The system of appointing judges requires radical changes, Asim Pandya, Gujarat High Court

Asim Pandya is the President of the Gujarat High Court Bar Association and a noted author. If things had worked out differently, he would also be a High Court judge; in 2009, his elevation to the Bench was denied in some rather controversial circumstances.

In this interview with Bar & Bench’s Aditya AK, Asim Pandya talks about the flaws in the current system of appointing judges, politics at the Bar level, the importance of writing skills for a lawyer, and more.

Aditya AK: How were your early days in the profession?

Asim Pandya: When I started, I found it difficult to sustain myself in the profession. In the early days, there is more emphasis on learning, rather than earning. In the first year, I did not get a chance to utter a single word in court! My senior was Mr. KG Vakharia, who had six or seven juniors, of which I was the junior-most. Because of that, I did not get a chance to appear in court.

Actually, it was a question of survival for me in the initial days. Therefore, I pursued LL.M., so that I could at least get lecturership and survive in the profession. By giving lectures at LA Shah Law College and at Chartered Accountancy institutes, I was able to earn some money.

Aditya AK: What changes have you seen at the Gujarat Bar and the Bench over the years?

Asim Pandya: There are no real changes, only a change of perception. When we were raw juniors, we felt that judges were always knowledgeable, upright and honest. But it is not always so. As you pass through various phases of your career, you start learning many things. That is when your perception changes and you feel that judges have the same weaknesses as we lawyers have.

According to me, human beings are always the same, since time immemorial. They are subject to the same good qualities and weaknesses. So there are good judges and bad judges all the time.

As far as the Bar is concerned, I feel that every new generation is more intelligent than the last.

The lawyers of the past were good, and so are the present ones. If I see someone who has twenty-five years more experience than me, I will say that he is knowledgeable. But once I have been in the profession for twenty five years, my perception may change.

Aditya AK: What drew you to Bar politics? 

Asim Pandya: From the beginning, I have been a rebellious person; I never accept anything as it is. I always consider whether a layman will appreciate this kind of legal system. From day one, I had an inclination to do something for the society, for the Bar. That prompted me to write books to share my thoughts with my brothers and sisters in the profession.

Ten years ago, I contested the elections just for the sake of it. That time, some political person would win because of his vote bank. I stayed away from politics until recently.

For the last two years, I was Vice-President of the Bar Association, and this time, I ran for the post of President, and fortunately I was elected. A retired Chief Justice of the Bombay High Court congratulated me, saying that for the first time, somebody who is not political is elected as President!

Aditya AK: What issues have you taken up for the Bar?

AS: As soon as I took charge, I invited suggestions from the members of the Bar. We made a representation to the Chief Justice in August regarding infrastructure, litigant-related issues, quick disposal of cases etc.

I also noticed that lawyers had stopped caring about the administration of the Association and had accepted the flaws in the legal system. So to let the 1,500 members know what is happening at the Bar, we launched our website. It was a big step towards achieving transparency. All the audited reports for the last three years, and all resolutions passed by the General Body are on the website.

Aditya AK: You were to be elevated as a judge seven years ago.

Asim Pandya: I was recommended for judgeship in 2009 by then Chief Justice KS Radhakrishnan. Around eight names were sent to the Supreme Court, which initially approved all of them.

[But] when it comes to these matters, there is a general tendency to make anonymous complaints about people who are recommended. I do not know what happened, but out of eight, only two persons were appointed, and we came to know this only when their warrants of appointment were issued.

First of all, in this system, a candidate is invited; there is no application involved. After you give your consent, suddenly you find that other persons are appointed and you are not.

There is no system of sending any intimation saying that ‘We regret that your recommendation has not been accepted by the Supreme Court’.

Let alone assigning the reasons, there is no courtesy of even giving an intimation.

