“The typical Indian judge is Hindu, upper-class, upper-caste and male.” The statement drew a few titters at an event in the national capital late in August. But Dr Mohan Gopal, former director of the National Judicial Academy, was speaking in earnest and many in the audience, a gallery of legal luminaries, were nodding grimly. Barely 48 hours later, instead of genteel, theoretical critique, there was the scrum of a real battle. All the gavels in India’s judicial courts coming down in unison could not have restored order after the fifth seniormost judge in the Supreme Court, Justice Jasti Chelameswar, refused to attend a meeting of the SC collegium over lack of transparency and arbitrary appointment of judges.
Judges appointing judges, a system created by the Supreme Court in 1993, was akin to the Gymkhana Club deciding on new members, Union finance minister Arun Jaitley, a senior lawyer of long standing, had quipped in October 2015. Sensing the mood, the Supreme Court had asked the Union government in December 2015 to help it evolve a ‘Memorandum of Procedure’ in order to streamline the functioning of the collegium. With no agreement so far on what method to choose for this, and with the apex court divided over Justice Chelameswar’s charge, the court has eventually agreed to hear, this month, a petition that accuses the collegium of promoting relatives and “monopolising the higher judiciary by the kith and kin of sitting and former judges of the Supreme Court, legal luminaries and their juniors”.
The numbers can give pause to even an arch euphemist. The National Lawyers’ Campaign for Judicial Transparency and Reforms (NLC), the association that filed the petition, says that out of the 28 sitting judges of the Supreme Court at present, as many as nine happen to be close relatives of former judges, including a son, a grandson and a nephew of former chief justices of India. Another is the son of a former chief minister, while one is the son of a former advocate-general of a state (see box). As for India’s high courts, the petition, first filed in the SC by the NLC in 2014-15 during the NJAC case, claimed that a large representative sample from that period showed that nearly one-third of the HC judges surveyed happened to be related to sitting or former judges and legal luminaries. Their data showed that 88 HC judges out of 300 surveyed across 13 high courts fell in this category. And if one refines the field to exclude the one-third (roughly 100 out of 300) who are promoted to the bench from the lower courts—a norm followed since the British days—the proportion of kith and kin who are appointed judges directly from the Bar rises to almost half, the NLC petition showed.
There is no doubt whatsoever about the merit or competence or integrity of the judges.
The NLC offers the caveat that the data is incomplete, largely because the complete information is not available in the public domain. And some big HCs, like UP’s, were not part of the survey. But enough anecdotal evidence exists to indicate the phenomenon is not unknown in the remaining courts. For instance, a large number of recommendations for elevation as HC judges sent by the Allahabad High Court were rejected by a cautious SC collegium, as widely reported this week.
Only seven lawyers have been elevated directly from the Bar to the Supreme Court bench since Independence, three of them (Rohinton Nariman, U.U. Lalit and L. Nageshwar Rao) in the last two years. The previous four were S.M. Sikri, S.C. Roy, Kuldip Singh and N. Santosh Hegde.
In British India, one-third of the judges were recruited from the lower judiciary, comprising people from the Indian Civil Service, and the remainder from among the pool of practising lawyers. In 1908, the then advocate-general of Bombay, Basil Scott, was directly made the chief justice of the Bombay High Court. Since Independence, lawyers began declining offers for elevation and, increasingly, sitting high court judges were elevated to the apex court.
There is no doubt whatsoever about the merit or competence or integrity of the judges. The issue here is that choices tend to be made from a shallow pool of probables. Marry this to the other issue at stake: the fact that appointments are decided behind closed doors by a collegium, with only the names being made public, not the reasons for acceptance or rejection.
A former SC judge, privy to the exercise, says during his time collegium meetings did not last long; nor was there much deliberation. “One or two judges would just say: ‘I know the person. He is not fit to be elevated.’ That would be the end of the discussion, with others keeping their own counsel,” he says. That the SC collegium is not above making errors of judgement is well chronicled. The decision to elevate P.D. Dinakaran, chief justice of Karnataka and then Sikkim HC, had to be rolled back after allegations of corruption were raised in 2009. He resigned on July 29, 2011, after impeachment proceedings were initiated.
