The unseemly spat between Kerala Governor Arif Mohammed Khan and former Supreme Court judge Justice Rohinton Nariman, which erupted on Wednesday, has lowered the dignity of these Constitutional dignitaries, although the judge has retired. Governor Arif Mohammed Khan alleged that Justice Rohinton Nariman had a “conflict of interest” while the latter alleged that Khan was not an “independent functionary”.
A conflict of interest occurs when there is a clash between filial affection and public duties which calls into question one’s impartiality while criticising the holder of a public office. Justice Rohinton Nariman was ordained a Parsi priest at the age of 12 years and his scholarship may rival that of his renowned father, senior advocate Fali Nariman.
A judge is immune from the law of defamation and other laws when he speaks in his courtroom but this privilege collapses outside the courtroom. The Kerala Governor told Prabhu Chawla of India Today magazine that the judge’s father, senior advocate Fali Sam Nariman, and his juniors had received more than Rs 40 lakh from the Kerala government for giving a legal opinion.
During the Bansari Sheth Memorial Lecture in Mumbai, Justice Nariman had said he was waiting for the day when the Supreme Court would hold that it is only independent functionaries who should fill the offices of Governors and “not the kind of people we find today, as we have in Kerala, for example.” He was referring to the fact that the Kerala Governor had refused to give his assent to bills passed by the Kerala legislative assembly.
Advocate Mathews Nedumpara, founder of the National Lawyers Campaign, had first pointed out in a post about the exorbitant amount that the Kerala government paid to the Constitutional expert, senior advocate Fali Nariman. This issue resurfaced again when Governor Arif Mohammed Khan said the judge’s “whole anger was directed at me. He was just showing his deep anger against me… Most of it was about me.”
“He did not mention the Punjab Governor, he did not mention the Tamil Nadu Governor. All three cases are pending there (in the Supreme Court). He was unhappy with me. I wish he had told the audience what I have here with me (while showing a Gazette notification) and I will give it to you…”, the Governor said when asked about Justice Nariman's remarks.
He then read from a document that money was paid to senior advocate Fali S Nariman by the Kerala government for his legal opinion in a case. “The Advocate General of Kerala has requested the government vide reference so and so…to sanction Rs 30 lakh to be paid to Shri Fali S. Nariman, Senior Advocate of the Supreme Court, Rs 990,000 to advocate Subhash Sharma his junior, Rs 400,000 to advocate Zafir Ahmed again his junior and Rs 300,000 to Shri Vinod K Anand his clerk”, he read.
Governor Arif Mohammed Khan said the amount was paid about the same issue that Justice Rohinton Nariman spoke about. “He (senior advocate Fali Nariman) had not appeared (in court), (but) only to give an opinion. I wish he (Justice Rohinton Nariman) had informed his audience that there was a conflict of interest when he was speaking against me. Can anybody in this hall imagine approaching the Supreme Court if he has to pay this fat amount to the Advocate only for giving an opinion, not even to appear in the Court,” the Governor asked rhetorically.
What laypersons do not know is that when High Court and Supreme Court judges retire, they earn much more than they did while sitting as judges. A sitting high court judge earns Rs 2,25,000/- per month while a chief justice and a Supreme Court judge earn Rs 2,50,000/- per month apart from other amenities furnished by the state.
But after retirement, judges are not allowed to practice in the state where they once discharged judicial functions, and a Supreme Court judge is disallowed from practicing anywhere within India. But they are allowed to head arbitration panels where they charge exorbitant amounts as reading charges apart from each time a commercial arbitration is held in five-star hotels.
Senior advocates or retired judges can earn more than Rs 50,00,000 per arbitration or even while giving elaborate legal opinions. Moreover, former chief justices are provided peons and staff from their parent high courts even after retirement which was why the 49th CJI Uday Umesh Lalit was provided with a bungalow from the Supreme Court’s pool quota after his 74-day-tenure. He allegedly retained 28 staff one month after retiring.
But to return to the issue at hand, Governor Arif Mohammed Khan said, "The father (Fali Nariman) is receiving the money and the son is blasting the Governor for having not allowed a situation where that opinion can help the Kerala government (sic)”, he added.
“Sir, if somebody from my family is paid such a huge amount and without mentioning that fact, I am lambasting somebody in my public lecture, is it even adhering to the principles of Natural Justice,” the Governor asked.
Some journalists and laypersons do not understand the difference between senior advocates and advocates which is laid down in the Advocates Act, 1961. All the 25 high courts can designate an advocate as a “senior advocate” due to his special knowledge of the law and how he is perceived by the judges. These senior advocates wear a special gown over their black coats which has a rectangular flap at the back and tiny bells on their sleeves.
Advocates general and solicitors general automatically acquire this coveted designation as they represent the government of the day. But when the political party goes out of power, so does the advocate general. Fali Nariman refused judgeship but his son, Justice Rohinton Nariman was elevated directly from the bar as a Supreme Court judge without having prior judicial experience because the Supreme Court collegium normally recommends chief justices of high courts as judges of the apex court.
But high court judges who have retired are conferred the “senior advocate” tag and can appear in other states including the Supreme Court to argue cases. This rule does not apply to Supreme Court judges who anyway get a very good pension and do not need to practise law apart from heading arbitration panels or commissions of inquiry.
The law can be moulded to suit the changing needs of those who attack each other.
Olav Albuquerque holds a PhD in law and is a senior journalist and advocate at the Bombay High Court