ABHINAV CHANDRACHUD recently graduated from the Stanford Law School with a doctoral degree. He is the author of Due Process of Law (EBC, 2011) and is writing a history of the Bombay High Court during the British Raj. His latest book, The Informal Constitution: Unwritten Criteria in Selecting Judges for the Supreme Court of India (OUP, 2014), is based on his interviews with 29 of the 96 judges who were appointed to the Supreme Court between 1989 and 2009. In this interview, he talks about his latest book and the controversy over the non-appointment of senior advocate Gopal Subramanium to the Supreme Court. Excerpts:
Your book “Informal Constitution” is timely. Did you anticipate that the non-appointment of a nominee of the collegium to the judgeship of the Supreme Court would become controversial?
I couldn’t have anticipated this exact controversy. In fact, like many others, I was pleasantly surprised when the news broke out about the proposed appointment of Rohinton Nariman and Gopal Subramanium to the Supreme Court Bench. Since the late 1990s, Supreme Court judges in India have overwhelmingly come from the ranks of High Court Chief Justices. Though this is a by-product of the collegium system, it is also clear that top-ranking Supreme Court lawyers have seldom wanted to become Supreme Court judges in independent India. The salary of a Supreme Court judge is low. Though there are perks to the office, a Supreme Court judge draws the same salary as a 23-year-old, first-year lawyer working at one of India’s top corporate law firms. Further, the average tenure of a Supreme Court judge in India is very short. This is a result of the retirement age of 65 and the informal norm that a person has to be at least 55 years old in order to be eligible to be appointed to the court [most Supreme Court judges in India are appointed at a much older age].
In fact, in their draft paper on the “grand advocates” of India, the scholars Marc Galanter and Nick Robinson have suggested something quite interesting: they argue that often, members of the Supreme Court Bar think of themselves as a more intrinsic part of the Supreme Court of India than even the Supreme Court’s judges. If you think about it, this isn’t all that far-fetched. Indian Supreme Court judges have short five- or seven-year terms on average, while most top-ranking Supreme Court lawyers are around in the court for several decades. It is, therefore, both surprising and creditable that top-ranking, high-paid lawyers like Nariman and Gopal Subramanium agreed to forgo their status as “grand advocates” of the Supreme Court, that they agreed to get paid a low salary for the next few years, and to retire into relative oblivion at age 65.
That having been said, it is hardly surprising that a judicial appointment in India has sparked controversy. Even in the late 19th century, judicial appointments to the provincial High Courts in India sometimes ignited controversy in the press. For example, in 1895, when Arthur Strachey (scion of the influential Strachey family) was appointed to the Bombay High Court over the head of the more deserving Muslim lawyer Badruddin Tyabji, an Indian-owned newspaper, Indu Prakash , called this “a shameless act of nepotism” on the part of the British colonial government. Over the past few years, controversies have often erupted (sometimes unfairly) over the appointment or non-appointment of judges, such as A.P. Shah, Bhaskar Bhattacharya, N.V. Ramanna, or even P.D. Dinakaran. While writing the book, I definitely knew that I was writing about a subject that would always remain interesting and contentious in India.
Going by the manner in which the government tried to stall the appointment of Gopal Subramanium, do you think the informal criteria, henceforth, will include absence of deliberate leaks and the misuse of intelligence agencies against the recommended names apart from the three you have identified?
The sense one gets is that the system in place for carrying out background checks on candidates who are proposed to be appointed judges is inadequate. In a speech delivered in 2010, a former member of the Supreme Court collegium, Justice Ruma Pal, said that the collegium system was flawed, among other reasons, because even a rumour or “chance remark” could “damn a judge’s prospects” for elevation to the Supreme Court. One of the Supreme Court judges I interviewed for my book—a judge who served in the court in the 2000s—had an interesting anecdote to tell me about the background check conducted by the government on him before he was elevated. One day, a man showed up at his doorstep, asked him if he in fact was Justice X, and then left. That was it. Consider also the case of Soumitra Sen of the Calcutta High Court. In 2011, Sen was nearly impeached by Parliament over some alleged misconduct he had committed before ever being appointed a judge. Sen eventually resigned before the impeachment proceedings were concluded. The whole episode could perhaps have been avoided had a more thorough background check been carried out in that case.
