Collective picture

Interesting information about the work and backgrounds of judges who served in the Supreme Court in the first four decades of the Republic.

IT will not be amiss to suggest that foreign scholars easily obtain from the Supreme Court of India (SCI) and its judges information that Indians may not get even if they file applications under the Right to Information Act (RTI). In a recent article, the well-known legal commentator and author Rajeev Dhavan expressed disappointment that while Supreme Court judges provided detailed information about their work to foreign scholars they denied the same to Indian researchers. He, however, added that the foreign scholars shared with him such information in exchange for his books.

Therefore, when George H. Gadbois, the author of the book under review, asks why so little attention has been paid to the judges of the SCI, readers are not perplexed. The absence of scholarly interest within the Indian academic community in the socio-economic background of judges does not mean that the Indian scholars do not give it much importance, as Gadbois assumes. On the contrary, it underscores the reluctance of the Supreme Court and its judges, past and present, to facilitate close scrutiny of their affairs by Indian observers. An up-close look would mean making the process of appointing judges more transparent and bringing to the public domain extraneous factors that influence the selection of judges.

Gadbois is Professor Emeritus of Political Science in the University of Kentucky, United States. The Indian judges who spoke to him to help him write the book appear to have got away without risking intense scrutiny of their conduct, on and off the Bench. Several aspects of The Judges of the Supreme Court of India make one wonder why Gadbois refrained from revealing everything he might have learnt, especially facts that might have proved to be pejorative. While some infer that he did so as a mark of gratitude to the court and the judges for facilitating his work, he might have decided to reveal only what was relevant to the book.

A few instances will suffice to support either of these two perceptions:

*The SCI maintains files containing some biographical information about each judge, provided by the judge. Though this information is not available to the public, Gadbois was given access to it by the court.

*Gadbois interviewed 64 of the 93 judges who served on the court from 1950 to mid-1989. To obtain information about the judges, who were no more, Gadbois met or corresponded with their widows, children or other relatives and with close friends and associates. Each request for interview was granted. The interviews ranged from 45 minutes to 10 hours spread over several days. Most of the judges had things other than biographical matters to talk about, with the result that many of the interviews turned out to be conversations on a wide range of subjects.

*There were 18 Chief Justices of India (CJIs) during the first four decades of the Indian Republic. Seven had died before Gadbois' study commenced. From B.P. Sinha (1959-64) through R.S. Pathak (1986-89), he met all the CJIs except P.B. Gajendragadkar. All of them were willing to talk about those who were appointed during their term, the selection criteria employed, and their own and the executive's roles in the selection. Some fascinating stories about why and by whom some judges were chosen were revealed in the conversations. The author includes some of these fascinating stories in the book but refrains from making a comparison between the earlier method of choosing judges and the present collegium method. Gadbois suggests that the method of selection hardly influenced the quality of the judges chosen as many of them were excellent.

*The Chief Justices whom Gadbois interviewed were unanimous that they were responsible for every appointment during their tenures and agreed that for better or worse, those appointees were part of their legacies. Gadbois asked the associate judges who they thought initiated their appointments the CJI or the executive. There were only a few instances where their accounts and that of the Chief Justices did not tally. Associate judges were often reluctant to acknowledge that their name was advanced by the executive, for a judge chosen by the executive was considered less deserving than one whose name was advanced by the CJI.

At the end of the book, the reader is left without any list of instances when a judge was chosen by the executive or the CJI, or by a mutual agreement between them. Such a list would have proved very useful.

*When a judge wanted something to remain off-the-record, the request was honoured. This meant that important material could not be used in the book. The judges trusted Gadbois, and the author has not knowingly betrayed that trust. Gadbois has deemed some on-the-record matters inappropriate to include in the book. He justifies his decision not to identify the judge whom a CJI described as the low point of SCI appointments. Readers deserve an explanation as to why Gadbois decided against revealing the name of the CJI and the judge, if the CJI himself had no qualms about being transparent.

*When individuals are named, it gives rise to a delicate issue, whether or not to include some material available. Examples are the identities of nominees not accepted by the CJI or the executive. Delicate also is the task of identifying the nearly two dozen senior advocates and high court judges who declined invitations to become SCI judges and the real or apparent reasons for that. Gadbois asks: Should the patrons who lubricated the paths of some who reached the SCI be named? He claims that his book is not intended to be an expose. The author has endeavoured to use good taste, but perhaps it was wiser to leave some of the contents unwritten. The reader is left wondering whether it is a limitation or a virtue.

*Gadbois admits that only rarely do decisions of the SCI find a place in the book. Almost equally rare is any mention of the purported social and economic philosophy of a judge. Exceptions are when the judge carried his views as a badge of pride and was well known for these views. Gadbois has rarely made an evaluative observation about the quality or importance or contributions of a judge. He says: Some were giants who will be remembered a century from now. Others are blips on the radar screen, sidebars to the history of the SCI, likely to be recalled only by the closest of court watchers. The reader is bound to ask whether facts regarding the socio-economic background of a judge could be divorced from the socio-economic philosophy underlying his/her judgments.

*The executive, after largely conceding to the CJI the power to select the judges during the first 20 years, sought after 1970 to retrieve some of that power. Thereafter, the selection power was shared between the CJI and the executive and the selection criteria underwent some changes. Gadbois admits that he has no illusions that he has correctly answered questions about why and how each judge was selected. As his is the first attempt to connect the dots between a potential nominee and his ultimate appointment, much more remains to be done, he has said. Therefore, the reader may not get ready answers to questions such as what changes the selection criteria underwent after 1970 and how much selection power and in how many cases the CJIs ceded to the executive between 1970 and 1989, as claimed by Gadbois in the first chapter, India's Judicial Elite.

