The Law of Nepotism

When you mention a famous racehorse, they always ask you, ‘from which stable?’ The stable is important. It establishes the ancestry and the breed. When you name a lawyer who has done well, people ask you, ‘from which chamber?’ The chamber is important. It establishes the hierarchy and cultural tradition in which the lawyer has been reared.

– Before Memory Fades, Fali S. Nariman.

Although the Indian Judiciary is the only organ of the state that selects its candidates in a hush manner and is not elected so it stands independently without being held accountable to the Republic for its judgments and is only responsible to itself. An Allahabad High Court Judge Rang Nath Pandey wrote a letter to the Prime Minister, averring “nepotism and casteism” in the appointment of judges to the High Court as well as the Supreme Court. He even raised concerns regarding judgments delivered by judges benefiting from Nepotism to be arbitrary in nature and further alleged that it was unfortunate that the basis for the appointment of judges was “kept under wraps”.

Several High Courts and Supreme Court advocates and judges are alleged to have been appointed by the employment of casteism, nepotism, as well as favouritism. The allegation is based on the ground of the appointment process called the collegium which legally binds the President to heed the recommendation of the names of judges or advocates to be appointed or promoted to a tier higher or at the apex in the judicial hierarchy, putting a dent in the advocacy of accountability and independence of the Judiciary.

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.

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.

Imagine, you just completed your studies and the day after you got enrolled in the BAR you have a table in your Ancestral Chambers and you are preparing for your first case and the Judge which happens to receive the case is at one time your Grandfather’s junior and your Father’s childhood friend. Though the Indian judicial system still stands on the ideas of equality and unbiased nature, still there is somewhere a sort of soft corner for someone who we know in front of us from a long period of time and now is pleading before, there have been many instances where the judges granting stays and positive orders even on occasions when they request adjournments.

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.”