At the same time, I entirely agree that the CBI [Central Bureau of Investigation] and the I.B. [Intelligence Bureau] should not be misused in the garb of carrying out a background check on a potential judge. It is also true that India’s judges face a great deal of unfair harassment today—a host of wild, ludicrously baseless allegations are often levelled against them, and in the anti-corruption environment in which we live today, it is often unfairly assumed that every person who holds a public office is corrupt, which is absolutely untrue. The Gopal Subramanium episode is, therefore, perhaps representative of the ease with which allegations can be levelled against anyone who holds or has held a public office in India.
Looking back, do you think the Second Judges case, although it had its genesis at the time of weak Central governments, actually could not prevent a strong government from having its way? What lessons do you think it has for the judiciary and the executive.
In my book, I argue that the socio-political context in which the Second and Third Judges cases were decided is meaningful and cannot be ignored in any discussion of those cases. The two decisions which created the collegium model of appointing judges were handed down after prolonged tussles between the executive and the judiciary in the 1970s and the 1980s. In the 1970s, Justices [Manilal] Shelat, [K.S.] Hegde, [A.N.] Grover, and [Hans Raj] Khanna were superseded because they did not subscribe to the populist ideologies of the Indira Gandhi regime and repeatedly decided cases against the government. A “court-packing” process was also allegedly under way in the 1970s to appoint “committed” judges to the Bench.
The government’s attempts to control the composition of the judiciary continued into the 1980s, as the Indira Gandhi government tried to undo the judicial appointments made by the Janata Party government. Then, all of a sudden, starting in 1989, governments which came to power in India commanded weak majorities in Parliament. In the years leading up to the Second Judges case, decided in 1993, there was no cataclysmic war between the executive and the judiciary, there was no Basic Structure case in this era, no habeas corpus case, no Emergency, and after Rajiv Gandhi, no substantial attempt to arm-twist the Chief Justice of India or the federal judiciary. This created the political space for the court to take control of its own composition. At the same time, one cannot lose sight of the fact that the Second Judges case was also decided against the backdrop of the wider anti-corruption movement in India in the 1990s, at a time when the judiciary was suffering, for perhaps the first time, from a “crisis of credibility” as allegations of financial corruption were being levelled against judges, and [Justice] V. Ramaswami was nearly impeached, only a few months before the Second Judges case was decided. The court perhaps wanted to take control of its composition at this time to cleanse its own image. The one lesson I think we can all draw from this is that doctrines do not always provide self-contained answers to legal questions.
The theory of weak governments leading to an assertive judiciary and its natural corollary that strong governments mean weak judiciary does not sound convincing. We associate strong and weak in terms of majority and lack of majorities in the Lok Sabha. If that is so, the concept of judiciary as a counter-majoritarian institution may have no takers. But history suggests that both during Jawaharlal Nehru’s and Indira Gandhi’s time, which saw strong majority governments, the Supreme Court delivered many anti-government judgments without fear or reprisals in terms of constitutional amendments, supersession (except the A.D.M. Jabalpur case during the Emergency), and the like. I find that your book also supports this theory. Can you explain further?
My interpretation of the theory you speak of is that the weak minority or coalition governments of the past decades were unable to make sustained attacks on the independence of the judiciary in the same way governments were able to do in the 1970s and 1980s, and that this helped make the judiciary robustly independent in India in the past few decades.
In order for courts to freely decide cases for or against the government without fear or favour, what matters is not how strong the government is, but how independent the judge is. Various factors go into making a judiciary independent. Independent judges usually have security of tenure and fixed compensation. In other words, the independence of the judiciary requires that judges should not be hired or fired at the government’s pleasure, but that they should hold their offices during “good behaviour”, and that their salaries and compensation should not be reduced during their terms in office.
