The appointment of judges to the High Courts and the Supreme Court has never been so contentious. The Supreme Court’s nine-judge bench’s judgment in the Second Judges’ case (1993) envisages the appointment process to be a joint or participatory exercise between the executive and the judiciary.
Thus, it was expected that the judiciary’s opinion should be dominant in the area of legal acumen of the proposed nominees, while the executive’s opinion would have primacy over their antecedents. Together, the two pillars of democracy were expected to select the most suitable nominees for appointment to the highest court in the country.
But the Narendra Modi government’s non-appointment of Justice K.M. Joseph, Chief Justice of the Uttarakhand High Court, as a judge of the Supreme Court, in accordance with the recommendation made on January 10 by the collegium comprising the first five senior-most judges, has nothing to do with his merit or antecedents. For the record, both the Centre and the collegium seem to agree on Justice Joseph’s outstanding competence and his clean antecedents. Civil society, though, suspects that the Centre is blocking Justice Joseph’s elevation to the apex court to punish him for quashing President’s Rule in Uttarakhand in 2016.
The Centre has sought to red flag factors that many believe are not directly relevant to his appointment: his lack of seniority in the all-India list of High Court judges, whether a small State like Kerala deserves representation of more than one judge in the Supreme Court, and the inability of the collegium to find a suitable nominee in the Scheduled Castes (S.Cs) and the Scheduled Tribes (S.Ts) category.
On April 26, the Centre referred back for reconsideration the collegium’s recommendation for the elevation of Justice Joseph to the Supreme Court. While doing so, it gave “elaborate reasons” for its action in segregating Justice Joseph from another recommendation of the collegium (the nomination of the Senior Advocate Indu Malhotra for appointment as a Supreme Court judge), which it accepted.
On May 2, amid expectations that it would reiterate its recommendation to elevate Justice Joseph, the collegium deferred discussion on the issue. The meeting resolved to identify probable appointees from Calcutta, Rajasthan and Telangana and Andhra Pradesh High Courts, which are currently not represented in the apex court, in order to have a “fair representation”.
The action of the Centre in returning a recommendation of the collegium for reconsideration is not unusual and would make sense if the collegium had overlooked certain factors. But what led to outrage in civil society was the Centre’s decision to segregate Indu Malhotra’s name from the collegium recommendation to appoint two judges and proceed with her appointment, leaving the other recommendation uncertain until the collegium reconsidered it.
Segregation explained Segregation of names happens at two levels. First, when the collegium segregates eligible candidates who are in the consideration zone for appointment as Supreme Court judges, and recommends first those who might be juniors in the all-India list of seniority. This is done in order to fulfil the criterion of giving representation to States that do not have a judge in the Supreme Court at a particular time, or to ensure representation to the minority communities, the S.Cs, the S.Ts or women, in order to promote diversity. Here, the segregation has an unstated objective of conferring seniority within the Supreme Court on such judges, who otherwise could never aspire to be seniors, if their names are not segregated from their senior eligible peers elsewhere, and recommended first. Seniority within the Supreme Court matters while deciding the question of who presides over a bench and whether a judge could make it to the collegium and get an opportunity to become the Chief Justice of India (CJI) during his or her term in the apex court.
When the Centre segregates the names of judges recommended by the collegium, it does so for the ostensible reason that it has got some reservations or concerns over the proposed nominees, and the collegium must reconsider them in that light. When the Centre segregates the names of such persons, on whom the collegium intended to confer seniority within the Supreme Court, and returns them for its reconsideration, it usually seeks the consent of the collegium for this purpose. When the Centre does not seek its consent, it leads to controversy.
In 2014, when the Centre segregated the name of the Senior Advocate Gopal Subramanium, whose name was recommended by the collegium for appointment as a Supreme Court judge, from its other recommendees, it led to a huge controversy. The then CJI, R.M. Lodha, protested against the Centre’s decision to segregate Subramanium’s name without the consent of the collegium. As Subramanium withdrew his consent to be considered for the Supreme Court judgeship, the occasion did not arise for the collegium to reconsider its earlier recommendation.
