While the world has come to a long way, sexism, racism, nepotism still seems to be a part of the legal community. Law has always been an openly nepotistic profession and it continues to be a bastion of a few privileged and powerful families. Be they, lawyers or Judges, there is a trend where the children or grandchildren of senior advocates and judges continue to thrive while the first generation lawyers struggle as the entry barriers are extremely high.
By: Shivani Kharai, 4th Year, BBA LL.B (Hons), CMR University, School of Legal Studies, Bangalore.
“There is a lot of favouritism and then there is also nepotism in the sense that people who are already seniors, after them their children also become senior.” -Indira Jai Singh
What is nepotism?
Nepotism refers to the unfair favouritism towards relatives or personal friends by those in power. Nepotism is the act of using power or influence in order to get unfair advantages for friends and relatives.
‘It is a disease that cannot be transmitted but rather inherited.’
Is nepotism confined only in the realms of Bollywood?
Nepotism is serious not just in political system or Bollywood but in Legal System as well. In University of California, 17th September 2017, Congress VP Rahul Gandhi asks his audience to not criticize his party as the whole of India runs on dynasties and his party was no exception. It is normal in this legal profession that the children of successful or powerful advocates would be accepted to inherit the practice of the firm.
Nepotism in the Legal Practice
Nepotism is worse and intense in the legal profession. Law graduates with their parents in this profession find it much easier to survive. Whether they are planning to learn litigation or with the help of their parents or relative, getting a position of a judge or a litigator. Many law student and young lawyers find it frustrating when they see children of illustrious parents climbing into the greater heights or powerful positions while they struggle climbing.
And there are old lawyers who are practising from a very long time and who blame nepotism for their failure in the law profession.
In 2014, a PIL filed against the Karnataka High Court in the appointment of fifteen lawyers as Senior Advocate. Five of them were the sons of retired judge and other three were related to sitting judges.
In 2015, the petition was filed seeking scrutiny in which it was claimed that ‘there are no criteria for selection and it is arbitrary, opaque and fraught with nepotism.’ In 2017, the new Punjab government updated the list of advocates who would fight cases for the State in the SC and courts outside Chandigarh. This list includes the son of former CJI, J.S. Kehar, and sons of two other Supreme Court judges. The British writer Patrick French in his Book ’India: A Portrait’ mentioned that all the elected members under the age of thirty in the lower house of parliament have the family political background and he called them ‘hereditary M.P’s’.
Nepotism and discrimination
“The impression has long been growing at the bar that only relatives of seniors of those who come from particular chambers get designated. What is worse, there seems to be an imbalance between caste and communities.” –Adv. Indira Jaising
[Advocate SCI Activist]
With substantial entry barriers to the profession, if the individual belongs to the socio-economic class, factors such as caste, religion, region and gender has become instrumental in determining the fate of their legal career. This mainly affects the female lawyer who has just started their profession as a junior under their superior as Jaising said, ‘Judiciary takes women less seriously’. Religion plays an important role in determining the participation of women in the legal profession. Some courts even have informal lawyer lobbies that are constituted on the basis of region, language, religion, caste, etc. Senior advocates don’t give enough opportunities to female lawyers to argue.
Nepotism in context of the Indian Judicial System
“It is only the perspectives of the mainstream privileged majority that are considered, the interpretation of statutes and the legal position will obviously be discriminatory in nature, a sign that the justice system is broken.” –Kiruba munuswami
Nepotism in the Indian judicial system is so rampant that practically every third High Court judge is kith and kin to another judge or senior lawyer. Article 124(1)  conferred the power of judicial appointment on the political Executive President and Article 124(2)  vested the power of removal on the legislature that is the Parliament. There are various instances when the appointment of higher judiciary is questioned.
- In 2013, the collegiums of the Punjab and Haryana Court comprising the Chief Justice A.K Sikri and Justice Jasbir Singh and S.K Mittal had recommended the names of eight advocates for the promotion to the High Court. The lawyers recommended for elevation were Manisha Gandhi (daughter of Former Chief Justice of India A.S Anand), Girish Agnihotri (Son of former Justice M.R Agnihotri), Vinod Ghai and B.S Rana (former juniors of Justice S.K Mittal), Gurminder Singh and Raj Karan Singh Brar (former juniors of Justice Jasbir Singh), Arun Palli (Son of former Justice P.K Palli) and HS Sidhu (additional Advocate-General in Punjab).
List pending before Supreme Court for approval as judges in superior court, 73 names are that of sons of judges and 24 names are relatives of political leaders.
- In 2016, Centre had put on hold the appointment of 44 judges at the Allahabad High Court. Seven of the 44 advocates recommended by the High Court Collegium were related to serving or retired former judges of the court.
In 2018, the Centre has pointed out that at least 11 of the 33 names recommended for elevations by the Allahabad High Court collegium in February were advocates with links to sitting and retired judges.
- The same year four of the senior-most judges of India’s Supreme Court had come out publicly and raise concerns with regard to the functioning of the judiciary. The four are convince that unless this institution is preserve and it maintains its equanimity, democracy will not survive in this country; Justice Jasti Chelameswar said at the news conference, they accused former Chief Justice Mishra in a letter of assigning important cases selectively to benches with no rationale, implying that he had sought to influence the outcome.
In 2019, Justice Rang Nath Pandey of the Allahabad High Court in his letter written to Prime Minister Modi he wrote that the next judge’s selection is dependent on their relationship with former judges. He further allege that the selection of judges to both the high court’s and the Supreme Court is in close chambers and over cups of tea” by on lobbying and favoritism. The names of future judges are public only once the entire process complete.
I agree with Indira Jaising saying,
“The whole profession needs reform.” Nepotism is only a small part of the problem. There are problem like gender, caste based discrimination, race, caste, religion in the legal system which is equally rampant. Article 15 and Article 16 of Constitution of India states that the state shall not discriminate against any citizen on grounds of religion, race, caste, sex, place of birth or any of them and provides for equal opportunity where is that equal opportunity when you bring nepotism in the picture, when one discriminates based on status.
Every privilege in a legal profession should be equal to every lawyer.
- Kirti Choudhary, What does Nepotism Mean?, India Today, August 18, 2020.
- Poorvi Gupta, Indira Jaising Calls For Gown Waapsi, Says Legal Profession Needs Reform, Shethepeople, August 12, 2017.
- Kiruba Munusamy, The Nauseating Nepotism and Caste-based Discrimination that exists in Indian Judiciary, The Print, April 11, 2018.
- Pradeep Thakur, Government gives Collegium ‘Proof’ of Nepotism in picks for HC Judges, Times of India, August 1, 2018
- Shishir Tripathi, Supreme Court yet to acknowledge nepotism in judicial appointments, even as Centre seems intent on curbing it, Firstpost, August 1, 2018, https://www.firstpost.com/india/supreme-court-yet-to-acknowledge-nepotism-in-judicial-appointments-even-as-centre-seems-intent-on-curbing-it-4871401.html.
- Nepotism in Law, The Blunt, January 15, 2018, https://thebluntweb.wordpress.com/2018/01/15/nepotism-in-law
- Supra, 2.