Bar associations have become political addas: Senior Advocate Asim Pandya

Can outstandingly naïve and bad decisions, misjudgments and a head-first dive into unknown territory lead to success?

Senior Advocate Asim Pandya's answer is a resounding 'Yes'.

In fact, the question is one he poses to himself at the beginning of his curiously titled recent memoir 'My Misadventures and Failures (Laugh out Loud)'.

The book begins with the story of his birth in the village of Umreth, Gujarat. The first few chapters lull the reader into a false sense of comfort. The author's voice is one that will be familiar to anyone who has listened to their fathers or uncles recounting the tales of their childhood - of walking 5 miles to school, climbing trees, getting in trouble, experimenting with more creative fields and so on.

But what follows is a sharp and astute analysis of the legal profession and the judiciary as it has stood since Pandya started his career in 1989.

Pandya desists from unnecessary obeisance, but maintains a dignified measure of restraint while critiquing the way junior lawyers are treated, the impact of political connections on a career in law, the Collegium system and more.

In this interview with Bar & Bench's Giti Pratap, the two-time President of the Gujarat High Court Advocates' Association (GHCAA) and Senior Advocate continues this approach as he criticises bar associations and the Senior Designation system.

Edited excerpts follow.

Giti: In the book, you speak about the struggles you faced as a junior lawyer who had to sail through affluent society while earning little to no salary. Do you think the situation has changed now?

Asim Pandya: I don't think so. Today, most seniors retain juniors but their stipend is not big. So the situation to that extent has not improved. But now, youngsters are very smart. They use AI, web platforms, etc and do advertisement for themselves and get work directly, not through seniors.

Giti: You write very fondly about your time working as a junior to SI Nanavati.

Asim Pandya: He was a very generous person. He would pay the highest salary to his juniors, make sure that they had good cars, high status in society. While travelling to Delhi or Mumbai, he would make sure we would also travel with him in business class. Those aspects need to be adopted. Senior lawyers should endeavour to pay highest amount to the juniors and try to see that their status is elevated in society.

Giti: You then started a partnership with Vijay Patel, an active politician, who was an MP and an MLA at various points in his career. How did your association with him impact your career?

Asim Pandya: When I was a junior, I wanted to be a government pleader but I struggled for it. I approached the highest authorities to recommend my name, but that did not happen. But as soon as I joined Vijay Patel, who was at that time a Member of Parliament...it immediately resulted in giving me the post of Central Government Counsel. So if I was independent, if nobody was there, nobody was willing to make me even assistant government pleader. But as soon as I entered this league of powerful persons, immediately it came to me...

Giti: You were once considered for judgeship but the recommendation of the High Court collegium did not result in the desired outcome. What factors do you think affected your candidature?

Asim Pandya: My name was recommended in 2009 for the high court judgeship. There was a BJP government at the State level, but at the Central level, it was a coalition government of the Congress. Ultimately, when the Collegium sent eight names, only those two names were cleared who had good affiliation to the Congress government. I was branded as a BJP candidate even though my father belonged to the Congress party and was an active politician in the Congress regime.

Giti: You then moved the Court seeking an answer as to why your recommendation was not cleared.

Asim Pandya: For about six months, I researched and studied judgments on this issue, starting from SP Gupta, to find out what could be done to improve the Collegium system. Certain things can be improved. Persons whose names have been rejected should at least be made aware of what reasons weighed with the government or the collegium when making that decision. Right to information is a fundamental right. But it should not be in the public domain also. What has been done in the recent past is another extreme, where Collegium resolutions (with reasons) are published on the website.

If there is any adverse material, the candidate recommended should at least be called and given an opportunity to explain. Every court has been talking about the principle of natural justice in even administrative action, but while making judicial appointments, that principle is being violated by the Supreme Court and High Courts. That is not in line with the constitutional ethos.

Giti: In one chapter, you speak about the elevation of Justice MR Shah who, instead of being transferred as was recommended, was elevated to the Supreme Court out of turn. What changes do you hope to see in the Collegium system to prevent such cases?

Asim Pandya: It is a good question but the answer is very difficult. The National Judicial Appointments Commission (NJAC) was struck down as being unconstitutional, so now we will have to think of reforms. Now I think one important thing that has happened is that those candidates whose names are recommended, they are called for at least a personal interaction. That is a welcome step. During this interaction, I think it would be ideal if he is told about any adverse material and asked to give an explanation.

I also think the decisions of the Collegium should be justiciable. It should be subject to judicial review because even if you are in a high position as Supreme Court judges, judicial review is part of the basic structure of the Constitution.

Today, only eligibility is subject to judicial review, but suitability is not. Most of the criteria of suitability are objective and, therefore, they can also be reviewed. I think that if suitability is also made open to judicial review, it will improve the system.

Giti: Recently, controversy broke out at the Gujarat High Court over an interaction between Chief Justice Sunita Agarwal and the President of the GHCAA. What are your thoughts on the incident?

