The Bar is too high but never above the law: A response to Ashish Khetan

New Indian Express

4 days ago

Ashish Khetan's recent critique of the Supreme Court Bar Association (SCBA) for accepting a Rs 50 crore donation from industrialists raises legitimate concerns about the integrity and independence of legal institutions. However, his argument, though well-intentioned, is based on a misunderstanding of the structure, functioning, and ethos of the Bar Association, and ultimately conflates institutional assistance with institutional compromise.
To begin with, it is essential to distinguish between the SCBA and the Supreme Court itself. The SCBA is not a judicial body. It is a professional association comprising advocates who practice before the Supreme Court. Its functions include promoting legal education, providing welfare benefits to its members, and upholding professional standards. It is neither a regulatory body like the Bar Council nor a judicial body like the Supreme Court. Consequently, the decisions it takes to support its members, such as facilitating insurance through donations, do not impact the independence or impartiality of the judiciary.
Khetan's central concern is that by accepting donations from wealthy industrialists—'crumbs off the plate of the filthy rich'—the Bar Association may lose its moral footing or be beholden to such donors. This assumption oversimplifies the realities of funding in professional associations and civil society more broadly. Donations are a common and necessary practice to enable institutions—be they bar associations, universities, hospitals, or NGOs—to meet their objectives. Philanthropy, including corporate social responsibility (CSR) initiatives, is an accepted and encouraged practice under Indian law. Indeed, many industrial contributions to social causes are not only legally sanctioned but statutorily mandated.
To equate such support with loss of independence is both speculative and unfair. SCBA office bearers, including Kapil Sibal, have been transparent about the nature of the donations. Sibal's candid acknowledgment that the donors are his personal friends, whom he has represented in court, does not suggest impropriety—it is merely an honest recognition of professional networks. Legal professionals often represent clients across a spectrum, including the government, corporations, NGOs, and individuals. The relationships formed therein do not, and should not, cast a shadow on their integrity or ability to act independently.
Moreover, the independence of the Bar is not a function of its sources of funding. It is a function of the conduct, character, and courage of its members. The SCBA comprises advocates from diverse backgrounds and persuasions, who have time and again demonstrated their willingness to critique governments, stand against executive overreach, and speak out against judicial failings. The presence of a donation does not dilute this spirit. If anything, it enables the Association to better serve its members—especially younger lawyers who benefit from health insurance and welfare measures funded through such generosity.
It is important to stress that the SCBA is not a homogeneous or hierarchical body. It cannot be held collectively accountable for the personal ideologies of its individual members, just as a university cannot be judged solely on the views of its alumni. The SCBA has, in the past, vocally defended the independence of the judiciary, condemned assaults on legal norms, and mobilized collective opinion on matters of national importance. Its institutional memory and commitment to democratic values remain intact.
Khetan's article also suggests that donations from business houses create a perception of quid pro quo. But perceptions must be grounded in fact. If there is evidence of favouritism or compromise, it must be brought to light and acted upon. Until then, insinuations serve only to tarnish without substantiating. In a legal system where integrity is paramount, such allegations require caution, especially when aimed at a collective. The Courts and judges are well trained to ensure that these externalities do not affect their decision.
There is also a glaring contradiction in Khetan's stance: would the same critique apply if the donation had come from the government, which remains the largest litigant in the country? Would accepting government grants then imply that the Bar is compromised in its independence from state control? The logic of his critique, if consistently applied, would prohibit all forms of external funding—an unsustainable proposition.
As a constitutional lawyer and member of the SCBA, I can say with conviction for myself and almost for the whole bar that we are not beholden to any donor or industrialist, whether or not they have contributed to the SCBA. Our professional obligations, ethical commitments, and pledge to uphold the Constitution are not so fragile as to be swayed by financial patronage of this kind.
The judiciary's challenges today lie elsewhere. They lie in the chronic shortage of judges, the staggering backlog of cases, and the lack of administrative reform. The disillusionment of the common litigant stems from the unaccountability of the executive, the inertia of the police machinery, and the government's delays in implementing court orders. To attribute these systemic issues to a donation received by a professional association is to misdirect public ire and distract from the real problems.
Khetan's article, at best, serves as a cautionary note—a reminder that institutions must remain vigilant. On that, we agree. Transparency in accepting and disclosing donations is imperative. Bar associations must remain accountable to their members and to the public. But to suggest that they have already failed this test without evidence is premature and unfair. The Supreme Court Bar Association and its members have a serious culture of pro bono matters. I can name at least half a dozen senior advocates whom I have instructed to appear in cases concerning bails, bulldozer action, students' expulsion, custodial violence, demolition and riots. This includes even the most senior lawyer like Dr. Abhishek Manu Singhvi, Kapil Sibal, Raju Ramachandran, Chander Uday Singh, Huzefa Ahmadi, Sanjay Hegde and Dr Guruswamy.
There is disparity in remuneration amongst legal professionals. This is also because of the unwillingness of the client to remunerate the junior members. The problem of distribution of wealth in India is a problem that is not confined to the legal professional alone. There are systemic changes that must be brought about - and the process of designation of 'senior advocates' being one of them. However, to conflate these with donations is pushing the limits of logic.
The examples of conflict of interest, as mentioned by Khetan are simplistic and do not capture the nuances of professional ethics. A lawyer is engaged by a client, and just as a client may choose to not engage the same advocate for his next matter, a lawyer may also (subject to cab-rank rules) choose to decline the brief. The bar against appearing against a previous client is only when the appearance is marred by legal professional privilege or a relationship with the client. Khetan has mentioned too many subjects in one piece, like in quick-stand, fully reasoned none.
Finally, the role of bar associations in a democracy must be appreciated in its full complexity. These bodies nurture the legal fraternity, facilitate professional development, and serve as intermediaries between the bar and the bench. Their vibrancy and financial stability are essential for the health of the legal system. In supporting such institutions through lawful, transparent donations, benefactors are not undermining democracy—they are strengthening one of its pillars. The Bar is never above the law.
(The author is Advocate on Record, Supreme Court of India and Member of the Supreme Court Bar Association)