers to the keyboard because the tenor of Panchu’s contributions has taken it above and beyond a simple issue of dispute resolution to a much more serious attack on institutional integrity.
Coupled with Panchu’s other piece in the Hindu on June 22, his words have formed a most extraordinary assault on the Supreme Court as well as the reputations of some of its finest sitting and former judges. They have, regrettably, displayed a complete discomfiture with fact and evidence.
The first sally
On June 13, writing in The Wire, Panchu expressed his reservations about retired judges taking to mediation, claiming simplistically that, “The latter (a judge) issues commands while the former (a mediator) facilitates”. He then proceeded – in a patronising tone – to tell us that “We mediators welcome them”, but that they have to earn their spurs “as the rest of us who have been in the field for long”.
He complained that retired judges with little mediation experience are referred cases by their sitting colleagues as ‘post-retirement benefits’ and asserted that these fortune hunters are ‘foisted’ on unwilling litigants. Panchu’s greatest error in this entire narrative is his abject naivete in understanding a judge’s role and philosophy.
Unlike advocates, judges have spent years devoted to resolving disputes and as any bencher will tell you, their first instinct in most cases is to look for a peaceful resolution. Among the various communities keen on becoming mediators, it is judges who would need little or no training. Hundreds of judges across the country have carved out reputations as ‘mediation judges’, the most prominent, of course, being the avuncular Justice Kurian Joseph, who has demonstrated the true force of mediation at the highest levels and set an example for how effective a tool it is.
I need scarcely point out that Panchu refers to no instance to anchor his allegation that former colleagues are being given financial favours, but as one reads further, it is clear that the guns are trained elsewhere. The big bugbear, as far as Panchu is concerned, is the establishment of the International Arbitration and Mediation Centre (IAMC) in Hyderabad. He is critical of the role of sitting Supreme Court judges in setting up such an institution, which includes an erroneous statement about it offering ‘post-retirement sinecures’.
In addition, – and this appears to be the motive for the poison pen – the fact that the institution has made great strides in such a short time with substantial success signifies the “end of India’s mediation movement, for the process will end up being captured by retired judges” and would “create a monopoly”. I would have thought that one who has presided over precisely such a monopoly in the mediation space would be happy to cede that to others – eventually, the mediator’s interests are less important than those of the disputing parties, and if their issues are sorted out consensually and economically by judges or lawyers or psychologists or football players, such a monopoly ought to be a most welcome one.
But, I am getting ahead of myself. If there are ‘judicial stratagems’ at play; if there is such a ‘monopoly’ at the IAMC; and if this is a self-serving financial mechanism for Supreme Court judges.
The facts
Despite Kannan counselling Panchu to check his facts, it is obvious from his rejoinder piece that he did no such thing. I, on the other hand, did and they are as follows:
1. The IAMC is set up as a public trust in accordance with the 2017 report of the Justice Srikrishna Committee which said that infrastructural support ought to be given by the government without any interference in the actual functioning of Alternative Dispute Resolution (ADR) centres. A parallel was drawn with Maxwell Chambers in Singapore, as referring to Pages 81-86 of the report will show.
Also read: ‘Alternative Dispute Resolution Has Potential to Transform Legal Landscape’: CJI Ramana
One may note that the members of this Committee included Justices Indu Malhotra, Ravindra Bhat, P.S. Narasimha and the Attorney General K.K. Venugopal.
2. Clause 4 of the Trust Deed provides that there will be two ‘Life Trustees’ (Justice R.V Raveendran and Justice L. Nageswara Rao); two ‘Ex-Officio Trustees’ (the Chief Justice of Telangana and the Law Minister); and three three-year ‘Term Trustees’ (of which Justice Hima Kohli is one). None of the members of the Trust have any role to play with the selection of arbitrators and mediators and none of them can be appointed as arbitrators or mediators by the IAMC.
3. No trustee receives a sitting fee or remuneration for their work, nor do they receive compensation of any sort from the IAMC. I may add that as I have known both the Life Trustees personally, I reached out to them and confirmed that even their many flights to Hyderabad for the purposes of the Trust were funded out of their respective pockets.
