When I was approached by the platform on which you are reading this piece to write something about the next Chief Justice of India (CJI), Justice UU Lalit, my first response was to give it a pass. There were three reasons, the prime being lethargy. The other two were the rather non-controversial – and here I mean it in a good sense – tenure so far of the judge on the bench and the relatively short stint that Justice Lalit would have in the hot seat.
However, in the last few days, journalists have called me to ask for my views on the “Justice Lalit represented Amit Shah” controversy. There is a certain confusion among the general public on the issue of lawyers representing unsavoury clients and the process of appointment of judges. This is the reason for the change of heart.
At the time of appointment to the SC itself, it is known whether the person shall one day be CJI. If Justice Lalit was appointed to the SC with everyone aware of his client list, then forever must all hold their peace.
Legal ethics mandate that a lawyer cannot refuse to accept a brief for any client who is willing to pay.
It is dangerous if lawyers are targeted because of the clients they represent. The entire “Kasab-Biryani” brigade misses the point that even a terrorist was accorded a fair trial. These acts actually cement India’s reputation.
As long as nothing unprofessional is alleged in his relationship with such clients, there cannot be any objection to his elevation or appointment as a Chief Justice simply on the basis of his client list.
Let's also not forget that it is rich for the ruling party to be outraged by people conflating a lawyer and his cases, especially when it tanked the proposed appointment of Gopal Subramanium, Additional Solicitor-General under UPA
How Justices to the Supreme Court are Appointed
Normally, justices in India’s top court are appointed from a pool of judges from high courts. Usually, an All India Seniority List is maintained and followed. Of late, this list has been given a go-by. The supersession of several judges, the elevation of Justice Sanjiv Khanna, the recent appointment of three women judges and recently of Justice Pardiwala, are cases in point. While the Constitution was silent about the manner and procedure of appointment, the court, through a series of judicial rulings (referred to as “The Judges Cases”) has secured for itself primacy in such matters. It is a ‘Collegium’ comprising the Chief Justice and four senior-most judges who decide on such matters by consensus. The government may disagree with the recommendation made by the Collegium and return the same.
However, a reiteration of the recommendation by the Collegium would make it binding, leaving the government with no choice but to follow it. A case in point was the appointment of Justice KM Joseph, who, as the Chief Justice of the Uttarakhand High Court, had decided certain politically sensitive cases that might have prompted the government to return the Collegium’s recommendation to elevate him to the Supreme Court. However, the Collegium reiterated its recommendation, and the rest is history.
Other than the pool of High Court judges, the Constitution permits two other routes. One is being an eminent jurist. No one so far has made it to the top court under this category.
The second is being practising advocates. Over the years, several practising lawyers have made it to the Supreme Court through this route. These include Kuldeep Singh and Indu Malhotra. Justice Lalit was directly appointed through this route. In fact, many in the Bar were rather surprised when justices Rohinton Nariman, L Nageshwar Rao and Lalit gave their consent to be elevated as Supreme Court justices, as each of them had an enviable flourishing legal practice, and that was indeed a big sacrifice.
Most Bar appointees have not made it to the ‘top job’. Before Justice Lalit, only Justice Sarva Mitra Sikri was a Bar appointee who became the Chief Justice of India.
The Collegium System & IB 'Verification'
The process of appointment of lawyers as judges of India’s constitutional sourts has always involved an element of subjectivity. The Bar, which is called 'the Mother of the Bench' as it is the resource pool for judicial candidates, was the best judge. In fact, even before the 'Collegium' system was institutionalised through judicial orders, the Chief Justice used to informally consult the Bar, ie, senior and veteran lawyers, on identifying potential judges. With the Collegium system institutionalised, the role of the Intelligence Bureau (IB) in vetting candidates assumed prominence.
Therefore, once the lawyers would give their consent to being considered for elevation as judges, the High Court (in the case of High Court judges) and the Supreme Court (for appointment to the apex court) would forward the names to the government. The Ministry of Law and Justice would secure the evaluation of these candidates by the IB and would forward the report to the Supreme Court. It was at this stage that the Collegium would consider the names along with the views of the government.
