Should a lawyer practise in a court where his relative is a judge?

On August 23, the Rajasthan government appointed advocate Padmesh Mishra as additional advocate general. The same day, the state government amended its State Litigation Policy. Without the amendment, Mishra’s appointment would not have been possible.

Clause 14.4 of the policy prescribes minimum experience of ten years’ legal practice in the Supreme Court or the Rajasthan High Court for candidates for the post of additional advocate general. The amendment added the following proviso to Clause 14: “Notwithstanding anything contained in the Policy, the authority of the appropriate level shall have the power to appoint any counsel to any post after considering his expertise in the respective field.”

Padmesh is the son of Supreme Court judge Justice Prashant Kumar Mishra.

Padmesh’s appointment as additional advocate general – the second-highest law officer in the state – means that he would be representing the government of Rajasthan in the Supreme Court, where his father is a judge.

This raises concerns over the propriety of lawyers practicing in courts where their relatives are judges, fueling the perpetual debate about potential conflicts of interest and nepotism in the Indian judiciary. Over the years, neither the bar nor the bench has been able to resolve this question.

Mishra’s appointment challenged

A Jaipur-based advocate, Sunil Samdaria, has challenged Padmesh Mishra’s appointment in the Rajasthan High Court.

Samdaria had argued that the appointment was done in undue haste through an amendment that bypassed the existing eligibility criteria for the post. The appointment following the amendment on the same day meant that the provisions for consultation with stakeholders, such as the advocate general and the state-level empowered committee, and screening of candidates in Clause 14 of the policy would have been an “empty formality”, he contended.

According to his petition, the amendment vests in the government arbitrary and unfettered powers to appoint anyone as state counsel without any objective criteria and must be struck down as unconstitutional.

The High Court has issued notice in the matter.

Both Mishra and the Rajasthan government’s law and legal affairs department were contacted for comment on Mishra’s appointment. The story will be updated if they respond.

Mishra’s hasty appointment seems to be in violation of guidelines set by the Supreme Court in 2016 for appointment government law officers.

It had recommended that the all appointments by the government must be made in a fair, reasonable, non-discriminatory and objective manner. Arbitrary appointments without any transparent method of selection would violate the Fundamental Right to Equality enshrined in Article 14 of the Constitution, it held.

The appointment of government counsel must be only in public interest, unaffected by political and other extraneous considerations, it noted. It had added that governments are obligated, in public interest, to hire the most competent lawyers to represent them in courts.

No clear regulation

Advocates are barred from appearing in front of a bench in which a relative is a judge. But there is no prohibition against them appearing in a court in which a relative has been appointed as a judge, as long as their relative is not hearing the case.

But since judges may discuss details of the cases they hear with each other and may also socialise with each others’ family members outside the court, the fear is that confidential information may reach a lawyer who is related to a judge. Even in the absence of any actual wrongdoing, there is the risk of bias and the appearance of nepotism, which would undermine public trust in the judiciary.

Initially, the Bar Council of India’s Rules on an advocate’s duty towards the court prevented advocates from appearing in any court where close relatives function as judges. In 1981, a five-judge constitutional bench of the Supreme Court had suggested, but not ordered, that High Court judges should opt to be transferred to a different High Court if their relatives practise in the same High Court.

In 1983, the Karnataka High Court ruled that while the term “court” in the rule didn’t refer to all the different courtrooms comprising of different benches of judges in a High Court, it must be interpreted strictly when it comes to a lawyer whose spouse is a judge since the spouse may have access to confidential information about cases.

As a result, a lawyer married to Justice MS Nesargi of the Karnataka High Court was barred from appearing before the High Court.

This interpretation was appealed against at the Supreme Court but never reached a conclusion as Nesargi retired from the High Court while the appeal was pending.

Later, the Bar Council’s rules were amended to narrow down the conflict-of-interest prohibition on advocates, preventing them from appearing only before a judge who is their relative. This removed all doubts that lawyers were not placed under a larger restriction of practising in courts where relatives are judges.