“During the NJAC case hearing, we had said a number of judges were from among the relatives of former judges,” says NLC president Mathew Nedumpura. “Harish Salve brushed us aside, hinting that we were ‘people from the outside’. Fali Nariman called us disgruntled people. We agree we are disgruntled because of this system. We gave (our points) in writing, but both sides had a large army of senior advocates who were not ready to hear us.”
Nedumpura adds: “The right connections seem to make a difference. These are people from the elite sections of society. Several appointments are clearly influenced by political considerations. Overall the selections are from a very small, insulated pool. The system is unfair to first-generation lawyers even if they are brilliant.”
On September 5, adding ballast to this dissenter’s point of view, the SC said it would hear NLC’s petition that a judicial commission independent of the judiciary and the government be created.
“Any relationship with a former judge’s family has had little bearing on the elevation of Supreme Court judges. It just doesn’t work at the SC.”
Gopal Subramanian, Former Solicitor General of India
That HC collegiums have been recommending names of lawyers related to judges or other legal luminaries is no secret. Among the lawyers’ names recommended for the Delhi HC, at least three were said to be related to ex-judges. One of them is the relative of a former judge of the Delhi HC, another the brother-in-law of a lawyer-politician and a distant relative of a sitting SC judge. The third was said to be a relative of a sitting judge of the Punjab and Haryana HC. Among the sitting judges of the Delhi HC is the son of a former governor of two states; another’s father was a judge in the Bombay HC.
Kinship, however, cannot be automatically held against anyone, insist jurists and retired judges. “They can well be deserving candidates,” says Justice (retd) S.S. Sodhi, former chief justice of the Allahabad High Court. “But there are instances where by virtue of being related to former judges, they get special consideration even when they don’t deserve it. It’s unfortunate, but it does happen. Once there is transparency, such aberrations will be rarer.”
Former solicitor-general of India Gopal Subramanian says, “In my analysis, any relationship with a former judge’s family has had little bearing on a judge’s elevation. In the current SC roster, except for incidental relationships with former judges, they are mostly self-made. This just doesn’t work at the Supreme Court (level). The present CJI’s father resigned as an additional judge, that too of a high court. Justice Shiva Kirti Singh was AAG of Bihar and a popular lawyer. His father, Justice Shambhu Prasad Singh, had absolutely no role to play in his elevation. When Justice Har Govind Mishra died, Arun Mishra was only a university student; he struggled his way up with sheer hard work and scholarship. They had a big family that he looked after.”
“Justice U.R. Lalit was rebuffed during the Emergency and his appointment as an additional judge was never confirmed, so he started his practice as a Supreme Court lawyer. Uday U. Lalit was a mere boy at the time and rose up purely on merit. He was appointed directly to the SC. Justice Amitava Roy is again a self-made man and would have been elevated much earlier, except for the fact that he doesn’t do politics. Nobody would even connect him with his father-in-law Salil Kumar Datta unless they studied judicial history minutely. Justice D.Y. Chandrachud is a self-made man with no influence from his father.”
But Nedumpura and others argue that the collegium’s secretive functioning makes it impossible to establish whether being a relative played a part or not. “Names do matter a lot. How do you explain the number of relatives who are appointed?” he asks.
Ironically, while the SC collegium is at the receiving end of criticism for its opacity, even the government does not make public its reasons for rejecting recommendations made by the collegium for appointments or transfers. Indeed, some senior advocates believe the collegium can hardly act on its own. A case in point is the letter to the CJI written by senior advocate Yatin Oza of the Gujarat HC. Oza invited contempt charges from that court for alleging the file containing the response of one HC judge on the proposal to transfer him to Madhya Pradesh was not produced before the collegium. Oza claimed the judge in question had political patronage and had been assured he would not be transferred until later despite the collegium’s recommendation.