A reader can make an intelligent guess on the basis of a few revelations in the book. The author's discussion of the Hidayatullah court [1968-70] is of considerable interest. Gadbois says that M. Hidayatullah was the last of the strong CJIs. He initiated three appointments during his tenure and refused to accept those pressed upon him by the government. The author adds: In terms of religion, it is noteworthy that Hidayatullah, the nation's first Muslim CJI and the only Muslim on the SCI, did not recommend a Muslim replacement, leaving the SCI without Muslim representation. But Hidayatullah did not consider himself as the occupant of the SCI's Muslim seat. He felt strongly that he was appointed because of his merits, not because he was a Muslim.

As the Sikri court [1971-73] began, there was a reversal of roles with regard to the appointment of judges. Justice S.M. Sikri became CJI on January 22, 1971. The author says: The executive asserted the powers clearly bestowed upon it by the Constitution and initiated the names of those it wanted on the SCI. The most compelling factor in most of these appointments was having patrons who were close to the prime minister. So, this was not court-packing in the conventional sense. Adherence to the seniority principle in the appointment of the CJI has long been considered the cornerstone of the independent judiciary. The government departed from this principle in 1973 when it appointed Justice A.N. Ray superseding three judges senior to him. This led to a hue and cry. Earlier too, senior judges of the Supreme Court had threatened mass resignation when they suspected the government's intention to supersede senior judges while appointing the CJI. The 1973 supersession was justified by the government on the basis of the Kumaramangalam doctrine (named after Mohan Kumaramangalam, then Minister of Steel and Mines). Gadbois has done well in reproducing from Kumaramangalam's speech in Parliament. In brief, the doctrine emphasised that in the appointment of the CJI the government was entitled to consider the philosophy of a judge and see whether he was forward-looking.

Ray's appointment alienated him from many of his friends. He retired from the Bench in 1977 without the customary farewell party. Curiously, even his death in December last year went unnoticed by the media. Gadbois' account shows that Law Minister H.R. Gokhale had offered the post of CJI to Ray, giving him just two hours to decide, the implication being that he too would be superseded if he declined to accept the offer.

As Gadbois reveals, if the government's main goal was to reverse the Supreme Court's judgment in the Keshavananda Bharati case laying down that Parliament cannot amend the basic structure of the Constitution, and expected Ray to do it, it failed. The author says that Ray had been subjected to a great deal of criticism but he chose not to respond to it or tell his side of the story.

Part II of the book, Collective Portrait, is of utmost interest, especially in the context of the controversy over uncle judges. Gadbois has found that 40 per cent of the judges during the period were the sons of lawyers or judges. Seventy-seven of the 93 judges were Hindus. Of them, Brahmins, who comprised one-nineteenth of the nation's population, held 33 of the judgeships. As 40 years of the Indian judiciary drew to a close, a major change in the caste composition of the court began, with people belonging to the Scheduled Castes/Scheduled Tribes/Other Backward Classes making it to the high judicial office. Although Gadbois is convinced that caste was a factor in the latter appointments, he does not find convincing evidence to suggest that Brahmins were preferred earlier because of the caste factor.

Gadbois refers to the Supreme Court judgment in the 1981 S.P. Gupta case [First Judges case] but does not throw sufficient light on whether it helped improve the composition of the Supreme Court by ceding primacy to the executive vis-a-vis the CJI in the matter of appointments. He credits the Chandrachud court [1978-85] with having ushered in regional diversity. Fourteen of the judges appointed during this period came from 13 States. Some of them hailed from newer High Courts and smaller States and represented religious minorities. One of them was the first Scheduled Caste Judge [A. Varadarajan]. It is not clear whether Gadbois supports the view that the credit for this goes to the S.P. Gupta judgment.

Gadbois has found that until 1970, 69 per cent of the judges came from the wealthy classes. This figure came down to 62 per cent in 1989.

In the last chapter, The Archetypal Judge, Gadbois shares some reflections of the period of his study. Judges appointed during the first 20 years were more likely to have had substantial contact with a westernised lifestyle and Western values. The second generation judges were more Indian, and this was increasingly reflected in the outlooks they brought to New Delhi and in the decisions they handed down from the Bench. Background differences notwithstanding, all brought to the SCI a reputation for integrity and rectitude and left with that reputation intact. Someone who studies the Indian Supreme Court in the 1990s and beyond would have a different view.

Gadbois relied almost entirely upon what the CJIs and associate judges told him. He believed that there was little reason to question the truthfulness of almost everything he was told. But he did suspect that some were less active in the struggle for Independence than they claimed, some played less pioneering roles during the early years of the legal aid movements than they reported, and that one, perhaps two, of the CJIs might have exaggerated their role in the selection of judges appointed during their stewardships. Again, Gadbois refrains from naming those CJIs.

There is little doubt that biographical information about individual judges who served the Supreme Court is immensely useful, especially when such information is put together in a single volume. It is easily accessible to the reader. But readers are sure to consider the book to be much more than a Who's Who of Indian Supreme Court judges. Scholars cite Gadbois' 1970 article in Economic and Political Weekly wherein he attempted an empirical study of Indian judicial behaviour in terms of Supreme Court judgments. Judges of the Supreme Court is sure to be cited by scholars in view of its huge value as a seminal reference work. Perhaps the reader could have benefited more had Gadbois been able to complete the book earlier than he did, and had he managed to overcome some of its self-confessed limitations.