'Lawyers Losing Independence To Speak About Law A Serious Issue' : Aditya Sondhi Raises Concerns About Bar Becoming Pliant

Senior Advocate Aditya Sondhi expressed concerns about the impression which is gaining among the members of the bar that they have to be aligned in a particular political way to be considered for judgeship.

"We need to look at the impression that is gaining ground - that the executive is all powerful, that the bar needs to be in a particular way for it to be eligible. Trust me, that impression is very deep rooted",  he said while speaking at a seminar organized by the Campaign for Judicial Accountability and Reforms (CJAR) on the subject "Executive Interference in Judicial Appointments".

Although Sondhi's name was recommended twice by the Supreme Court collegium for elevation as a judge of the Karnataka High Court, the Central Government did not act on it. Anguished by the Centre delaying his appointment while approving other collegium resolutions, Sondhi withdrew his consent for judgeship. In the seminar, he mentioned that a critical speech made by him about the Citizenship Amendment Act was probably held against him. He wondered if the members of the bar do not have the freedom to even comment about constitutional and legal issues.

"I am told that I had given a talk about CAA which was held against me. But I'm not a political guy. My speech on the CAA was about its constitutionality. I doubted whether it was constitutional. I've given a speech about the EWS also. I had expressed that it would probably pass the constitutional test, which it did by 3:2 majority. Are we now telling the younger bar that you cannot express even that expression? I can understand out and out political leanings. But even this freedom that we signed up for to speak or write or teach in the law, if that is also going to be compromised, then it is something serious to be considered. Down the line, in the next 15-20 years, we're going to look down at a very different feeder that will feed the esteemed institution".

"There is an increasing impression being created, and I can perceive it, that to be on the bench, lawyers have to toe the line. If the sine qua non for elevation, then what is the independence?", he asked.

Sounding a word of caution, he said,  "we don't want to go down the road where the bar becomes pliant. A pliant bar is the death knell for the system itself. The bar is the stronghold of the rule of law. The bench and the bar work together. The implications of the bar becoming more pliable or compromised are serious in terms of how it affects the very ethos of our practice".

Executive interference can take place in a subtle manner.

Sondhi said that executive interferences need not be overt and can take place in a subtle manner. For example, by simply not doing anything about certain recommendations. 

"When we speak of the word interference, it seems to suggest something overt. But we have seen through practice that executive interference in judicial appointments takes on a different avatar- which is doing nothing. That too interferes with the process of appointments, as I personally experienced and lived through."

While opining that judicial independence had to be ingrained in the members of the bar, the Senior Advocate opened up about his personal experience and said–

"I was recommended to the Karnataka High Court in a batch of three. I was segregated and kept pending. My file was returned. The collegium reiterated it. Even after reiteration, the appointment didn't come. In the meantime, other appointments started coming to our bar. A very distinguished member of the bar came to me agitated and said "Sondhi, please withdraw today". I still remember his expression, he was in tears. When I reflect on why he said that with so much intensity, I realise that this meant something to the bar. To the executive, it was perhaps one name here, one name there. But for bar it means something more. It's an affront. It is a reflection of how the executive sees the bar."

Expressing concerns about the shrinking of the bar's independence, he said:

"In my limited experience, I have not seen the bar as political as it is today. That is something we need to reflect on. My great concern is that this middle ground that ought to be a feeder to higher judiciary - an apolitical bar- that middle ground is shrinking. Maybe someone should have even told me that you need to very early in your career make that choice- do you want to be a counsel or do you want to go on bench."

Sondhi emphasised that inviting the executive to the appointment process is not the solution to improve the collegium system.