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Senior Advocate, Ravi Kiran Jain discusses the linkage of judicial accountability of the Bar Associations, Bar Councils and in-turn the accountability of a lawyer.
‘We can’t talk of judicial accountability unless we talk of our own accountability as lawyers’. The phenomenon, governing the Bar has not all been enthusing. There has been an indiscriminate recruitment in the Bar; control over the Bar associations has slipped into the hands of professional office-seekers; the Bar Councils have abdicated their statutory functions under Sections6(1) and 7(1)of the Advocates Act, ‘to conduct seminars and organize talks on legal topics by eminent jurists and publish journals and papers of legal interest’ and at the top of it all ,there are lawyers who charge sky-high fees from litigants .So ,it is not surprising that an impression is gaining ground that the judicial system operates mainly for the lawyers and judges ,and the interest of the general public gets a low priority. All this needs corrective action .
Members of the legal profession are required to be vigilant ensuring a clean and sound system of administration of justice. It is possible only if we are fully aware of our own accountability. The accountability of the Bar is linked with the judicial accountability. They are not separate.
We are today passing through the age of social questioning. No section of society can take for granted the reverence of the community. The community demands from every institution the justification for its existence, the proof of its utility. The judges and lawyers may be the instruments and functionaries of the system through whom the system operates, but the real beneficiaries of the system have to be the people, the members of the general public, the aggrieved, the injured, the wronged, the persecuted and the victimized. It would be a reflection on us all if an impression prevails and gains currency that the system operates mainly for the benefit of the functionaries and the interest of the general public gets a low priority.
Bar Association, at all levels (Supreme Court, High Courts, or District Courts), the Bar Councils in the States as well as the Bar Council of India, have ironically, become centers of vested interests and are doing only the routine type of work. There are persons in every Bar who have made it their profession to contest elections to hold offices in these bodies. A lot of money is spent in these elections. It is a matter of common knowledge that one lawyer contested the election for the post of president of a very big High Court Bar Association for twelve terms. He remained president eight times; he could not succeed in the remaining elections. He also remained a member of the State Bar Council for more than four decades, and Chairman of the Bar Council of India a number of times. The scene at the Supreme Court Bar Association is no different. A senior advocate in that Association has contested the election for the post of president and succeeded six times, besides having been elected earlier as its general secretary for three times. He lost the election for the post of president only once. These professional office-seekers, through expensive elections in the overcrowded Bar, have completely polluted the legal profession. Their main interest is to win the elections and not the duty which they owe, as the holder of an elected office. They are not concerned about issues, like judicial accountability.
One of the statutory duties of the State Bar Council as well as the Bar Council of India is provided in Sections 6(1) and 7(1) of the Advocates Act, both of which read as follows:
“to conduct seminars and organize talks on legal topics by eminent jurists and publish journals and papers of legal interest”.
The State Bar Councils as well as the Bar Council of India have completely failed in performing this essential function, namely, to conduct seminars and talks on problems relating to the administration of justice. If they had not been failing in this and had there been seminars and talks on issues arising periodically, the Bar could have played the role of being vigilant. The seminars and the talks would not have been held for the fun of it. There would have been follow-up actions also after those seminars and interaction at all-India level and there would have been corrective measures.
There are a host of problems facing the country’s judicial system, such as arrears-ridden courts, courts without judges, many cases becoming infructuous on account of long delays, litigations becoming immortal and dragging till eternity, the laws being outlawed on account of long delays in this fast-running world where the people are furiously impatient. Then there is corruption in the judiciary for which Bar seems to be mainly responsible. The Bar is becoming unmanageable and heterogeneous on account of an indiscriminate recruitment. It has become impossible to discuss these problems at the general house meetings of the Bar Associations. The elected office-bearers in those associations do not feel interested or concerned in organizing general meetings for discussing serious issues. Therefore, we cannot talk of judicial accountability unless we talk of our own accountability as lawyers.
The fallout of the indiscriminate recruitment in the Bar is that element of service has totally disappeared from the legal profession, and this profession has become wholly profit-oriented, wanting to squeeze the maximum profit. An undesirable tendency to charge exorbitant fees has entered the profession. There is no Setalvad today to set precedents. Mr. Setalvad, the first Attorney General of India and the unquestioned leader of the then Indian Bar, used to charge a maximum of Rs. 1,100 for an SLP (special leave petition). Therefore, no other member of the Supreme Court Bar charged more fees than him. For an ordinary litigant the Supreme Court has become nonest, as the sky-high fees of the lawyers practicing there cannot be afforded by such a litigant. But there are now a large number of anti-Setalvads at the top to set precedents for the generations to come. Some of them charge sky-high fees for appearance before those judges who could have been elevated on account of their blessings. If I appear before a judge who was my junior before elevation and charge exorbitant fee, will it not be highly unethical and improper?
These are the reasons on account of which there is a rampant feeling, throughout the people who have to deal with the legal profession, that the legal profession is itself proving to be a great impediment in the way of a sound system of justice.
The general decay in Indian society started in 1980. But, there was a crack in the judicial system from the date of supersession of three seniormost judges of the Supreme Court in the early seventies. The fallout of the supersession was the A.D.M., Jabalpur case, AIR 1976 SC 1207. There is a feeling that Justice Bhagwati would have become the Chief Justice of India superseding Justice Chandrachud if Justice Chandrachud had agreed with Justice Khanna in the A.D.M.’s case. Supersession of Justice Khanna shows that this impression might be correct.
The backdrop of the process of general decay which started in the society in 1980 was followed with the first Judges case in 1982, also known as S.P. Gupta’s case, AIR 1982 SC 149. The decay in the judicial system has been mainly the outcome of three factors: the supersession of three seniormost Judges, the A.D.M. Jabalpur case, and the 1982 Judges case. The erosion of values and the process of fast-deteriorating norms started after the apex court judgment in S.P. Gupta’s case. The supremacy of the executive in matters of appointment of judges led to appointments on political considerations as the corrupt politicians acquired supremacy in the matter of appointment of judges.
Thankfully, S.P. Gupta’s case was overruled by the nine-bench verdict of the Supreme Court in the Supreme Court Advocates on Record Association (AIR 1994 SC 268), wherein the view taken was that the recommendation made by the Chief Justice of India for the appointment of a Supreme Court or a High Court judge is binding on the President of India. This ruling was explained further by the Supreme Court a couple of years back in the Presidential reference, according to which , a collegium of judges, headed by a Chief Justice of a High Court, and a collegium of the Supreme Court, headed by the Chief Justice of India, have to make recommendation for the appointment and transfer of judges. This system functioned to the satisfaction of all concerned for sometime. It started appearing that the appointment and transfer of Judges under that system was serving the cause of judicial accountability. This system was introduced by the Judge made law in as much as the specific provisions of the Constitution relating to the manner of appointment and transfer of judges do not envisage such a system. The supremacy of Executive was introduced by Judge made law in S.P. Gupta case, and then resting on the concept of independence of judiciary, the S.P. Gupta case was overruled, and the supremacy came in the hands of the judiciary to the exclusion of any say of the Executive in the matters of appointments and transfer of judges. After having functioned for a brief period during which the appointments and transfers of judges under the collegium system were made on objective considerations, those judges who were appointed in post S.P. Gupta case (when corrupt executive had the supremacy) and pre Supreme Court Advocates on Record case started becoming members of the collegium in the Supreme Court and in various High Courts. These members of the collegiums had a different mindset. Sub-standard appointments are being made during the currency of this system.
Ravi Kiran Jain is a Senior Advocate at the Allahabad High Court and deals with issues concerning the protection of human rights and civil liberties.