Too many things up in the air, first generation counsel are the collateral: Aditya Sondhi on judicial appointments [Part I]

The debate over the lack of transparency in the Collegium system of judicial appointments resurfaced yet again in February this year, when Senior Advocate Aditya Sondhi withdrew his consent for elevation as a High Court judge.

Given that he was left in the dark over his appointment for over a year since his recommendation, Sondhi decided to withdraw on principle.

In this interview with Bar & Bench, he reveals that the decision was also a sign of protest against how the Bar was being treated during the appointment process.

In the first of this two-part series, Sondhi speaks about what ails the system of appointments, the perceived lack of independence of investigative agencies in the country and more.

Debayan Roy (DR): You withdrew your consent for elevation as a High Court judge more than a year after you were first recommended. Apart from the lapse of time, what were the reasons for doing so?

Senior Advocate Aditya Sondhi (AS): I withdrew my consent one year after being recommended, and five months after being reiterated. Lapse of time is of course the literal reason, but underlying that is the treatment of a counsel who has been not just recommended, but reiterated by the Collegium. You are left in limbo, while other appointments are made.

In my case, there were two batches of appointments that took place - one was of two learned colleagues from the district judiciary who were recommended along with me, and in the interim, there was another appointment that took place. So, that gives you a certain message that the executive is averse to your ultimate appointment. That basically presents you with a deadlock, which can, in cases like mine, where we are first-generation lawyers without any influence of sorts, can only be broken by my doing something.

So, it becomes a matter of moving on in life, a matter of your self-respect, a matter of how the Bar is being treated at large, which is an important part of my decision. You must’ve heard a complaint that members of the Bar who are doing reasonably well don’t accept judgeship. But here is a case where I accepted the call to duty and being not just recommended but reiterated, which you know as per the PLR projects case, is time-bound. So, in this paradigm, if nothing is going to change, then it becomes more than just a function of life, it becomes your entire life in a sense, that you are kept in no man’s land.

I don’t have to tell you the sacrifices that go with accepting judgeship, not just when you’re elevated, but prior to that. All told, it doesn’t feel right, and it tells you that the Collegium’s reiteration is not being adhered to by the executive. Then, how do you change that deadlock? After thinking deeply about it, I figured that the only way to change that deadlock was for me to withdraw and honourably move on. That is where my decision comes from.

DR: Over the years, you have been a vocal critic of the laws and policies of the government, from the AFSPA to the Citizenship Amendment Act (CAA). Do you think these views prompted the Centre to dally over your elevation?

AS: I don’t think you can call me a very stringent critic of this government’s policies, in the sense that the AFSPA has been there before this government and I don’t recall making any public comments about the AFSPA in any case. As far as the CAA is concerned, yes I did certainly speak about it from a constitutional position, but equally so did I about this government’s Economically Weaker Sections (EWS) policy which I publicly said is constitutionally kosher.

So these are not criticisms of a government per se; I am not a political person and neither am I an activist. My take on a particular matter is really legal, it obviously in this case has a social overlap. Therefore, I would like to correct that perception that I’ve been some critic of the government. I am not. I have had a constitutional position on policies both ways. Whether that has impacted the outcome, I don’t know because nobody tells you officially where you stand. The government’s involvement is really prior to your recommendation, as you know it goes through many rounds. And thereafter, there is a second stage, where even after recommendation, the government has the right to send the file back.

At the first stage, obviously when my recommendation went through, I would think that ultimately the government had no difficulty, otherwise I wouldn’t have been recommended at all. Secondly, as to why the file was returned, I don’t know; those reasons are never really communicated to us.

So that brings me to my earlier answer, that it’s more a guessing and a waiting game. Is it because of something I said about the CAA? I don’t know, the grapevine sometimes says that it is. But there is really no way for me to know, this is something that only the executive can answer.

DR: Did you try reaching out to the Collegium before withdrawing consent? Was there any communication post the submission of withdrawal of consent?

