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Seeking conflict resolution

Several senior judges have recently opted out of cases citing conflict of interest. But like other major democracies, India needs a law or set of guidelines to define what conflict of interest is, reports Nagendar Sharma.

india Updated: Nov 16, 2009 23:23 IST
Nagendar Sharma

On November 4, two senior judges of the Supreme Court withdrew from two separate cases involving the Reliance Industries Limited, citing “conflict of interest”.

In these and other high-profile examples, the judges took a voluntary decision to “recuse themselves” — in technical parlance — from the cases they were hearing. While this has largely been welcomed, the lack of clear guidelines on what constitutes conflict of interest is a cause for concern.

Unlike the United States and Britain, India does not have a law that defines conflict of interest or that can be used to take action in cases involving it.

Non-governmental organisation Transparency International, which tracks and creates public awareness about corruption, has defined conflict of interest “as a situation where an individual or the entity for which they work, whether judiciary, government, business, media outlet or civil society organisation, is confronted with choosing between the duties and demands of their position and their own private interests”.

Though the debate on conflict of interest has been going on for years, it gathered momentum after senior lawyer and judicial accountability activist, Prashant Bhushan, named several judges — including former chief

justices of the Supreme Court — whom he accused of corruption, in a controversial interview he gave to Tehelka in the newsmagazine’s September 5 issue.

Bhushan also raised the question of conflict of interest against Justice Kapadia for having heard and decided a case related to Vedanta, despite having invested in shares of its sister company, Sterlite.

Bhushan’s allegations earned him a contempt of court (showing disrespect to the court) notice from the Supreme Court on November 6.

“I will fight the proceedings,” Bhushan said. “But the important point is that the 1997 judges code of conduct, which says that if a judge has shares in a company he needs to only disclose them and thereafter if the lawyers do not object he can continue hearing that case, in my view, is not a correct principle and needs to be modified.”

Former Supreme Court judge P.B. Sawant said the United Nations’ sponsored “Bangalore Declaration” was now the internationally accepted norm for conflict of interest cases.

“A judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide the matter impartially, since the judge, or a member of the judge’s family, has an economic interest in the outcome of the matter in controversy,” the declaration said.

But are voluntary codes and declarations enough? “Perhaps not. All these issues need to be backed up by legislation,” said Justice Sawant, adding that it was high time that India had a law to define and draw a line on conflict of interest.

Veteran jurist and one of India’s most outspoken judges, Justice V.R. Krishna Iyer, argues that judges “should have known the principles of judicial life by now, but if that has not happened voluntarily, then a new law seems to be the last resort”.

But Iyer believes such a law should also apply to elected representatives and bureaucrats.

“The proposed Judicial Standards and Accountability Bill will take care of these aspects (relating to accountability and conflict of interest),” Law Minister M. Veerappa Moily said.

“I think conflict of interest should be defined and I would favour a law based on consensus to deal with this,” said another senior minister, on the condition of anonymity.