28 Jun 2022 6:18 AM GMT
Mr Sriram Panchu and Mr 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 popularize the practice. However, over the last week, we have seen their disagreement in these columns over recent developments...
Mr Sriram Panchu and Mr 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 popularize 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 Mr 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 his other piece in the Hindu on 22nd June, 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, and regrettably displayed a complete discomfiture with fact and evidence.
The first sally
On 13th June, writing in the Wire, Mr Panchu expressed his reservation about retired judges taking to mediation, claiming simplistically that "the latter issued commands while the former facilitates" and then proceeded in a patronizing 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. Mr 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 the judge 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 Mr 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 Mr 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 that 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.
Despite Mr Kannan counselling Mr Panchu to check his facts, it is obvious from hisrejoinder piece that he did no such thing. I, on the other hand, did. And here they are:
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 government and to carve out post-retirement sinecures and benefits"?
The five principles of the Justice Verma Restatement that Mr 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 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 NCLT to refer cases to this newly established centre, and they have obliged" says Mr Panchu off the top of his head.
"Similar referrals have been mooted in the First Court at Tilak Marg", he adds, making it seem that the entire Supreme Court is subject to such dictates.
These ad hominem attacks are quite shocking, and are echoed in another piece by him in the Hindu on 22nd June, where he shares a distasteful rumour concerning Justice Lalit and Justice Chandrachud which implies Governmental preferences among our seniormost judges. I find it difficult to reconcile all these careless observations with the respected professional that we have all known and admired these many years.
Winston Smith, that tragic protagonist of 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, 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, Supreme Court of India