Seniority vs merit

Print edition : December 19, 2008

In the matter of promotions and appointments in government posts, there is a need to keep away bias and favouritism and follow transparent procedures.

THE judiciary is again in the news following the Supreme Court collegiums decision to overlook the seniority of three High Court Chief Justices while recommending names for filling Supreme Court vacancies. The Central government has taken exception to this decision and returned the file to the Supreme Court for reconsideration. The inference is that the Central government wanted to know why three senior Chief Justices of the Delhi, Madhya Pradesh and Uttarakhand High Courts had been overlooked. If press reports are correct, the collegium (comprising the Chief Justice of India and the two seniormost Judges in the Bench) has stuck to its guns and reiterated its recommendation to promote the Chief Justices of the Madras, Kerala and Patna High Courts.

As I write this, there is no indication of what the executive proposes to do. Expert opinion is that, as per the Supreme Courts ruling in the Judges Association Case of 1993 and the advisory opinion it gave in 1998, it has no option but to go by the collegiums recommendation. The point is how long the Centre will take to send the file to the President for her approval. We have had in the past instances of at least one President taking his own time in the matter. If both the executive and the President do not display sufficient maturity, the issue could blow into a first-class crisis.

I believe that the executive will ultimately yield and act by the collegiums wishes. The Centre has enough number of controversies on hand, and may not like to add to the list, especially when elections are round the corner. Political sagacity dictates that a government in position does not give an impression of hubris while taking important decisions.

The whole controversy centres round the age-old unresolved debate in public administration whether seniority should prevail over what many regard as the foggy notion of merit while deciding on promotions to ranks in the civil service. Indian administrative history in the post-Independence era is replete with cases of senior officials being superseded to such positions as Cabinet Secretary, Chief Secretary and Director-General of Police (DGP). Supersessions have been on many spurious considerations such as religion, caste or downright regional chauvinism, most of the time masked as adherence to the principle of merit.

No political party is above board in the matter. It is widely known that file notings in respect of top appointments are either written as per the wishes of the Minister in charge or are doctored at the latters directions. It is not uncommon either to reject panels prepared by statutory committees if they do not include a Ministers favourite.

The most abused is the authority enjoyed by groups that are authorised to empanel officials for senior positions in both Central and State governments. In a welcome move a few years ago, Prime Minister Manmohan Singh installed the salutary practice of a group of former senior civil servants of great reputation going through the confidential reports of eligible Indian Administrative Service (IAS) officers before the commencement of the process for the empanelment to Secretary-level posts in the Government of India. This was to impart greater objectivity to a regimen against which several complaints of arbitrariness had been made.

The substance of the matter is that a lot of subjectivity creeps into what should be a clinical process, and there is a need for keeping away bias and favouritism as much as possible through transparent procedures. It is possibly this ambience that envelops civil service personnel management in the country, which unfortunately generates suspicion with regard to judicial promotions also.

Supersessions in the judiciary are not uncommon. Readers may recall the supersession of Justices K.S. Hegde, J.M. Shelat and A.N. Grover in 1973 after the Kesavanada Bharati judgment. Justice A.N. Ray was made the Chief Justice despite being junior to these three Judges. We have the shameful case of the resignation of Justice H.R. Khanna after Justice M.H. Beg, despite being junior, was made the Chief Justice of India. Justice Khanna paid the price for his brave dissenting decision in the ADM Jabalpur case.

While critically analysing the present controversy, one must remember that we have come a long way from the days when it was just one man, namely the Chief Justice of India, who used to recommend names. This position very often led to charges, sometimes valid and often without a basis, of arbitrariness and favouritism.

With the coming into being of the collegium in the last decade, I believe that subjectivity has been greatly brought down if not wholly eliminated. Several senior members of the Bar all over the country do not, however, share this positive view of the collegium. To look for 100 per cent objectivity is preposterous. What we are seeking here is the elevation to the Supreme Court of honest and meritorious Judges who are known to be free from any bias. Undeniably, in the highest court of the land, we need non-partisan, fearless and absolutely straightforward Judges. A brilliant mind is welcome and is often a bonus. In my view, the quality of superior intellect will take second place to honesty and a freedom from prejudices arising from caste and religious differences.

While commending level-headedness in the matter, I will not for a moment take the position that all is well with the present system of selecting Judges for High Courts and the Supreme Court. The collegium method is, however, the best available for the moment, unless a new innovation comes into being, perhaps through a National Judicial Commission which, incidentally, is proving to be a chimera. If we still get some mediocre, highly politicised or communal-minded Judges it is for the government and the higher judiciary to sit together to plug the loopholes.

Former Chief Justice V.N. Khare went on television the other day to say that there is a strict process of verification before someone is appointed to the Supreme Court. He particularly referred to field enquiries made with eminent jurists and lawyers on each name under consideration. (Perhaps the Intelligence Bureau is also associated, as in the case of High Court appointments.)

I do not know how much more can be done to make the system more effective and acceptable to all concerned. If names in the reckoning are publicised with a view to getting a wide cross-section to give its views, we will be opening a floodgate for frivolous complaints. In a country like ours where casteism is rampant, we may hardly have the benefit of an unbiased view on each individual before he or she is appointed either to the High Courts or the Supreme Court.

This does not, however, take care of the question whether the public have a right to know why the three High Court Chief Justices in question were passed over for elevation to the Supreme Court. This is especially because, unlike the United States, we do not have a process of Parliament ratification of each nominee, a provision which could bring out in the open a lot of material for and against a nominee.

One view is that the executive in India performs the role similar to that of the U.S. Senate, and hence one should not take umbrage at the former returning the collegiums nominations for reconsideration. One would be interested in knowing, however, whether in cases of supersession the collegium returns the proposal sent back by the executive with detailed reasons for passing over one or more Judges. In any case, the issue should remain unresolved for ages, given our track record for transparency in every field of governmental activity.

Two of my concerns with regard to the judiciary are worth repeating. While you can keep out from the Supreme Court a High Court Judge who writes poor and perverse judgments, how are you going to make him or her write better orders while continuing to serve in a High Court? What is the mechanism available to ensure that current Judges write more reasoned and objective judgments? Many discerning observers of the criminal justice scene are distressed at the falling quality of judicial orders in some parts of the country. They suffer from language infirmities, and sometimes strange logic as well. This is especially with regard to matters involving corruption of public servants. A High Court acquittal of an accused under the Prevention of Corruption Act, after a lower court had found him guilty on the basis of evidence presented by the prosecution, sends a wrong signal to the deviant among public servants.

In the recent past, discharges in corruption cases have been far too many for an honest citizens comfort. Acquittals on flimsy grounds are an invitation to further acts of corruption, if an accused still holds public office. Do Chief Justices of High Courts have the time and energy to keep a tab on the quality of the output of their colleagues on the Bench?

Secondly, how are we going to get Judges who will not identify themselves with any particular caste or religion? One is appalled by what happened recently at the Dr. Ambedkar Law College, Chennai. The violent clashes among two groups of students at this college were provoked by undiluted caste animosity. When law colleges become such hotbeds of casteism, how can we expect those graduating from them to be neutral, either while practising at the Bar or when elevated to the Bench? It is not my case that all law students carry a sectarian bias. The number is indeed small. But then, are we going to keep the bad hats out of them from reckoning for higher judicial appointments? Such elements, if inducted at any level, will undeniably cause havoc to the fair name of a court.

I wonder whether our political firmament is conscious of the damage done to campuses by their undeniable backing of caste groups. They may not also be willing to admit that the harm caused by them extends beyond campuses to the whole system of governance.

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