Inside the Ivory Tower

The judiciary in India, time and again, has vocally championed the cause of encouraging first generation advocates, hailing their courage and affirming the promise of equal opportunity. Yet, beyond well-crafted speeches and occasional acknowledgments, the profession remains, at its core, fiercely protected by invisible gates guarded by a privileged few.

The prevailing opaqueness and entrenched nepotism do not merely restrict access for new entrants but corrode public trust in the very edifice of justice they seek to uphold. While judicial luminaries often underscore the value of fresh perspectives and diverse backgrounds, these commitments rarely translate into action. The legal ecosystem is riddled with barriers - from opaqueness in appointments to subtle social exclusions - that systematically keep out first generation advocates. This not only suppresses merit, but also perpetuates a hereditary order, stymying the evolution of a fair and dynamic Bar.

Though the author does not favour excessive executive control in judicial appointments, and acknowledges the collegium system as a necessary evil for preserving judicial primacy, the time has come for reform toward greater transparency and fairness. The following reforms are necessary in the collegium system to bring in greater transparency and to assuage the perceptions of favouritism and nepotism that plague the legal profession on both the sides of the Bench.

i. Mandatory anti-nepotism disclosures: Each candidate considered for elevation should declare any familial ties to sitting or former judges of constitutional courts. Such declarations are consistent with international anti-nepotism practices and would illuminate any patterns of favouritism and nepotism in judicial appointments. Candidates with no such relations should be given greater weightage, fostering a more equitable selection process. Following underlying spirit of the Rules framed by the Bar Council of India under the Advocates Act, 1961, candidates related to sitting or former judges of constitutional courts as father, grandfather, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law, daughter-in-law or sister-in-law must be made ineligible for appointment as judges in constitutional courts. Any relation with a sitting judge outside these degrees of relations should warrant abeyance of their candidature until the concerned judge retires.

ii. Eradicating arbitrariness in overturning previous Collegium resolutions: The Collegium must record reasons for the rejection of candidates, even if not disclosed. If a previously rejected candidate is reconsidered and recommended for appointment subsequently, the Collegium’s resolution must detail how the earlier grounds for rejection have been cured.

Such reforms alone will not end nepotism and opaqueness, but will also prove to be stepping stones toward a more trusted and inclusive process.

The domino effect of nepotism is not confined to the judiciary alone. In the empanelment of advocates or appointments as standing counsel for state instrumentalities, there must be a declaration by every advocate sought to be so appointed, affirming no current ties to any sitting judge of a constitutional court. Appointment of the kin of sitting judges as State counsel is not only a conflict of interest, but also another brick in the wall against first-generation advocates. A bar to the appointments of such candidates as Panel Counsel or Standing Counsel of State instrumentalities until the concerned judge demits office is a modest yet crucial step toward a less manipulated space.

The allotment of court chambers is another domain where hereditary privilege reigns unchecked. Chambers, once allotted, are handed down from to the successors of the existing allottees instead of being returned to the pool for deserving new entrants. This inherited privilege aggravates the already steep financial barriers for young advocates struggling to secure office space, particularly in cities like Delhi where the rentals are exorbitant. One such instance of prohibitory practices against first generation advocates is evident in Order IV, Rule 5 (iii) of the Supreme Court Rules, 2013 requiring that Advocates-on-Record (AoRs) must maintain an office within 16 kilometres radius of the court. The said rule is an archaic and exclusionary rule.

With astronomical rents in Central Delhi, this regulation effectively excludes those without wealth or connections. In the age of digital filings, video conferencing and modern transport, this rule not only propagates elitism, but arguably violates constitutional guarantees of equality and opportunity. Amending this rule to require AoRs to have office space anywhere in the Delhi-NCR region as statutorily recognised under National Capital Region Planning Board Act, 1985 would reduce the said financial burden without impairing court functioning.

Transparency and equity must reflect not just in appointments, but also in the everyday workings of the court. Judges ought to scrupulously avoid favouritism in addressing counsel, as even the unconscious privileging of a familiar name casts a shadow on the impartiality of proceedings. Instances of judges calling some advocates, particularly kith and kin of other judges, by their first names to the exclusion of the other counsels (who are forced into oblivion as mere “Mx. Counsel”), gives an impression of favouritism and erodes the confidence of a litigant observing the court proceedings. Mandating a system where the arguing counsels’ names are clearly displayed on a screen in front of the judges during hearings could help ensure equal treatment. Rules of conduct for judges should require consistent, respectful acknowledgment of all counsel, regardless of their lineage or background, to dispel perceptions of bias.

If the legal profession in India genuinely aspires to be the upholder of justice and equity, it must first confront the spectre of opaqueness and nepotism within. From appointments and assignments to the mundane yet consequential business of chamber allotments and courtroom courtesy, each reform is a step toward dismantling the invisible gates of privilege and building a judiciary that commands respect, not suspicion. Only then can the promise made to first generation advocates, and indeed to the nation at large, be considered anything more than hollow rhetoric.

Divyadeep Chaturvedi is practicing as an Advocate on Record in the Supreme Court of India.