My article in The Wire on the impropriety of sitting judges establishing their own institution for commercial mediation and seeking and accepting huge assets from a state government, and of judges favouring former colleagues in the appointment of mediators for high value cases, has predictably raised howls of protest from some quarters.
Justice Kannan authored a rebuttal in LiveLaw, to which I offered a response. We sparred like gentlemen boxers, landed a couple of hooks each and at the end of the round shook hands like all old friends do and must. However, the recent piece in LiveLaw by senior advocate Gopal Sankaranarayanan is of a different kind, marked with vitriol and vituperation.
A flawed command and control centre
What were the main points of my original article in The Wire? That mediation has come of age due to the efforts of thousands of lawyer-mediators with supportive senior judges, but that now major commercial cases are being referred by the courts to retired judges irrespective of their training and experience, ignoring party autonomy and long-standing mediation institutions and individual mediators. If this trend sets in, we can say goodbye to professional mediation being an avenue of satisfying gainful work for everyone else.
Does Sankaranarayanan say this has not happened, or will not happen? No. What does he say? That judges are instinctively great mediators and need little or no training.
Now any first grader in mediation will tell you that judging and mediating are polar opposites, and that you must unlearn the first to become the second. I am truly amazed to read this assertion especially coming from a senior advocate, albeit a freshly minted one.
The second point which is perhaps the real reason for his diatribe is my charge against three judges of the Supreme Court – Chief Justice N.V. Ramana, Justice Nageswara Rao and Justice Hima Kohli – for having set up as their own private initiative the International Arbitration and Mediation Centre in Hyderabad (IAMC). I said that (1) this was not an official venture, it had no Act of Parliament or Resolution of Court as its genesis, (2) it was involved in handling commercial disputes, (3) it was controlled by these three judges and others appointed by the first named, (4) that they would continue even after retirement.
Even more significant was the allegation that the Trust has asked for and received a staggering amount of largesse from the Telangana government, including four acres of land in Hi-tech City, Hyderabad worth over Rs 250 crore and 25,000 sq feet of prime commercial built up area in Hyderabad’s financial district.
Sankaranarayanan does not dispute any of this, and this is what amazes me. A non-official, private venture by the highest judge in the land, with two supporting colleagues. Recipient of Rs 250 crore worth of land and 25,000 sq feet of prime office space from a state government, obviously a prime litigant in their court. And no refutation. Why then such a lengthy piece if the point at issue was to be given the Nelson’s eye?
And then the smokescreens. Sankaranarayanan says my article forms the most extraordinary assault on the Supreme Court. Not at all, sir, it only focuses on the misdeeds of three judges whose actions constitute an assault on the integrity of the institution. It is a common debating trick to hide the offending singular behind the respectable plural, but I am too grey to fall for it.
Also read: Inconsistency in the Judiciary: A Tale of Two Judgments
He then produces a lengthy list of what this fledgeling centre is doing and can do. That’s not the point, sir, don’t go to the periphery, focus on the centre. It’s the flawed genesis and command and control structure that we are talking about, not the office efforts of well-intentioned minions. Replace the trustees with ex officio current leaders of the Supreme Court, government, bar and mediators and then we can talk. Any public service goal taken up by the IAMC did not need the structure created and would survive its retrofitting. Are they willing to step down? If so, this entire controversy ends here and the centre can be focused on the broad institutional work that God knows needs to be done to promote mediation, not running a standard commercial establishment.
There is not much point saying that these judges are not going to mediate; we are talking about the acquisition of property, power, patronage, largesse and misuse of office to divert work into their own centre. And since he doubts my statement that such attempts for diversion started at the very top, here is the account of what transpired in the Supreme Court as reported in the Hindu on December 18, 2021 wherein the CJI recalled that,
“a few days before the IAMC started, when a heavy dispute between two families, that is the Modi family, had come up before our bench, Sister Justice Hima Kohli was one of the members of the bench. So, we suggested for mediation, and they readily agreed. We set a condition that you have to use the facilities of Hyderabad Mediation and Arbitration Centre. So, you already have got a first case”.
Sankaranarayanan talks about the trustees bearing their own air fare to attend meetings as testimonials to their integrity. Frankly, if I was coming into de facto control of Rs 250 crore worth of prime four acres next to IKEA in Hyderabad, not to mention 25,000 sq. ft office space close by, I wouldn’t mind forking out the airfare.