AS: No, of course I did not reach out, in what capacity would I reach out to the Collegium? To me, this is a sacrosanct and a very professional process, where things should happen the way they are supposed to. My reaching out to the Collegium was only in terms of writing to the Collegium, headed by the Chief Justice, informing them of my decision to withdraw. Thereafter, I have most certainly not reached out to anyone or received any response from the Collegium in relation to that either.

DR: Do you think the Collegium ought to once again publicly reveal the reasons for recommending or not recommending persons for judgeship, in the interests of transparency?

AS: If you are speaking with reference to my case, the Collegium did consider a recommendation and then reiterated it, so that question doesn’t arise. Those reasons are for the government to communicate, and for the Collegium to consider. Beyond that, I think it’s a slightly delicate issue, because those reasons should then not lead to the washing of dirty linen in public; there are careers and reputations at stake.

We’ve seen cases where the reasons given by the executive to not appoint or reject a file can swing between good reasons to some unsustainable ones. But, releasing them to the public, I’m not so sure what purpose that serves. Certainly, the individuals concerned have a right to know, but beyond that, I don’t think so.

DR: The existing system of appointments provides no recourse in cases where the government does not process a reiteration. How can this and other flaws in the system be addressed?

AS: Actually, the judgment in PLR projects is binding - it’s law and it clearly says that upon a reiteration, an appointment should take place within 3-4 weeks, and you would think that the government would adhere to that. It has been fairly unprecedented that reiterations have also not been acted upon.

So, in cases where people have been aggrieved. they do have recourse. In fact, the Bar Association in Karnataka filed a contempt petition in the Supreme Court, alleging that the non-appointment of 8-9 candidates pan-India was in contempt of the directions of the Supreme Court. Obviously, I would not go down that route because, in my opinion, an appointment to the Bench should not take place through litigation.

We’re not government servants and I want to make that very clear, that we are counsel who have accepted a call; we’re not going to go to court on it. At least I, personally, am not going to go to court on it. But if somebody chose to and wanted to, I believe they do have an actionable right. Now, that contempt petition, I’ve been told, has not been listed before the Supreme Court since its filing sometime in September (last year); I could be wrong, but that is the information I have. So, one doesn’t know how the Supreme Court will view it on the judicial side, but it is still already a question that is pending in that proceeding.

DR: Does the role of the Intelligence Bureau in the appointments process need to come under the scanner?

AS: "Under a scanner" is a strong thing to say, because I most certainly believe that the executive should have a say in the appointment. It is not that the Collegium can unilaterally appoint judges.

So, that means that if at the pre-recommendation stage, the executive, through its intelligence agencies, wants to gather information and place a report before the Collegium, I would think that any government is entitled to that. And if it’s looked at in that sense, then the role of the IB is valid. Now beyond that, whether it has to come under a scanner depends on whether that role has been used or abused from time to time.

I am giving you my own example, that my IB clearance would have obviously taken place before recommendation and there is nothing that could have come in during that stage, otherwise my recommendation and reiteration would not have happened. So, I do think that the role of the IB is important at that stage. Whether the Collegium feels, historically, that the reports have been credible or not depends upon the Collegium itself.

DR: Investigation agencies like the CBI and ED have been criticised for being used by the current dispensation to target the opposition. What do you think needs to be done to ensure their independence?

AS: If there is subsequent material that, for some reason was not available earlier, I would still go a step further and give that leeway to the executive, and say ‘look you’ve discovered something that genuinely comes in the way of someone’s appointment which the Collegium has missed’; I would even give that one avenue to them. But my point is, a) that should come to the Collegium; and b) once the Collegium reviews it and makes a reiteration then, I think it is a fait accompli and that’s the law. Otherwise it would be an endless process. There has to be credibility also with this process.

DR: But is it like the hands of the Supreme Court are tied when the executive does not act upon reiterations.