The IB verification is the weakest link in the process for two reasons. First, IB verification often is anecdotal, and hence tainted by the prejudice of the source.
One example is the story of the teetotaler Justice Sudarshan Mishra of the Delhi High Court. He was fondly teased as “boozer” by his colleagues at the Bar, precisely for his abstention from alcohol. Tragically, the inspector deputed to snoop on Mishra’s ‘reputation’ picked up the 'nickname' and not the context. This caused his appointment to be delayed by several years.
The second reason is that the IB, being a 'government agency', is amenable to influence by the ruling party. Legal corridors brim with hushed tales about how such reports have been manipulated one way or the other to make the candidate “desirable” or “untouchable” depending upon the agenda of the powers that be.
But a Lot Goes on in the Background
What I have set out is the ‘official’ process for the appointment of judges. Make no mistake, none of this even describes the ruthless negotiations and trade-offs that are whispered about behind closed doors – be it between the government and the court or between the individual judges of the Collegium. Perhaps the odds of a name sailing through this procedure only and wholly on the basis of merit are extremely dim.
Legal ethics mandate that a lawyer cannot refuse to accept a brief for any client who is willing to pay. Rule 11 of Section II, Chapter II, Part IV of the Bar Council Rules, dealing with the “Duties to the Client”, states:
“An advocate is bound to accept any brief in the courts or tribunals or before any other authorities in or before which he proposes to practice at a fee consistent with his standing at the Bar and the nature of the case.”
This is called the 'Cab Rank' Rule in England (Rule C29 and C 30 of the Barrister Standards Board Handbook) – much like the rule that you cannot choose your pick in a pre-paid taxi queue at the airport. This is not to say that this rule has always stood lawyers in good stead. Poor John Cooke, a barrister, had relied upon this 'Cab Rank' rule to agree to prosecute the deposed King Charles I for treason. When the monarchy was restored, Cooke himself was prosecuted for treason and hanged, drawn and quartered for following the 'Cab Rank' Rule!
Don't Target Lawyers for Who They Represent
It is dangerous for society if lawyers are targeted because of the clients they represent. The entire 'Kasab-Biryani' brigade misses the point that a terrorist who attacked the heart of India was accorded a fair trial and even in the Supreme Court was given the assistance of the eminent Senior Advocate Raju Ramachandran, ably assisted by Gaurav Agarwal. These acts actually cement India’s reputation as a country with a mature and just legal system and bolster our case when we seek extradition of people like Dawood Ibrahim or Vijay Mallya from foreign shores.
Justice Lalit was an extremely successful criminal lawyer and sought after by the rich and mighty. So, it is not surprising that as a criminal lawyer, he may have been engaged by high-profile persons accused of crime – be it Salman Khan or Amit Shah. If we want top lawyers to sacrifice their careers and take on judgeship, which would pay them in the whole month what they would earn in ten minutes as a senior advocate, then we have to accept that they would have had all sorts of clients. As long as nothing unprofessional is alleged in his relationship with such clients, there cannot be any objection to his elevation or appointment as a Chief Justice simply on the basis of his client list.
At the time of appointment to the top court itself, it is known whether the person shall one day be CJI. This was known about Justice Lalit then as well. If he was appointed to the top court with everyone aware of his client list, then forever must all hold their peace.
While all this brouhaha about Justice Lalit’s former clients is silly and condemnable, let's also not forget that it is rich for the ruling party to be outraged by people conflating a lawyer and his cases. In fact, one of the first actions of this government was to tank the proposed appointment of another eminent lawyer to the Supreme Court directly from the Bar: Gopal Subramanium. It is widely suspected that it was the cases that he had undertaken as the Additional Solicitor-General of the UPA regime, particularly the Gujarat riots and fake encounter cases, rather than his legal acumen and personal integrity, that were held against him.
(The author is a senior advocate practising in the High Court of Delhi and in the Supreme Court of India. He tweets @advsanjoy. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses nor is responsible for them.)
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