Lacking explanations and evidence
There is no post retirement sinecure, he says. But he doesn’t explain how Justice Nageswara Rao demits office as a Supreme Court Judge on May 21, 2022, and at his farewell function, the Chief Justice of India remarks that the judge will be heading the International Arbitration and Mediation Centre (IAMC), Hyderabad after demitting office. If that’s not a sinecure, what is?
Sankaranarayanan refers to the report of the Justice Srikrishna Committee to the effect that infrastructural support should be given by state governments to ADR centres. But he fails to tell us how this justifies largesse to initiatives started and run by serving judges. In my view, it is a disservice to Justice Srikrishna to enlist him in of support this argument.
Sankaranarayanan asserts that Chief Justice N.V. Ramana has no role to play in the Trust apart from being the initial author. He may notice that Justice Ramana is now on an extended speaking tour in Germany, USA and the UK at public expense promoting a private organisation.
Analogies are useful. If a sitting chief minister formed his own Trust and gave it hundreds of crores of public assets, how long would it take for the court to throw the book at him? Justice Boman Lentin, that iconic Bombay high court judge, threw an entire library at A.R. Antulay. Just imagine the scenario where judges across the board start following the Leader, and while in service open up their own establishments where commercial arbitration and mediation are handled for a fee, and divert work there.
Judges exist to serve the users
Sankaranarayanan also makes reference to another piece I authored in The Hindu on June 22, 2022 and criticises it. For the sake of completeness, I will deal with it here. I referred to talk doing the rounds about a possible increase in the retirement age of Supreme Court judges; it is of public importance, not a personal matter, and I can’t see why he would consider it distasteful.
That article also drew attention to the glaring deficiencies in the Indian arbitration scene, especially the high fee multiple sittings of retired judges. Sankaranarayanan seems to think that they have a vested right to this money, but I think we all exist to serve the users, the litigation public, and we all know what they think of arbitration.
Also read: How the Courts Played a Part in the Visible Curtailing of Speakers’ Autonomy
The third point was my suggestion that the Chief Justice of India should not come from the ranks of the serving Supreme Court judges but should be drawn from the senior list of the high court chief justices and given a fixed 3-year time. Sankaranarayanan strongly objected to this. However, my simple point was that it makes sense to keep judges completely free of expectation of higher office, legitimate or otherwise, so that the oath of rendering justice without fear or favour can be lived up to without doubt or question. If we look at the list of Chief Justices of India in this century, we find blemished men galore interspersed with honourable exceptions, and this must tell its own tale. In any event, that article is of the kind meant to stir thought and start a discussion – a stream of consciousness entry – and there is no need to go on the warpath because of it. I am happy to change and modify my views, provided the response is made in polite and decent fashion.
The personal
I could rest here but I have to deal with the many poisoned darts aimed at my person, regrettably for him, all wide of the mark.
First, that I have some kind of a monopoly in having matters referred to me in mediation by the courts. In fact, I have spent the bulk of my time in building up mediation in India – speaking and writing to create awareness, talking to judges and lawyers all over the country, setting up systems and procedures for court annexed mediation, training mediators by the thousands, mentoring them, writing the books that are standard instruction manuals. I am far away from exercising a monopoly in court referred cases, preferring to guide and mentor junior colleagues. I have mediated disputes that are referred to me by their lordships at the request or with the consent of parties; that number is not large although they include significant private and public disputes.
It is always gratifying that senior judges for whom I have deep respect have seen fit to repose confidence to me. In all these I have given my best, even if it means I have to forego my professional practice lawyering and private mediating work for long stretches of time. I have never counted the rupees lost for that never does, and never should, enter the equation. I was involved in mediating the Ayodhya dispute for the most part of 2019; I had no income then from court cases or mediations because everyone knew I would not accept any engagement while being so engaged. The court did not fix a remuneration for me, and rightly so; it was the world’s most contentious dispute between two of its major communities; payment has no place in the equation. Public service has always meant more to me than private reward. In this, I have long been guided by the creed of the 3rd Century Stoic Philosopher Roman Emperor Marcus Aurelius – “To whom much is given, much shall be taken from”.