However, powerful governments in India have often tried to attack the independence of the judiciary. In the 1970s, the Indira Gandhi government tampered with the independence of Supreme Court judges by superseding judges, that is, by not promoting judges who had decided cases against the government to the post of Chief Justice of India. Likewise, in the 1980s, the government was accused of intimidating the judiciary by transferring independent High Court judges to other courts. Many judges continued to decide cases independently despite such devices imposed by the government, often paying the price for their independence, so you are right to say that the independence of the judiciary did not cease to exist even under powerful governments headed by Prime Ministers like Nehru or Indira Gandhi. However, the fear is that a powerful government can attack the independence of the judiciary once again, as we have seen in our past, thereby weakening the courts.
Your book challenges the relevance of each of the informal criteria—age, seniority and diversity—for appointment to the Supreme Court. What would you suggest in their place? And how can the new criteria be applied?
I think that the age and seniority criteria in their present form should be done away with. There are few good reasons to support a system which requires that a person has to be at least 55 to become a Supreme Court judge, or at least 45 to become a High Court judge. Just because you are in your early fifties does not mean that you are immature, unintelligent, or otherwise ill-equipped to sit on the Supreme Court of India. Likewise, seniority is a questionable criterion for many reasons. Though prior judicial experience is a respectable eligibility criterion, there is no good reason why only High Court Chief Justices should be considered eligible for appointment to the Supreme Court merely because they have the highest seniority in their own courts. In place of age and seniority I would suggest the criterion of merit, though I agree that it is very difficult to define what merit means. Diversity is important, but perhaps it should not be limited to regional, religious or caste-based diversity. Judges should also come from a diversity of professional backgrounds and intellectual traditions—transactional lawyers, arbitration lawyers, trial lawyers, or law professors should also be appointed to the court.
In your book, you have taken a conscious decision not to go into the merits of the collegium system of appointments. Would you like to share your thoughts whether it has been a success or failure, in the wake of the non-appointment of Gopal Subramanium?
I don’t think that the Gopal Subramanium episode reflects a failure of the collegium system. If anything, the fact that candidates like Nariman and Gopal Subramanium could have been recommended for appointment to the Supreme Court stands to the credit of the collegium system, though I agree that the collegium model could generally do with some reform. In fact, if Gopal Subramanium had not withdrawn his consent, and if the collegium had reiterated its recommendation, he would probably have been elevated to the Supreme Court.
You are also of the view that geographical diversity in the court may not be that relevant in the days to come. But regional balance will certainly be a relevant consideration, otherwise the court may lose credibility. Your comments.
One of the advantages of having an informal set of eligibility criteria is that the criteria can change according to the felt necessities of the times. There used to be a time when American Presidents used to worry about ensuring some kind of regional/State representation on the United States Supreme Court, but this is no longer so. Likewise, a time may come when preserving a regional balance on the Supreme Court of India may no longer seem necessary. I feel that this might happen if Indian society becomes far more mobile, and if more people relocate more often within India, which will perhaps weaken rigid regional identities and affiliations. One of the judges I interviewed, for example, was born in Assam, spent several years in south India, and practised as a lawyer in Kolkata, and then served as a judge on the Calcutta High Court. Can that judge only be considered as representing the Calcutta High Court on the Supreme Court of India?
Gopal Subramanium says he withdrew his candidature because he did not want to begin his term as judge with the executive declaring its “no confidence” in him from day one. Your views on this issue may be of interest.
Judges often recuse themselves from hearing cases because they worry about litigants’ perceptions about bias. However, in this case, the feeling one gets is that the government’s distrust of Gopal Subramanium did not necessarily come from a place of deep respect for the judiciary and its impartiality. Perhaps Gopal Subramanium ought to have ignored the government’s partisan evaluation of his credentials.
Though I agree that Gopal Subramanium should have waited for the collegium to reiterate his candidature, I also wonder whether he withdrew his name so that he could defend himself against the media reports against him, which he would have been unable to do as a Supreme Court judge. Unlike politicians, judges cannot call press conferences and address the media on any allegations they might be facing. In fact, there are strong norms about how judges should conduct themselves after they are appointed. For example, there seems to be some kind of an informal understanding in India that judges should not have Facebook accounts. Thus, lawyers have been known to delete their Facebook accounts when they get appointed to the Bench. In short, if Gopal Subramanium had been appointed to the Supreme Court Bench, he would not have been able to address the media and defend himself against media speculations.
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