4. Chief Justice Ramana has no role to play in the Trust apart from being the initial author, and so any parallel with (former Union minister for law and justice, H.R.) Bharadwaj and the International Centre for Alternative Dispute Resolution (ICADR) is wholly misplaced.
5. Clause 7 of the Deed stipulates that the governing council, comprising reputed professionals, shall have the final say in all matters of the IAMC and that the CEO shall be charged with day-to-day affairs. With the likes of international leaders like Toby Landau QC and Bernard Eder QC, as well as our very own Nakul Dewan, Promod Nair and Chitra Narayan, it is refreshing that younger stalwarts have taken the reins on this, and it ought to have been encouraged by the elders in the practice.
6. Mediators are appointed only with the consent of parties and if this is not possible, only then is a panel proposed by the CEO in consultation with the governing council. The trustees play no part.
7. A quick glance at the official website of IAMC would show that apart from the truly world-class facilities and technology available at nominal rates, the entirety of the administration fee payable to the Centre for an entire mediation (no matter how long it takes) is Rs 1 lakh. And the maximum mediator fee (unless parties choose outside mediators) is Rs 20,000 per session.
8. Panchu relies on an IAMC quarterly report about 22 matters to refute Kannan’s remark that there have only been two references to mediation by the IAMC. It would behove Panchu to admit his error that, in fact, he and Kannan were the only beneficiaries of the two mediation references to the IAMC, which together consisted of a batch of 21 cases (and not 22 references). The remaining one was an arbitration reference.
9. Not a single judge has been appointed as a mediator, contrary to the phantom spectre outlined by Panchu of their veritable monopoly.
10. Even in these two mediation references, it was the parties that chose their own mediators, and these were, in fact, confirmed by the IAMC with independent fee schedules which were almost 15 times that of the IAMC’s roster.
11. The IAMC has begun conducting refresher and training courses for ADR candidates at around Rs 2,500 for a 15-hour course run by pre-eminent trainers like J.P. Sengh and Uma Ramanathan. This is also a source of disgruntlement for those who have been running similar sessions for Rs 75,000 or more.
12. There has been no mediation reference by the Supreme Court under the rules of the IAMC.
The restatement of values of judicial life
After having looked at this swathe of irrefutable evidence, would it be accurate to say that this is a “misuse of judicial office to receive largesse from the government and to carve out post-retirement sinecures and benefits”?
The five principles of the Justice Verma Restatement that Panchu alludes to repeatedly have absolutely no application here as there are no gifts, business or funds which undermine the people’s faith in the judiciary. However, by the same meter, it seems odd that such norms are being quoted by one who has received such largesse, courtesy of the IAMC. It would have been more appropriate to have no truck with an entity for which one harbours such hostility.
The unkindest cuts
“Instructions appear to have gone out to judges of the National Company Law Tribunal (NCLT) to refer cases to this newly established centre, and they have obliged,” wrote Panchu off the top of his head. “Similar referrals have been mooted in the First Court at Tilak Marg,” he added, making it seem like the entire Supreme Court is subject to such dictates.
These ad hominem attacks are quite shocking, and are echoed in the piece by him in the Hindu on June 22 where he shares a distasteful rumour concerning Justices Lalit and Chandrachud which implies governmental preferences among our senior most judges. I find it difficult to reconcile all these careless observations with the respected professional that we have all known and admired for many years.
Winston Smith, that tragic protagonist of George Orwell’s 1984 famously described ‘DOUBLETHINK’ as, “To know and not to know, to be conscious of complete truthfulness while telling carefully constructed lies, to hold simultaneously two opinions which cancelled out, knowing them to be contradictory and believing in both of them, to use logic against logic, to repudiate morality while laying claim to it.”
It is inevitable that innovation divides people – it changes things around them, upsets the status quo and invites debate. It is understandable that it invokes emotions from those who are most affected and that they will be exercised by the probable consequences. But even in that moment of vexation, one must reflect on the great damage that can be caused to beloved institutions and reputations when an impassioned response turns impetuous.
The author is a senior advocate of Supreme Court of India.
This article was first published on Live Law.