From Bar to Bench

The Supreme Court collegium, going against accepted norms, has recommended the appointment of two practising lawyers of the Bar as judges in the Supreme Court.

The Supreme Court in New Delhi.

IN his short, five-month tenure as the Chief Justice of India, R.M. Lodha has accomplished something that few of his predecessors could. Two towering giants of the Supreme Court Bar in Delhi, Rohinton Nariman and Gopal Subramaniam, are soon going to be elevated as judges of the Supreme Court of India. Among over 210 judges who have been appointed to the Supreme Court thus far, only four were “Bar judges”, that is, lawyers immediately before their elevation. Chief Justice Lodha deserves to be congratulated on appointing judges of a stature and professional background rarely seen in the Supreme Court. Likewise, both Nariman and Subramaniam should be commended for surprisingly cutting short their lucrative careers at the Bar in exchange for a relatively short term on the Bench.

One of the defining features of the Supreme Court of independent India has been that lawyers have seldom been appointed directly to the Bench. This was not the case under the British Raj. In the High Courts of colonial India, only one-third of the seats of the Bench were reserved for members of the lower judiciary, who usually belonged to the Indian Civil Service. The remaining two-thirds of the judges were practising lawyers before their elevation. For example, in 1908, the practising Advocate General of Bombay, Basil Scott, was directly made the Chief Justice of the Bombay High Court. Even the judges of the Federal Court—the precursor to the Supreme Court of India—were drawn equally from the ranks of practising lawyers and sitting High Court judges. For instance, two prominent Indian lawyer-politicians, M.R. Jayakar and Zafrulla Khan, were directly appointed as judges of the Federal Court of India though they had never served as High Court judges.

Colonial-era lawyers agreed to become judges under the British because judges were paid handsomely in British India. In the 19th century, for example, the Chief Justice of the Calcutta High Court drew a salary which was higher than what even most judges in England were getting. Failing British barristers practising at the Bar in England, therefore, found it advantageous to accept a judgeship in an Indian High Court. Likewise, many top Indian lawyers became High Court judges in the colonial period because accepting a judgeship did not involve a huge sacrifice of income. However, in the final decades of the British Raj, when prices began to rise and judicial salaries remained what they had been in the 19th century, successful lawyers started declining High Court judgeships. After India became Independent, judges’ salaries were actually cut down. In fact, though judges’ salaries were statutorily prohibited from being reduced under the British Raj, India’s Constitution still does not formally give judges the guarantee that their salaries will not be reduced.

The result was that in the 1950s, not a single lawyer accepted a judgeship with the Supreme Court of India. Over the years, most of the stalwarts of the Supreme Court and High Court Bars have declined to serve on the Supreme Court Bench—lawyers like Nani Palkhivala, H.M. Seervai, K.K. Venugopal and Iqbal Chagla. Even Rohinton Nariman’s father, Fali S. Nariman, declined an offer to be appointed a judge of the Supreme Court. Who could blame him? The salary of a Supreme Court judge is microscopic in comparison with a successful lawyer’s earnings at the Bar. Today, a Supreme Court judge earns the same salary as a 23-year-old, first-year lawyer at a corporate law firm in India. Though there are other perks to being a Supreme Court judge, the age of retirement is only 65. When this retirement age was fixed in the 1930s, a 65-year-old person was considered very old, and it was expected that serving on the court up to that age was like having life tenure. Many early Supreme Court judges (including India’s first Chief Justice, Harilal Kania) died before reaching the retirement age. This is no longer true today. Prominent lawyers like Ram Jethmalani and Soli Sorabjee have practised at the Supreme Court Bar decades after reaching the age of 65, whereas a Supreme Court judge has to wallow in the relative oblivion of retirement after that age.

Though both Rohinton Nariman and Gopal Subramaniam will serve as Supreme Court judges for longer than the average tenure on the Bench, both will have to retire at 65, after which they cannot resume their lucrative careers at the Supreme Court Bar, careers which would have brought them high earnings well into their seventies and eighties. Rohinton Nariman, who turns 58 this August, deserves extra credit for the remarkable fact that he accepted a judgeship despite knowing fully well that he will never become the Chief Justice of India, because of the seniority convention (according to which the most senior judge of the Supreme Court replaces the outgoing Chief Justice). It is believed that Gopal Subramaniam is younger than the youngest Supreme Court judge at the moment, N.V. Ramanna. If true, this will mean that Subramaniam will become Chief Justice of India when Ramanna retires in 2022. He will be only the second Bar judge to ever hold that post after S.M. Sikri, who retired in 1973.

This is very surprising because after the Kuldip Singh-A.M. Ahmadi episode in the Supreme Court in the 1990s, one would not have expected a Bar judge like Gopal Subramaniam to become the Chief Justice of India. In December 1988, five judges, including Kuldip Singh and A.M. Ahmadi, were appointed to the Supreme Court on the same day. Kuldip Singh was practising at the Supreme Court Bar in Delhi as Additional Solicitor General of India, while Ahmadi was a High Court judge in Gujarat. It had often been the norm in the High Courts that when a Bar judge and a lower court judge were appointed to the court on the same day, the Bar judge got seniority. Thus, Kuldip Singh expected that he would be considered senior to Ahmadi. He was two months older than Ahmadi, and if he were given seniority over Ahmadi, he would have been the Chief Justice of India for over two years, while Ahmadi would have been the Chief Justice for only a few months.