Justice R.M. Lodha has become a household name for shaking up the cricket establishment in the SC’s effort to clean up the sport’s administration. His grandfather was an influential lawyer in the Rajasthan Bar; his father and two uncles were judges in the Rajasthan HC. So was Justice Lodha, who eventually retired as the 41st Chief Justice of India. Justice Lodha had stood up for the collegium (through which he himself was appointed) but called for wider consultations. He welcomed Justice Chelameswar’s efforts to promote transparency, but felt differences within the collegium should not have been made public while the process was still being evolved and refined. Many ex-judges have voiced their uneasiness at the opacity, though. After her retirement, Justice Ruma Pal said at a lecture in 2011, “The process of appointing judges to the superior courts is possibly the best kept secret of the country.” She also used the word “mystique”. A well-known jurist echoes the sentiment: “Qualifications for a judge are laid down, but how you become a judge is not known to me.”
“The judiciary preaches transparency, but, on the administrative side, it is more comfortable operating under an opaque veneer.”
Meet Malhotra, Senior advocate
One-third of India’s high court judges are supposed to be drawn from the state’s subordinate judiciary. That proportion is not reflected in the Supreme Court’s roster. Only a few exceptions have managed to travel up through the ranks. One of them, Justice Bhanumathi, has risen up from being a district judge. Justice C. Nagappan was a junior in the chambers of former senior advocate K. Parasaran before the latter became attorney-general. Justice Nagappan joined the Tamil Nadu judicial services as a sessions judge and is now a sitting SC judge.
So how exactly do lawyers become judges? Two-thirds of HC judges are chosen from among senior lawyers. A senior lawyer says relatives of sitting and former judges or eminent lawyers are designated as seniors and made judges quite early. “There is a sitting judge in the Delhi HC whose father was a judge. So the son was easily noticed and he was designated a senior at 45 and made a judge at 46. It didn’t take him long to climb up,” he says. Union MoS for Law and Justice P.P. Chaudhary says, “It’s not just relatives, even lawyers who have worked as juniors of sitting and former judges (get elevated).” The NLC too observes that some judges from the kith and kin category were elevated at an early age.
There are exceptions. Justice L. Nageswar Rao was born in a nondescript village in Andhra Pradesh and, from that humble background, made his way to Delhi to study for the civil services before turning to study law. He returned to Andhra Pradesh and, after a few years in the high court there, he set up office in Delhi without the help of a brother, father or uncle. In less than 20 years of practice, the then law minister first offered him judgeship at a high court of his choosing. Rao declined. In 2014, he was offered a Supreme Court judgeship, but declined due to personal reasons. This year, he was again made the offer when he finally accepted it.
Kinship cannot be automatically held against anyone, insist jurists and retired judges.
But the exceptions, proverbially, prove the rule. Justice Sodhi has a personal anecdote to relate on the lack of transparency. Claiming he was denied elevation to the SC for disagreeing with other judges on their recommendations, he says, “I support Justice Chelameswar; he has raised an issue which I have been a victim of. At least make out a case for publishing the papers after a certain number of years. They can open up the papers for appointment of previous judges, which will itself create a check for any wrongdoing in future appointments.”
In his 2007 book The Other Side of Justice, Justice Sodhi wrote about how, in 1994, he had been initially selected by the collegium, but the then CJI dropped his name from the list later. Here is an excerpt of the operative part: “Names of four high court judges were agreed to. What followed thereafter was the controversial part. Without the knowledge or consent of Justice Kuldip Singh or Justice Verma, CJ Ahmadi wrote and sought the views of Justice(s) M.M. Punchhi and Justice R.M. Sahai. As was expected, both...opposed my appointment. The reasons for their opposition were well-known to Chief Justice Ahmadi and, indeed, to many other judges.” His differences with Justice Punchhi, he writes, went back to the tenure of Justice V. Ramaswami as chief justice at Chandigarh. “While Justice Punchhi had aligned himself to Justice Ramaswami, I stood out prominently among the judges who were opposed to his doings,” he recalls. As for Justice Sahai, “he was unhappy with me on two counts. First, I did not agree to recommend his son for appointment as judge (at Allahabad). Incidentally, his son did indeed later become a judge there. Second, I had transferred Justice S.N. Sahay, his son’s father-in-law, from Lucknow to Allahabad.”