Asim Pandya: I think everybody owes a responsibility to be respectful to each other. Even if a judge is in power, he's supposed to maintain full dignity and lawyers are also supposed to do it. You (lawyers) always say that you are an officer of the court. So being an officer of the court, we are supposed to be respectful to the bench, and judges have also the same reciprocal obligation to treat every lawyer, junior or senior, with dignity. That is a most fundamental aspect of the judicial system, and it should not be compromised under any circumstance.

Giti: You've also spoken about the Gujarat Bar's support for certain judges. The Bar protested against the non-elevation of Justice Akil Kureshi and against the proposed transfer of Justice Nikhil Kariel to name two instances. What impact can such protests from the Bar have?

Asim Pandya: In one case, there was a good result because Justice Nikhil Kariel was not transferred. He is a very good judge so everyone was surprised at the transfer proposal. It seems that somebody was displeased when a matter was remanded back from the Supreme Court, but he delivered the same judgment. Somebody probably misrepresented to the Collegium that this judge needs to be transferred. Our protest was unique. We gathered in the first court and observed two minutes silence. When the Chief Justice asked, we said there is a death of the independence of the judiciary. But the other protests did not give the desired result.

Giti: Recently, you called for a general body meeting of the GHCAA to discuss a sudden change made to the roster of Justice Sandeep N Bhat. What do these sudden changes to the roster indicate?

Asim Pandya: I think this was again a case of misrepresentation by someone who did not like how Justice Bhat dealt with certain case. On account of that only, his roster was changed, which is objectionable. One can understand if the entire roster is changed as the Chief Justice is the master of the roster, but it cannot be done in a vindictive manner. Somebody should not be just sidelined. Somebody is doing good, but if you don't like it, you cannot ask him to sit in a division bench to make him redundant right? If these kinds of things are condoned, it would not be conducive to upholding the rule of law.

Giti: You were the president of the GHCAA, but you resigned from the post. Can you tell us a little about your experience and your thoughts on how Bar bodies can function better?

Asim Pandya: Bar associations have become political addas everywhere. I was lucky that I was elected as President of the GHCAA twice. But I had different philosophies. I had to resign because a lawyer was killed, not in court premises and not in connection with his duties as a lawyer. Members of the Bar insisted that we go on strike. But I said that there are judgments that prohibit boycotts and strikes by lawyers. I was not keen on power, I was more on reforms.

Giti: You yourself are a designated Senior Advocate, but you don't like to use the tag. Could you elaborate on your criticism of the senior designation system?

Asim Pandya: Actually, nobody goes to the root of this. The system of designation was not one of designation in the beginning. It was a simple recognition initiated by the Bombay Bar Association before independence. It was a voluntary kind of recognition. The main problem in those days was that junior lawyers were not getting briefs and it was becoming difficult for them to sustain themselves in the profession. So some seniors decided that henceforth, we will not appear in petty cases and we will not file but we will take help of junior lawyers so they can also survive. And most importantly, he would part with some of his fees to give to the junior.

But the first Law Commission in its 14th report directly compared the system to the Queen's Counsel system, which is absolutely improper. Article 14, 18 and 21 were ignored by MC Setalvad. Article 18 prohibits conferment of distinction other than military and educational distinctions. I do not say that it's a title, but it is definitely a distinction, which is neither a military distinction nor a educational distinction.

The senior designation system has only six years of history before the enactment of the Advocates Act in 1961. Before that, it was purely voluntary. A large number of advocates feel discriminated against and the current system of conferment of designation is most arbitrary, in my personal view.

Giti: Another issue that you seem to be passionate about is the use of regional languages in courts. Why do you think this has so much opposition from the legal community itself?

Asim Pandya: Our mindset from day one has been that we should encourage the English language only. There are now a few High Courts where Hindi is permitted as an additional language. Why not in other High Courts? Because ultimately the system is meant for litigants. The litigants should be aware of the what is going on, not only the outcome. Right now, the Supreme Court with the help of AI is translating their judgments into vernacular languages, but that will not help the system. Nobody is interested in reading the judgment. What transpired in court, what arguments were made, what questions did judges ask. It is a participative process in which the litigant has a stake. He is entitled to know what is happening. He is not simply concerned with the mere outcome...

I am not against English. I have repeatedly said that I love this language. But at the same time, there should be accommodation of our regional languages in High Court proceedings. In the Supreme Court, people come from different States, so English can continue as the language.

Giti: All your previous books have been on matters of law. Why pen a memoir now and why focus on failures and misadventures?

Asim Pandya: I'm turning 60 this July, so I deemed it appropriate to look back at what I have done in my life. While reflecting on my life, I thought that I have had a lot of misadventures and I have failed multiple times and I just wanted the readers to have a smile on their face. I thought - let the future generation know what is happening in the profession. Many say that there was no politics in the past, but even if you look back, in 1975, three judges resigned because they were superseded. So politics is always there in the appointment, elevation and transfer of judges. After a hundred years, if somebody wants to see how the judicial system worked in the year 2025 or before that, this will book will be very useful.