There are many lawyers who are eligible to be appointed as judges, but they may not fall under consideration because they may not have a good practice and get the opportunity of being noticed by the collegium. The system is such that only those who have the opportunity to appear before the Chief Justice or other judges are recommended.

These are the flaws I found in the system, and therefore I challenged it.

Aditya AK: How did you approach the challenge?

Asim Pandya: I researched for more than six months; it was not a simple knee-jerk reaction, it was not a question of ego. I genuinely felt that this system of appointing judges requires radical changes.

First of all, it should be a transparent system. A candidate against whom objections are made, should be made aware of those objections. There should be an opportunity to render some kind of explanation, even if ultimately the Supreme Court may not accept the explanation.

There is also the fact that the decision of the Supreme Court collegium is not amenable to full-fledged judicial review. Merely because they are Supreme Court judges, it is not a ground for excluding a full-fledged judicial review. [Judicial review] is part of the Basic Structure.

The discussions of the collegium and the reasons recorded must all be transparent.

My other suggestion was that before you recommend the names to the Supreme Court for elevation, you should make enquiries of the person’s credentials: his antecedents, whether he is affiliated to any political party etc. Only then should they recommend and invite. But the system is reverse; first you are invited, and then objections made.

Aditya AK: How can this system of appointments be improved?

Asim Pandya: Like the Public Service Commission, there should be a Judicial Service Commission. When elevating people from the Bar, it should be ensured that the lawyer has at least fifteen years of practice and should not be less than forty years.

For all the people satisfying these criteria, there should be a competitive exam. On qualifying the exam, thereafter you look into his credentials. Right now, usually only those people who have a good practice, and those having godfathers in the judiciary are selected.

I made these suggestions in my challenge in the High Court, but it was dismissed, since nobody wanted to open the Pandora’s Box.

Aditya AK: There is a perception that of late there has been a lot of political influence on judicial appointments.

Asim Pandya: It is a myth that the Executive influence was not at all there. Article 217 requires that the appointment is required to be made by the President. Now he is not supposed to act on his own discretion; he must work on the advice of the Council of Ministers, so automatically the Executive plays a role.

From the beginning, the Executive has had a say in the appointment of judges.

Some people feel that since the Council of Ministers is directly accountable to the people, it should have a say. Therefore, to some extent, such interference is required.

Aditya AK: What is your take on the recent Yatin Oza controversy?

Asim Pandya: His allegations were made on the basis of evidence he had in his possession, not merely on hearsay. On the basis of these complaints, the collegium took a decision to transfer these two judges.

They must have undertaken a detailed inquiry into this matter. One judge has already been transferred, but the transfer of the other judge seems to have been stalled by political intervention. I would only say that the language that was used was not good. But he had tendered an apology for that.

Aditya AK: Being quite a prolific author yourself, how important are writing skills for a lawyer?

Asim Pandya: Often, the petitions I see are not well drafted. There needs to be more clarity in writing. Most of the lawyers are not aware of what kind of proceedings they are doing, in the sense that for Article 226 petitions, they would simply follow what their seniors were doing. This leads to misunderstanding of the scope of the provision.

Sometimes, this misunderstanding exists in the mind of judges as well, and this has led to absolutely wrong judgments. For example, in the Supreme Court judgement of Radhe Shyam v. Chhabi Nath, it was held that a writ of certiorari would not lie against subordinate courts. I have criticised that judgment in an article. The 1954 and 1976 editions of Halsbury’s Laws of England have clearly said that all subordinate courts are amenable to certiorari jurisdiction.

Research and writing makes a very big difference in your practice, because it helps you see the same problem from different dimensions.

One must think and pose questions. Just because it is a Supreme Court decision, does not necessarily mean it is correct. They may be binding precedents, but whenever it doesn’t appeal to your common sense, you must research on it and accordingly criticise it.

(Views expressed in this interview are of Asim Pandya, President of Gujarat High Court Bar Association. Bar & Bench neither endorses nor is responsible for the same)