Sankaranarayanan also makes much in a related piece about my being a high fee charging lawyer so let me tell him this. Yes, I am a successful lawyer in private practice, but there is a difference. Which is that virtually all my life I have combined standard private practice with deep and substantial pro bono work. First, in establishing one of India’s premier consumer and environmental groups, and then in undertaking a range of public interest litigation in environmental, corruption, good governance issues, at a time when it had not become fashionable to do these cases.
From 1991, I started my odyssey in mediation which I may say here took 14 years in the wilderness to build up awareness, demonstrate success, undertake near evangelical efforts to persuade, till the heavens opened in 2005 and a chief justice of the Madras high court willing to think out of the box, Justice Markandey Katju, had the vision to create India’s first court annexed mediation centre in 2005 in the Madras high court. Asking me to head it, he said – “I will give you space and staff and refer cases, the rest you have to fend for yourself; I have no funds”.
Helped by a band of colleagues I willingly took this up; put in money, raised funds, flew over a top-class trainer from the USA, bore all the expenses to start and run the centre. (It is a matter of pride for me that my round top dining table became India’s first mediation table.) The centre turned out such outstanding early successes that A.P.J. Abdul Kalam, then president, insisted on coming to visit a one-year-old establishment because his father had been a mediator in their village, and he wanted to see India’s first court-annexed centre. That was in 2006, and his blessings helped mediation to move national, which took me into years of institutionalising work with judges, legislators, government, corporates and so on. Many more years of such work with little thought of monetary reward followed, because higher rewards were there in plenty. It’s been 32 years of my life, to build mediation into India’s legal bloodstream and bring it to the stage of being ripe for professional practice for thousands of mediators who are mostly lawyers, and it is not possible for me to sit quiet and acquiesce in the creation of private fiefdoms by those in judicial officialdom, with the intent and power to capture prime commercial work.
Much as I was amazed by his piece, Sankaranarayanan has given me the opportunity to share my journey in mediation.
Make no mistake. I am a child of the law and its institutions, and that is in my structure and sinews. I venerate the law, the courts, and its judges. That is precisely why I take up arms against judges when they act to damage our mother and our home and our family members. Of what use is my reverence if I will not act to protect these? I was the only senior advocate to lead the campaign against Justice P.D. Dinakaran which resulted in impeachment proceedings and his resignation. I criticised Chief Justice P. Sathasivam for stooping to accept the post of governor. I have written critically about Chief Justice H.L. Dattu. I have used strong words in preparing a report card article on the performance of Justice Arun Mishra. Sankaranarayanan categorises Justices Ramana, Nageswara Rao and Hima Kohli as being among the “finest sitting and former judges” of the Supreme Court. He is entitled to his views, but I come from a different mould, and my heroes are Chief Justice M.N. Venkatachaliah and Chief Justice J.S. Verma, whom I hold to be exemplars of morality and the ultimate guides of conduct. I draw inspiration from them in acting as I do.
It is not an easy thing, to stand square in front of a chief justice and his two colleagues, with little public support albeit with plenty of quiet backing from quarters high and low. It can get a bit lonely out there, but I realise that others have constraints, some self-imposed. And how do you blame mediators when even retired senior judges are conspicuous by their silence? I am old enough to have learnt that between expectation and disappointment there is a direct ratio – lower the first and you will get less of the second. But I will say that if you don’t fight for what is important to you, pretty soon you will have nothing important to fight for. I am however fortunate that I am not dependent on the pleasure of judges for my work and income and wellbeing. By grace, I have a thriving private mediation practice, both nationally and internationally. Perhaps it is time to pay attention to the latter.
One last point, and I am done. Plain speaking is not an Indian trait, we as a people are excessively respectful of authority and many choose to overlook, ignore, or suffer breaches of codes by those in power. But it is harmful to institutions and society if there are not some who speak truth to power, tell leaders what they need to know rather than what they want to hear, call out a wrong when they see it, draw attention to the deficiency in attire of the Emperor. In this I have two guides – Chief Justice J.S. Verma and my senior S. Govind Swaminadhan. Both of them were past masters in the art of calling a spade a spade, would wield their clubs to advantage, had the largest hearts possible and were sparkling diamonds among men. With them in my life, how could I do less than what I do now?
Sriram Panchu is a senior advocate and mediator.
Note: The debate on this subject, triggered by Sriram Panchu’s article of June 13, 2022, is now closed.