In 1997, the judges of the Supreme Court adopted a resolution on “Values of Judicial Life”. Among other things, they committed to the narrow restriction of not permitting any immediate family member from appearing in court before them and that no lawyer who is their family member be allowed to even use the judge’s residence for professional work.

In 2014, the Supreme Court was confronted by the question of the larger restriction in the form of a public interest litigation filed by advocate ML Sharma seeking a bar on the relatives of judges at a court from practising as lawyers in that court.

However, Chief Justice of India RM Lodha dismissed the case and shifted the onus, saying that it was up to the Bar to determine a solution to this problem.

Multiple instances

This lack of clarity means that only a few judges over the years have taken the initiative of seeking to move to a different court if their close relations begin legal practice in their courts.

Most recently, Justice Sujoy Paul of the Madhya Pradesh High Court was transferred earlier this year to the Telangana High Court upon his request since his son was to begin practising at the Madhya Pradesh High Court.

Before that, Justice Atul Sreedharan was transferred last year from the same High Court to the High Court of Jammu and Kashmir and Ladakh since he too had pointed out that his daughter was to begin practising in the Madhya Pradesh High Court.

However, since it is not possible for judges to be transferred out of the Supreme Court to a parallel court, it is fairly routine for the relatives of Supreme Court judges to be practising in the Supreme Court as well.

This was most recently seen with Senior Advocate Fali S Nariman practising at the Supreme Court even when his son Rohinton F Nariman was a judge there between 2014 and 2021.

Similarly, Senior Advocate Neeraj Kishan Kaul practised at the Supreme Court even while his brother Sanjay Kishan Kaul was a judge from 2017 till 2023. Neeraj Kishan Kaul even argued in the marriage equality petitions before a Constitution bench of the court comprising Sanjay Kishan Kaul.

These cases may be distiguished from Padmesh Mishra’s, since both senior advocates had been practising at the Supreme Court from far earlier than their relatives’ ascension to the Supreme Court bench. On the other hand, the hasty appointment of Mishra, a lawyer with five years’ experience, to represent the Rajasthan government in the Supreme Court only 15 months after his father’s elevation as a Supreme Court judge raises graver concerns of nepotism and conflict of interest.

High-profile appointments

Since Prashant Kumar Mishra’s elevation to the Supreme Court bench in May last year, Padmesh Mishra has landed a series of high-profile appointments as counsel with government agencies.

In October, he was appointed as retainer counsel to represent the Directorate of Enforcement before the Delhi High Court for a period of three years.

A few months later, in March, he was hired as a central government standing counsel for conducting the Centre’s litigation before the Delhi High Court.

Among the eight standing counsel appointed, he was by far the most inexperienced. The length of practise of the other seven ranges between 16 years and 25 years.

The appointment of a judge’s relative into a prestigious government counsel position is hardly ground-breaking, though. It has been the norm in such appointments.

In 2010, Justice Markandey Katju of the Supreme Court had flagged in a judgement that the relatives of several judges of the Allahabad High Court were practising in the same High Court and had consequently amassed huge wealth. He called this a misuse of the lawyers’ relationships with judges and recommended the transfer of such judges.

In 2017, the President of the Supreme Court Bar Association RS Suri had pointed this out too, complaining to the Chief Justice of India JS Khehar at a public event that “80% of government panels are being filled with sons and daughters of judges”. This was, however, dismissed by Khehar.

Last month, an application was heard by the National Green Tribunal flagging the appointment by a tribunal bench headed by Justice Sudhir Agarwal of his son, advocate Gaurav Agarwal, as an amicus curiae in multiple cases before the tribunal despite allegedly not practising regularly in the tribunal.

An amicus curiae – literally “friend of a court” – is an expert appointed by courts to offer information or assistance in a particular case.