In its communication to the Centre on January 19, the collegium placed Justice Joseph’s name first, followed by Indu Malhotra. It recommended only these two names, although there were many other eligible candidates and there were as many as six vacancies at that time. Its objective was, of course, to confer seniority within the Supreme Court on Justice Joseph and Justice Indu Malhotra, in that order. Not segregating their names from others in the consideration zone would have led to their loss of seniority in the Supreme Court. This is because some judges are senior to Justice Joseph in the consideration zone, in terms of their initial date of appointment as High Court judge. Similarly, other things being equal, a person elevated directly from the Bar as a Supreme Court judge is placed as a junior to another appointee whose previous experience was as a High Court judge. This indicated that the collegium, in its communication to the Centre, sought the appointment of Justices Joseph and Indu Malhotra in the order of seniority in which it placed them and not otherwise. It is debatable whether the Centre can unilaterally alter this order of seniority without seeking the consent of the collegium.
In a sense, segregation of eligible persons in the zone of consideration as judges of the Supreme Court shows that it aims to minimise the damage likely to be caused by blind adherence to the principle of all-India seniority of judges, which the collegium does not consider as sacrosanct. The subtext is to promote and reward diversity in the apex court, by recognising the merit of the proposed appointees even if they happen to suffer from the disadvantage of being juniors in the all-India list of judges. The all-India list of seniority of judges is prepared on the basis of their initial date of appointment as judges in the High Courts. In the case of direct recruits from the Bar, their date of birth is considered to determine their seniority among them, if more than one is appointed on the same day to the Supreme Court, and subsequently, their date of joining the court is considered to determine their seniority within the court.
The appointment of Indu Malhotra as a judge of the Supreme Court after segregating the name of Justice Joseph, therefore, is considered an instance of serious impropriety. The collegium wanted Justice Joseph to be senior not only to Justice Indu Malhotra but to other eligible judges who are senior to him on the all-India list and who might be considered for elevation in due course. This is also a sign that the Centre wants to reverse the ceding of primacy to the collegium in the appointment process in practice, even though the Supreme Court has repeatedly held that its primacy vis-a-vis the executive ensures independence of the judiciary and therefore is a basic feature of the Constitution.
Indu Malhotra was sworn in by Chief Justice Dipak Misra on April 27. Indeed, a bench consisting of Justice Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud, which, on April 26, heard a petition submitted by nearly 100 advocates of the Supreme Court, seeking a stay on the swearing in of Indu Malhotra, had said that there was nothing wrong if the Centre segregated names recommended by the collegium to ensure expeditious filling up of vacancies. As to the question whether the Centre can reverse the seniority of judges, as recommended by the collegium, the bench showed no urgency and decided to hear it on another day, while refusing a stay of the swearing in of Indu Malhotra, calling the plea “unheard of”.
Seniority vs merit The Centre has suggested that Justice Joseph be placed at number 42 on the all-India High Court judges’ seniority list. At present 11 Chief Justices of various High Courts were senior to him, the Centre pointed out. It took the view that in the case where the High Court concerned was adequately represented in the Supreme Court and also in the appointment of Chief Justices of different High Courts, then this consideration cannot be, and should not be, ignored altogether to the detriment and prejudice of other senior judges.
The Centre claimed in its letter that in view of the sanctioned judge strength of 47 in the Kerala High Court, it had received adequate representation in the Supreme Court and as Chief Justices of High Courts. “At this stage, elevation of one more judge from the Kerala High Court as a judge of the Supreme Court of India does not appear to be justified as it does not address the legitimate claims of the Chief Justices and puisne judges of many other High Courts and forestalls the claim of other senior Chief Justices and puisne judges,” it reasoned.
The Centre drew the attention of the collegium to a sentence in the Supreme Court’s answer to the presidential reference under Article 143 in the Third Judges’ case (1998): “…all that was intended to be conveyed was that it was very natural that senior High Court judges should entertain hopes of elevation to the Supreme Court and that the Chief Justice of India and the Collegium should bear this in mind.”