Justice Liberhan told Outlook, “I was ignored for four years. Directly or indirectly, the collegium used to send names for HCs too. When I was chief justice, I saw that favouritism worked through a mutual exchange. ‘You accommodate my man and I’ll accommodate yours’ was the tacit policy.” Another former HC judge, Justice Bhaskar Bhattacharya, had alleged that he was left out because he had objected to the elevation of then CJI Altamas Kabir’s sister to the bench. And the subsequent exchanges, despite Justice Kabir’s caveats that he had recused himself, only deepened the sense of a closed system that could do with more light.
Outlook sent an e-mail to the office of the Chief Justice of India on August 17 requesting an interview. This was followed up with telephone calls to his office and residence. Last on September 5, the reporter left several messages with contact details for the officer concerned. We also tried reaching out to former CJI R.M. Lodha several times, to no avail.
The Twists & Turns
- 1950-93: The President of India appointed judges of the Supreme Court and the high courts on the recommendations of the Union cabinet and in consultation with the ChiefJustice of India.
- 1982: The Supreme Court, in the First Judges Case, rules that consultation with the Chief Justice of India does not mean his/her concurrence and the primacy of the CJI’s recommendation cannot be refused by the President on cogent grounds.
- 1993: While ruling, in the Second Judges Case, that consultation implies concurrence and the CJI’s advice is binding, the SC also creates a collegium of the CJI and the next two seniormost judges of the court to take a call.
- 1998: In the Third Judges Case, the apex court rules that consultation implies consultation with a “plurality of judges” and lays down that the CJI must consult the four seniormost judges of the SC on appointment and transfer of judges.
- 2014: Parliament passes the National Judicial Appointments Commission (NJAC) Bill to replace the collegium system with a six-member commission that would include the Union law minister and two eminent citizens.
- October 2015: The SC constitution bench strikes down the NJAC Act as unconstitutional by a 4-1 majority judgement, the dissenting judgement coming from Justice Jasti Chelameswar, who is also at the centre of the present debate.
- January 2016: The SC and the government begin drafting a new Memorandum of Procedure for appointment of judges by the collegium.
- March 2016: An SC bench dismisses a petition by a former additional judge of the Orissa HC challenging his non-appointment as permanent judge despite the collegium’s recommendation. The bench points out there is no record of the meetings of the collegiums.
- April 2016: CJI T.S. Thakur has an emotional moment during the Chief Justices Conference in the presence of the PM and CMs while making a plea to fill judicial vacancies.
- August 2016: A petition asking whether details of the collegium’s meetings can be sought under the RTI Act is referred to the constitution bench. On I-Day, CJI blasts the executive for holding up appointments to the judiciary. In the background, the two pillars of democracy are deadlocked over drafting the Memorandum of Procedure to be followed by the collegium.
- September 2016: Justice Chelameswar boycotts the collegium’s meeting and demands that proceedings of meetings be recorded for the sake of transparency.
How Others Appoint Judges
US Supreme Court
- Nine judges (life-time terms) appointed through a presidential nomination after Senate’s approval in a public hearing
- State courts: As State laws mandate, ranging from governor’s choices to non-partisan selection boards
- Federal courts: Political appointments by President confirmed by the Senate
Constitutional Court of Italy
- 15 judges with fixed term of nine years
- Five each appointed by the President, Parliament and sitting judges
- Eligibility: Lawyer with 20 years experience, ex-SC judges, law profs
England and Wales
- Judges up to high court level named by appointments commissions, which include lawyers, judges, laypersons
- Supreme Court: Separate selection panel of judges and representatives of appointments commissions
Source: Columbian Journal of European Law and others