Survey of high court advocates exposes fault lines between bar, bench; greater transparency in judicial appointments need of the hour

Source: www.firstpost.com

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-- Chitrakshi Jain (Research Fellow, Vidhi Centre for Legal Policy)

In March 2020 Ranjan Gogoi, former Chief Justice of India took oath as a member of the Rajya Sabha. This event received widespread condemnation from public officials; even Gogoi's former colleagues J Lokur and J Kurien Joseph publicly criticised his acceptance of the membership as an assault on the ‘independence, impartiality and integrity’ of the judiciary. Various public intellectuals acknowledged that this would further undermine the reputation of an institution which is undergoing a crisis of legitimacy.

The judiciary has come to occupy a special place in the public life of Indian citizens. The behaviour, competence and diligence of judges are the crucial indicators which inform the legitimacy that the institution as a whole enjoys.

itigant surveys and public opinion polls have been undertaken in the past by civil society organisations to assess the level of trust that the judiciary as a public institution inspires. Practising advocates, however, are uniquely situated to assess the functioning of the judiciary.

Surveys of advocates should be distinguished from public opinion polls as advocates interact with judges on a daily basis and this allows them to better observe the conduct of the judges.

Other jurisdictions such as the USA have even institutionalised Bar polls as one of the methods to evaluate the performance of judges. In India, there has not been a single national level engagement with individual members of the Bar let alone institutionalisation of Bar polls as a routine activity.

In this context, the Justice, Access and Lowering Delays in India (JALDI) initiative of the Vidhi Centre for Legal Policy commissioned ‘A Survey of Advocates Practicing Before the High Courts’. The survey was conducted across eight high courts at Allahabad, Bombay, Calcutta, Delhi, Gujarat, Kerala, Madras and Patna, and covered at least 350 advocates per high court.

Amongst other things, the survey includes questions to measure the perceptions of advocates on different aspects of judicial functioning including probity, competence, and their views on the collegium system of judicial appointments.

Perception of corruption

When asked to score the level of corruption in the judiciary on a scale of 1 to 10 where 10 indicated that corruption in the judiciary is well entrenched; 107 advocates from the Bombay High Court who chose to answer the question gave it a score of ten.

What is even more telling is the fact that 266 of the surveyed advocates from the Calcutta High Court and 254 of the surveyed advocates from the Madras High Court refused to answer this question.

It is important to mention here that the advocates who participated in the survey were assured anonymity through the letter of information before participating in the survey. It is indeed worrisome that despite this caveat, members of the Bar were reluctant to answer this question.

These responses hint at a litigation culture where the Bar and the Bench are not equally situated especially if we look at the discretion that judges enjoy under the Contempt of Courts Act, 1971, and in the uninhibited manner that it has been exercised in the past.

Views on the collegium system of judicial appointments

Another important insight came from the advocates’ views on the functioning of the collegium system of judicial appointments wherein appointments to the higher judiciary are made on the basis of recommendation by sitting judges. The collegium system of appointments has come increasingly under public criticism for its opaque functioning. Given that practising advocates are required to appear before judges who are selected through this mechanism, it was thought useful to ask these advocates of their opinions on the continuance of the collegium system and whether they felt it required more transparency.

- Of all the advocates surveyed, 90.4 percent, 80.34 percent, 62.82 percent at the high courts of Patna, Calcutta and Gujarat, respectively felt that the collegium should continue but with greater transparency in its functioning.

- Sixty-four percent and 34.25 percent of the surveyed advocates at the high courts of Kerala and Madras, respectively, felt that the collegium system should be replaced by the National Judicial Appointments Commission (NJAC); 60 percent of surveyed advocates at Delhi High Court too felt that the collegium system should be replaced with NJAC or another alternative system.

Scholars more than ever are recognising that judicial accountability cannot be compromised in the name of independence and these changing views find resonance in the results of our survey. The Supreme Court has time and again defended the collegium system in the name of judicial independence.

It is overwhelmingly clear from the responses to the survey across high courts that the way in which the system of appointments is currently functioning needs rethinking with a majority of the surveyed advocates demanding greater transparency in its operation.

Lately, even the practice of making available reasoned resolutions has been dispensed with. Often Bar associations have resorted to organising protests against controversial decisions taken by the collegium. Despite increasing pressure to increase transparency, the judiciary seems to be taking steps backwards on this front.

Pertinently, a significant proportion of advocates covered by the survey had between 5-10 years of experience. The views expressed in the survey also expose the fault lines between the younger members of the Bar and the old guard, and if the judiciary does not adapt to the changing times it risks deepening the crisis of legitimacy.

In this context, the voice of the Bar with regards to the judiciary’s functioning can give one useful indicators regarding the health of the institution. From the voices that one heard, it appears the institution’s well-being is in need of some urgent attention.