The collegium, in its resolution on January 10, said clearly: “While recommending the name of Mr Justice K.M. Joseph, the collegium has taken into consideration combined seniority on all-India basis of Chief Justices and senior puisne judges of High Courts, apart from their merit and integrity.”
It added that Justice Joseph was more deserving and suitable in all respects than other Chief Justices and senior puisne judges of High Courts for being appointed as a judge of the Supreme Court.
It recommended Justice Joseph on the basis of the Supreme Court’s judgment in the Third Judges’ case, (1998) which held:
“Where, therefore, there is outstanding merit the possessor thereof deserves to be appointed regardless of the fact that he may not stand high in the all-India seniority list or in his own High Court. All that then needs to be recorded when recommending him for appointment is that he has outstanding merit.”
The Centre’s communication to the CJI on April 26 was silent on this ruling of the apex court.
While the Centre’s communication seeking reconsideration of the collegium’s recommendation on Justice Joseph is a result of its flawed understanding of the legal position, its reference to the need to ensure geographical and social diversity in the court has to be understood in proper perspective.
Seniority conundrum The Supreme Court has a sanctioned strength of a Chief Justice and 30 puisne judges. Supreme Court judges are appointed mainly under three considerations. First, one who has been a judge of one or more High Courts in succession for at least five years. Second, one who has been an advocate of one or more High Courts in succession for at least 10 years. This normally includes legal practice in the Supreme Court, as those who practice there having been enrolled as advocates with any State Bar Council under the administrative jurisdiction of one of the High Courts. Third, one who is a distinguished jurist in the opinion of the President. While the first two considerations have been used all these years to find nominees as judges, the third source was left completely unused. Legal academic Upendra Baxi once observed that successive Presidents of India had been looking with a telescope and had not found any jurist worth appointing as a Supreme Court judge all these years.
There are 24 High Courts in India. While recommending names to the Supreme Court, the collegium of judges usually ensures that no High Court is given undue preference and no High Court is ignored.
In the Second Judges’ case (1993) the Supreme Court held: “ Inter se seniority amongst judges in their High Courts and their combined seniority on all India basis is of admitted significance.” Inter se seniority amongst the judges in their High Courts means, seniority as a judge of the parent High Court from where he or she hails. For example, Justice Joseph is presently the senior-most among High Court judges whose initial appointment was to the Kerala High Court. Combined seniority on an all-India basis means seniority on the list of all judges of all the High Courts in India. Justice Joseph is in the 42nd position on that list. On the list of Chief Justices of High Courts, if the date of initial appointment as a High Court judge is considered, there are 11 judges who were appointed as High Court judges before the date of appointment of Justice Joseph as a High Court judge.
On the other hand, if the date of appointment as Chief Justice of a High Court is considered, Justice Joseph is the senior-most Chief Justice of any High Court. But this seniority does not count as a criterion for selecting a judge to the Supreme Court.
Justice S.R. Pandian, in his concurring opinion in the Second Judges’ case, held: “Though appointment of judges to the superior judiciary should be made purely on merit, it must be ensured that all sections of the people are duly represented so that there may not be any grievance of neglect from any section or class of society. Even in well-advanced countries like the United States or the United Kingdom, regional, social and racial representations are kept in view in making appointments of judges to superior judiciary, without sacrificing merit.”
Why is diversity important Diversity in the highest court in any democracy is important for ensuring a broader perspective when the court is faced with complex socio-legal issues. A judge is obliged to choose between contending legal theories, and the true basis of his decision is often an “inarticulate major premise” outside the law, according to the great American Jurist Oliver Wendell Holmes Jr.1 According to Justice V.R. Krishna Iyer, “Where the question wears a simple look but its answer strikes at life and liberty we must proceed on the inarticulate major premise of human law as the solemn delivery system of human justice.”2
Diversity, therefore, matters because the basis of judicial decisions is often the outcome of a judge’s philosophy, or sometimes prejudices, applied to the facts of the case. To quote Holmes again: “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellowmen, have had a good deal more to do than the syllogism in determining the rules by which men should be governed” (The Common Law, 1881).
