Litigants should have adequate information about judges before deciding to approach the judicial system.
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JUSTICE Uday Umesh Lalit became a judge in the Supreme Court of India on August 13, 2014. He is scheduled to become the Chief Justice of India in August 2022 after the retirement of the current Chief Justice of India N.V. Ramana.
Before becoming a judge of the Supreme Court, Justice Lalit did not serve as a judge at any level. Instead, he spent his entire professional career as a lawyer. In this context, it is interesting that his official profile page on the Supreme Court website does not mention any of the companies, corporations, political parties or other prominent private clients he worked for. The only thing disclosed in his profile is that he served as a special public prosecutor for the Central Bureau of Investigation. The profiles of the judges are supposed to highlight important aspects of their professional careers. Judges mention all kinds of professional distinctions in the profile, including being invited for lectures in prestigious universities and being governing body members of universities.
None of the lawyers directly appointed to the Supreme Court in the last 20 years disclosed any prominent private client in their respective official profiles. Does it mean that none of these judges, who had such distinguished careers as lawyers, ever worked for any company, corporation, political party or prominent individual clients?
Does it mean that in his long career as a lawyer (34 years), Justice Lalit did not represent any prominent private client? None of the other lawyers directly appointed to the Supreme Court in the last 20 years (Justices N. Santosh Hegde, R.F. Nariman, Indu Malhotra, and P.S. Narasimha) disclosed any prominent private client in their respective official profiles. Does it mean that none of these judges, who had such distinguished careers as lawyers, ever worked for any company, corporation, political party or prominent individual clients?
The answer is not in the affirmative.
Over 90 per cent of Supreme Court judges appointed by the collegium since its inception in 1993 were High Court judges who worked for the majority of their professional career as lawyers. Just over four per cent of Supreme Court judges were High Court judges who worked in the subordinate judiciary for the majority of their career. Thus, the overwhelming majority of judges working in the Supreme Court, for the majority of their professional career, were lawyers.
When we look at the official profile of Supreme Court judges in the past 20 years who were lawyers before becoming a high court Judge, we again find not one mention of any private client. Again, does this mean that none of these judges, who had such stellar career as lawyers, ever worked for any private company or corporation?
The answer, again, is not in the affirmative.
Most importantly, is it merely accidental that not a single judge who has been a lawyer is willing to disclose any details about her private clients?
The answer is unlikely to be in the affirmative.
Also read: Judiciary cannot neglect transparency and accountability in its own bastion
Strategy of non-disclosure
The fact that judges do not mention anything about their private clients is part of an entrenched trend as part of which judges do not share much about themselves. We are not even getting into to the sensitive territory of assets and wealth. A study on the disclosure practices of 122 Supreme Court judges who held office between July 11, 2000 and August 8, 2019 reveals the great reluctance on the part of our judges to disclose even the most basic details about themselves. The relevance of July 11, 2000 lies in the fact that it is the oldest date for which an archived webpage of the Indian Supreme Court is available with specific links for the profiles of sitting judges. Thus, everybody who was a judge on the said date and everybody who became a judge thereafter, had clear knowledge about the existence of a profile page on the Supreme Court website.
The overwhelming majority of judges working in the Supreme Court, for the majority of their professional career, were lawyers.
The data shows that only 46.62 per cent of judges reveal the institution from which they acquired their qualifying law degree. Even less disclose the year in which they acquired their law degree (22.95 per cent). (Figure 1)
Figure 1: Percentage of judges disclosing educational detailsJudges are also coy about sharing their professional details (Figure 2), especially details which have the potential to reveal conflicts of interest. We see that only 10.66 per cent of judges reveal the chamber where they practiced and got groomed. As anybody familiar with the reality of the legal profession in India would know, the chamber a lawyer belongs to is the most important aspect of her professional identity.
Figure 2: Percentage of judges disclosing professional detailsJudges need public trust
Lacking public trust and confidence is unsustainable for the institutional identity of the judiciary. The relevance of the judicial organ rests on the continued faith of the people that judges are capable of a non-violent and impartial resolution of disputes. Without the public reposing confidence in judges, there are legitimate existential questions for the institution to address. Also, greater trust increases the chances of voluntary compliance with the judgements of the court. Consequently, earning trust is more critical for an institution like the judiciary compared to the executive or the legislature, which have coercive methods at their disposal to secure obedience.
It is unquestionable that judges need people to trust them more than people need to trust judges. After all, thousands of disputes, even serious ones, get resolved in this country without any kind of judicial intervention. However, when enough people get disillusioned with the judicial system, there won’t be much logic left for the judiciary to exist in its current iteration.
Importance of disclosure practices
The role of public trust in the institutional relevance of the judiciary raises a crucial question: how to trust someone about whom you barely know anything? Without a minimal threshold of information about an individual, how to assess the trustworthiness of such an individual?
Only 10.66 per cent of judges reveal the chamber where they practiced and got groomed. As anybody familiar with the reality of the legal profession in India would know, the chamber a lawyer belongs to is the most important aspect of her professional identity.
Unlike the federal judiciary in the United States where judges are appointed through confirmation hearings which are open to the public, with the infamously opaque manner in which the collegium in India operates, there is nothing that a common woman can learn about our judges from the appointment process.
The most ironic thing is the manner in which the Supreme Court itself has upheld the right of the people to know more about the politicians contesting elections. The court has used the sound principle that voters should have more information about the candidates before deciding on who to vote for. However, another iteration of the same principle can be framed for judges as well. Litigants should also have adequate information about judges before deciding to approach the judicial system.
The court used the argument of trustworthiness to discredit the participation of the executive in judicial appointments while deciding on the validity of the National Judicial Appointments Commission which sought to replace the collegium. The court cited notable instances where the political executive can be said to have been morally compromised. Inherent in this exercise was the unchallenged premise that judges can be trusted. One can see traces of this premise when judges are requested to recuse themselves from judicial proceedings or other scenarios. In this worldview, judges expect that they should be trusted without question regardless of the conflicts inherent in the circumstances.
While it is not entirely wrong for judges to want that they be trusted, to expect that they be trusted without telling the people much about who they are is a bit problematic, to say the least. After all, we are all taught a basic rule since childhood: don’t trust strangers.