AS: I don’t think their hands are tied. We are speaking of the Collegiums of perhaps the most powerful court in the world. It would be a difficult position to accept that their hands are tied. I don’t think their hands are tied and I’ve seen the Supreme Court and the Collegium most certainly act when it wants to. In my case, unfortunately, after my reiteration, there was no movement from any quarter.

Which is why I said that if two strong constitutional bodies are deadlocked, then how do you shift things? I will certainly, not in principle, go so far as to say that the Collegium’s hands are tied. It has its role administratively in the matter of appointment, it has its role constitutionally in that regard, and it also has its judicial power. I mean, what are the reasons that in PLR Projects the Court found it necessary to lay down those directives in the form of a judgement? There must have been a reason for it, right? After the National Judicial Appointments Committee (NJAC) was struck down, one looked at a new and evolving Collegium, a lot of things happened on the administrative side. Perhaps the Court felt that it was not enough, and which is why you crystallise it.

More importantly, I think, rather than taking it down the route of judicial directions, contempt and adversarial litigation, I do believe that in the case of appointment to constitutional posts, tradition is extremely important, precedent is important. I don’t mean judicial precedent, but precedent in the way you act.

We have believed that reiterations were final. Many governments have delayed appointments. We know that during Emergency and later, Chief Justices were passed over, judges resigned, Justice HR Khanna resigned, that’s not new to our system. Equally, we’ve reached a stage where we believe that reiterations, at least, are final and then appointments would take place. It seems that that’s not the case and this is where this new state of flux is difficult for the system - it leaves too many things up in the air. In some sense, people like us - first generation counsel - become the collateral.

DR: But how can independence of the judiciary be ensured especially when dealing with agencies like the CBI, ED, etc?

AS: A lot of this comes down to the individuals heading these offices. The question of independence is not just about the CBI or the ED, but the larger question is the independence of the judiciary, because that is part of the basic structure. How is that independence ultimately to be achieved?

I think it comes down to individuals performing their duties neutrally, and standing true to the Constitution and to their conscience. This may sound like a philosophical answer. But honestly, in my years of practice and study, I believe that beyond a point there is only that much that the law, regulation and stricture can do; powers are there. You have the Prakash Singh judgment for autonomy of the police, and it has been force for 20 years.

DR: Is it easier said than done? Imagine a CBI or ED Director being at loggerheads with the government.

AS: That’s the point. Do you see it as being at loggerheads with the regime or do you see it as basically discharging your duty and standing true to your worth? This is not a new problem. Historically, you have enough illustrations of officers heading these outfits who have done the right thing. And this I’m saying without pointing fingers at any particular government.

Look at TN Seshan of the Election Commission, KC Chandy who was the Commissioner of Police here, Prakash Singh himself. I would also look at judges who did the right thing and of course, in many cases, they have paid the price. But then why are they celebrated? Why do you look at Justice HR Khanna or Justice Jayant Patel, who was the senior most judge in the Karnataka High Court who was passed over for Chief Justiceship and put in his papers that very afternoon? Why do we look at those names for having done the right thing? You do it exactly because they stood tall. Is it easy? No I’m sure that it is not, but it is tougher to do the wrong thing, it is tougher to not stand true to the Constitutional oath.

I think larger questions arise. How do you want people to see the role that you are discharging? How do you want history to remember you? What example are you setting to your peers and your juniors? I mean, if you’re saying that this is par for the course, then in that case it’s notional power, that’s not power in the true sense, because power minus neutrality, minus accountability is not power then. Then, you’re basically acting at the behest of the establishment and most certainly that’s not what the CBI or the ED, or the intelligence agencies or the judiciary are there for. It can have a larger debilitating effect on our democracy.

None of these things that happen are in a vacuum, they spill over, and they spill over ultimately to the faith of the people. Where is the strength of the Indian legal system ultimately? It’s in the faith of the litigant, of the citizen, of people who talk about law, that’s where the strength is. If that begins to dissipate, as it is, the repercussions can be very serious, in some cases irreversible and you don't want that.

Stay tuned for Part II of the interview.