To Holmes, every important principle, which is developed by litigation is, in fact, and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions. A judge, he said, was obliged to choose between contending legal arguments, each posed in absolute terms, and the true basis of his decision was sometimes drawn from outside the law, when precedents were lacking or were evenly divided.
The lack of social diversity in the Indian Supreme Court has led to several aberrations in terms of the verdicts handed down by the judges over the years. The recent judgment, delivered by a two-judge bench, on March 20 in DrSubhash Kashinath Mahajan vs the State of Maharashtra , in which the court saw nothing wrong in diluting the S.C. and S.T. (Prevention of Atrocities) Act, 1989, ostensibly for the purpose of achieving “social cohesion”, is a result of what Holmes would have called “the inarticulate major premise” of the two judges on the bench, whose social outlook determined the outcome of the case. Had the court been diverse in its composition, the outcome of this case could have been different.
Geographical Diversity How is a judge selected to the Supreme Court taking into account the basic requirement of merit and without upsetting the balance of representation to different High Courts?
This can be best illustrated with the following example. The Bombay High Court, with its sanctioned strength of 75 judges, always gets due representation in the Supreme Court. It has had a large number of meritorious judges. Of the 45 Chief Justices of India so far, eight have been from the Bombay High Court. Three of the senior-most High Court judges functioning as Chief Justices or Acting Chief Justices (as on May 3) are from the Bombay High Court. They are Justice S.J. Vazifdar, the Chief Justice of the Punjab and Haryana High Court; Justice D.B. Bhosale, the Chief Justice of the Allahabad High Court; and Justice V.K. Tahilramani, Acting Chief Justice of the Bombay High Court. They were appointed High Court judges in 2001 and, therefore, are senior to Justice Joseph, who was appointed in 2004. Now, what is the consideration for recommending Justice Joseph rather than anyone of the other three judges?
There are three judges now in the Supreme Court, whose parent High Court is the Bombay High Court. They are Justices S.A. Bobde, A.M. Khanwilkar and D.Y. Chandrachud.3 Of them, Justices Bobde and Chandrachud are in the line of succession to become the Chief Justice of India, in view of their seniority in the Supreme Court and the dates of retirement of the CJIs before them. When three of the 24 judges (current strength) in the Supreme Court are already from the Bombay High Court, if another judge is elevated from the same High Court to the Supreme Court, it may not satisfy the criteria on geographical diversity.
Some High Courts not represented Another reason mentioned in the Centre’s communication is that some High Courts have no representation in the Supreme Court. These are Calcutta, Chhattisgarh, Gujarat, Rajasthan, Jharkhand, Jammu and Kashmir, Uttarakhand and some smaller High Courts, namely, Sikkim, Manipur, Meghalaya.
This can happen owing to many factors. Take for example the Rajasthan High Court. Justice Dinesh Maheshwari, who hails from the Rajasthan High Court, is the Chief Justice of the Karnataka High Court. He was appointed on February 24, 2016, two years after Justice Joseph was appointed the Chief Justice of the Uttarakhand High Court. But Justice Maheshwari’s all-India seniority is higher than that of Justice Joseph. Yet, for reasons of merit, the collegium found Justice Joseph more suitable in all respects than all judges who are senior to him on the all-India seniority list. If the collegium recommends them together, it is obvious that it cannot place Justice Joseph above Justice Maheshwari on the seniority list. However, if Justice Joseph is recommended first and administered the oath as a judge in the Supreme Court before Justice Maheshwari is sworn in, the order of seniority on the all-India list could be reversed.
