Forum shoppers, pettifoggers & uncle judges

Harvinder Khetal

We women love shopping, specially when we are loaded with money, or when there’s an ‘occasion’, when there’s a ‘sale’ or exhibition on, or when we are feeling low, or when a friend is going and asks you to come along, or on impulse, or… well, basically, anytime. When one is not so loaded, even window shopping lifts our spirits. But there’s this other type of shopping that recently came to fore: forum shopping. Forum shopping is quite foreign to most of us for it is not everybody’s forte; this form of activity mostly figures in the formula of the few foremost (elite) people.  

The term came to fore recently as some foremost (preeminent) judges got into an unsavoury, raucous hearing marked by exchange of harsh words, heckling, accusations of browbeating judges and forum shopping. The argument was regarding the bribery of judges and the composition of its Benches and who is the master of the roster (what matter is heard by which judge). It stemmed from the case of a debarred private medical college. The goings-on revealed the dark and rotten side of the judicial system. For the system to have dispensed justice, it must not only be fair and clean but also seem to be so. But when the practice of ‘forum shopping’ is alleged in this context, it only raises the ghost of immorality and travesty of justice.

So, what is forum shopping? Forum shopping is a practice adopted by litigants to get their cases heard in a particular court that is likely to provide a favourable judgment. A forum is a place where disputes are heard and decided, such as a tribunal or a court. 

For example, many foreign litigants are attracted to the US due to its favourable litigation climate and expansive acceptance of personal jurisdiction. The United Kingdom is known for its generous divorce settlements and stricter defamation laws. Interestingly, the strict laws on libel in England have led to a form of forum shopping sometimes called “defamation shopping” or “libel tourism”. That is, if you want to sue somebody for defamation, you know where to go: chances are your plea will be heard more sympathetically in England.

However, in India, forum shopping is considered an unfair practice. At times, one finds plaintiffs indulging in forum shopping when they choose to file suits at distant places just to harass the defendants. 

And, in the Philippines, forum shopping is a serious offence since the law prohibits the filing of more than one case for the same cause of action in any forum or court of law so that the courts will not be clogged by complaints of people who may file more than one complaint in an effort to gain a favourable decision in any of the numerous cases filed.

A related term is venue shopping. It refers to the activities of advocacy groups and policymakers who seek out a decision setting where they can air their grievances with current policy and present alternative policy proposals.

The case of fight of judges and lawyers also brings to mind that other way of tinkering with justice: that of ‘uncle judges’. It has relation to the appointment of those judges in a high court whose relatives are practising in the same court. In 2012, the Law Commission of India in its report recommended that the judges, whose kith and kin are practising in a high court, should not be appointed in the same high court. Since a judge refers to his colleagues as brother judges, they become “uncle judges” to his kith and kin.

In May 2014, the then newly appointed Chief Justice of India (CJI) Rajindra Mal Lodha sparked a debate when he said that at least 16 (34%) of the 47 judges in the Punjab and Haryana High Court have kith and kin practising law at the same place. Either these relatives have private practice or the Punjab and Haryana governments have accommodated them in respective advocate-general offices. 

By the way, do you know what a pettifogger is? He is a lawyer whose methods are petty, underhanded, or disreputable.

The “petti-” in pettifogger is an alteration of petty, a word that has traditionally described someone who is disreputable and small-minded. Where we get fogger is less clear; it may come from Fugger, the name of a successful family of 15th- and 16th-century German merchants and financiers. Variations of the name were used for people who sought their money dishonestly; in its application to lawyers, starting in the 16th century, it described one who quibbled over petty details for a fee. 

All this dirty business of manipulating judiciary reminds me of the oft-repeated statement of my dad who was embroiled in a court case: “Nobody should have to deal with the lawyers!” He was definitely referring to the pettifogger variety.

Well, all this talk of judges and shopping reminds me of:

Judge: Why were you arrested?

Boy: For shopping early.

Judge: that’s not a crime. How early were you shopping?

Boy: Before the shop opened. 

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