However, this did not happen, and Ahmadi was given seniority over Kuldip Singh, probably because it was considered unfair that a lawyer should steal a march over a judge who had toiled away for several years in a High Court. Thus, when Chief Justice M.N. Venkatachaliah retired in 1994, Ahmadi became the Chief Justice of India. Kuldip Singh was disappointed, and he even subtly referred to this episode in his judgment in the famous Second Judges case ( Supreme Court Advocates on Record Association vs Union of India, AIR 1994 SC 268 ). One would have expected this incident to have served as a precedent for ensuring that Bar judges do not become Chief Justices of India, so as not to frustrate the aspirations of High Court judges.

Both Nariman and Gopal Subramaniam have served as Solicitors General of India, which is a prominent government lawyer position. If one analyses the background of the four Bar judges previously appointed to the Supreme Court, one will see that most of them were important government lawyers. Appointed to the court in the 1960s, S.M. Sikri was Advocate General in Punjab. Next, S.C. Roy, who briefly served with the court in 1971, was senior counsel for the Union government at the Calcutta Bar. Kuldip Singh, appointed in the 1980s, was Advocate General in Punjab and later Additional Solicitor General of India in Delhi. Finally, Santosh Hegde, who served with the court between 1999 and 2005, was Solicitor General of India. Thus, most of the lawyers directly appointed to the Supreme Court so far, perhaps only with the exception of Roy, were recognised as distinguished lawyers by the state and they had all demonstrated a willingness to sacrifice a high income in private practice for a government position. However, it is arguably true that the two newcomers command a highly lucrative practice at the Supreme Court Bar today, of a kind which the previous Bar judges might not have had.

Much is being made of the fact that this is the first time in India’s history that two lawyers are being appointed to the Supreme Court at the same time. Though true, this is unremarkable. The first Bar judge, S.M. Sikri, was appointed to the court in 1964, but at that time, the Supreme Court had only 14 judges (including the Chief Justice). Today, the court’s size has more than doubled—the court has a sanctioned strength of 31 judges (including the Chief Justice). Thus, appointing two Bar judges to the Supreme Court today is akin to appointing one Bar judge to the court in the 1960s.

Room for reform

Though the new appointments constitute a giant leap in the right direction, there is still much room for reform in Indian judicial appointments. It might be a healthy convention to earmark henceforth at least two seats in the Supreme Court for Bar judges who might come not from the Delhi Bar alone, but from other distinguished High Court Bars in India as well. The Indian Constitution prescribes three categories of individuals who are eligible to be appointed to the Supreme Court—lawyers, High Court judges, and law professors. Yet, despite the fact that India has produced many eminent law professors like Upendra Baxi and P.K. Tripathi, none has been appointed to the Supreme Court so far, perhaps because legal scholarship is not considered as valuable as practical experience in India’s legal profession. The seniority convention, too, needs to be seriously reconsidered. After all, the Supreme Court has over 60,000 cases pending before it, and if India is to tackle its backlog crisis, the Chief Justice of India should have a relatively stable term of at least five years in office, which is the tenure for the President of India. The informal norm that a person has to be at least 55 years old in order to be considered eligible to be appointed to the Supreme Court needs to be reconsidered as well.

The Narendra Modi government has no choice but to accept the new appointments. As a result of a series of cases decided by the Supreme Court of India known as “Judges cases”, the collegium’s recommendation is binding on the government. However, these appointments will not be seen by the new Modi government as midnight UPA-II appointments, because the initiative for appointing judges comes from the Supreme Court collegium, not the government. Further, though both Nariman and Subramaniam were Solicitors General under the previous Congress regime, both resigned under unpleasant circumstances and neither is likely to be branded a pro-Congress partisan.

It will be interesting to see how the Modi government approaches the judicial appointments process. In the 1970s and 1980s, the Indira Gandhi and Rajiv Gandhi governments, with their strong majorities in Parliament, attempted to tamper with the composition of the judiciary. Over the past two decades, India has not seen a similar attempt by a government to arm-twist the judiciary, because only weak minority or coalition governments have been able to come to power at the Centre, until now. India’s judiciary is known today for its activism in trying to make the government more accountable and transparent—an activism which has flourished under weak Central governments. One wonders whether the new government, with its strong mandate, will attempt to cut back on the activism of India’s judiciary by influencing judicial appointments. A process is at present in motion to replace the “collegium” model of appointing judges with a new “Judicial Appointments Commission”. The future of the Supreme Court Bench might therefore rest on who gets to serve on the Judicial Appointments Commission.

Abhinav Chandrachud is the author of The Informal Constitution: Unwritten Criteria in Selecting Judges for the Supreme Court of India.