Not a single judge from the Jharkhand High Court is at present Chief Justice of any High Court. While it is true that one need not be a Chief Justice to be elevated to the Supreme Court, in practice mostly a judge of the High Court is elevated as Chief Justice before being appointed to the Supreme Court. Jharkhand, being a small State, and its High Court being small with an approved strength of 25 judges (19 permanent and six additional) since its inception in 2000, is yet to make its presence felt among the Chief Justices of other High Courts.
Of the 24 judges of the Supreme Court, the Delhi and Bombay High Courts have the highest representation, with three judges each. Justices Madan B. Lokur, A.K. Sikri and Sanjay Kishan Kaul are from Delhi High Court. There are two judes each from Allahabad, Andhra Pradesh, Karnataka and Madhya Pradesh. The remaining seven judges are drawn from the Odisha, Gauhati, Kerala, Punjab and Haryana, Madras, Patna and Himachal Pradesh High Courts. The four direct appointees from the Bar are Justices Rohinton Fali Nariman, Uday Umesh Lalit, L. Nageswara Rao and Indu Malhotra, and cannot therefore be said to belong to a parent High Court.
Representation to S.Cs and S.Ts In its letter to the collegium, the Centre lamented: “There is no representation of Scheduled Caste/Scheduled Tribe communities in the Supreme Court since long.” S.Cs and S.Ts constitute around 25 per cent of the total population of India and they have not been represented in the Supreme Court for the past seven years. At present, out of the 24 High Court Chief Justices or Acting Chief Justices, not one belongs to these categories. The Indian Constitution contains provisions for affirmative action and socio-legal reforms. It is but just that the court, which upholds such constitutional values, has representation from those who have been historically discriminated. As pointed out by a parliamentary standing committee, the administration of law and justice is intimately linked with the social philosophy of the judiciary, and social philosophy cannot be entirely separated from the social origins of those who dispense justice.
Unfilled vacancies There are only 25 judges as against the sanctioned strength of 31 (including the Chief Justice of India) in the Supreme Court.4 Six retirements are due this year, including that of Justice Kurian Joseph, hailing from the Kerala High Court. Three retirements are within the next two months.5 This means, the collegium of the Supreme Court will have ample opportunity to address all the concerns raised by the Centre in its letter to the CJI.
In the meanwhile, it remains to be seen whether the name of Justice K.M. Joseph already recommended by the collegium is reiterated by it and the government elevates him as a judge of the Supreme Court. As per the law laid down by the Supreme Court in the Second Judges’ case, if the Supreme Court reiterates the name returned by the government, the appointment should be made as a healthy convention.6 This will also dispel the notion that the real intent of the government is to stall the appointment of an honest judge, who quashed the President’s Rule in Uttarakhand.
No system of appointment of judges anywhere in the world is free from criticism. However, the system of inviting applications, interviewing the candidates and appointing them on merit and encouraging diversity, as is being done in the United Kingdom through an institutional mechanism, appears to be better suited to Indian conditions.
The collegium system of appointment of judges and the inevitable consequence of a turf war between it and the Centre have unfortunately resulted in the dilution of both merit and diversity in the apex court. As the collegium prepares to reconsider its recommendation on Justice K.M. Joseph, the likely impact of its decision on both the independence and the diversity of the judiciary will be closely watched.
Prashant Padmanabhan is an Advocate-on-Record of the Supreme Court.
Notes:
1. http://www.newworldencyclopedia.org/entry/
Oliver_Wendell_Holmes,_Jr.
2. Sita Ram vs State of U.P. (1979) 3 SCC 656 https://indiankanoon.org/doc/1594547/
3. http://www.supremecourtofindia.nic.in/
chief-justice-judges
4. http://www.supremecourtofindia.nic.in/
chief-justice-judges
5. Justice R.K. Agrawal will retire on May 4, Justice Jasti Chelameswar on June 22, and Justice A.K.
Goel on July 6. Chief Justice Dipak Misra will retire on October 2, Justice Kurian Joseph on November 29 and Justice Madan Lokur on December 30.
6. Please see Second Judges’ case (1993) 4 SCC 441 at page 710 summary of the conclusions (5)
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