The trinity of fairness, transparency and accountability form the bedrock of an effective and independent judicial system. Likewise, legal reasoning, justifiability and conforming to judicial ethics remain the hallmarks of judicial decisions, judicial appointments as well as judicial behaviour. Constitutionally speaking, this hexagon of judicial character shall remain entrenched in every decision concerning appointments of judges at all levels of judicial hierarchy.
There cannot be different sets of principles applicable for appointment of judges to the Supreme Court and appointment of judges to the High Courts. This entails the appointment of the Chief Justice of India as well as the Chief Justices of High Courts. However, the record of judicial appointments in India is full of paradoxes and application of differential norms. This paradox is vividly reflected in the fact that the factors that created the ground for the Supreme Court to take away the power of appointing judges from the executive in the Second Judges’ Transfer Case (1993) are now being practised by the Supreme Court Collegium itself.
After the landmark decision of Kesavananda Bharati vs. State of Kerala in 1973, three seniormost judges (Justices J M Shelat, A N Grover and K S Hegde) were superseded and the fourth in seniority, Justice A N Ray, was appointed as the CJI. The second casualty that astounded the legal circle occurred when Justice H R Khanna was passed over for Justice M H Beg, following the former’s strong dissenting opinion questioning executive power. These were treated as dark events in the history of the SC. But surprisingly, we don’t get astonished by the routine supersession of judges by the Collegium and it has become the new normal.
Justice Ranjan Gogoi was elevated to the Supreme Court before Justices Madan B Lokur, Kurian Joseph, A K Sikri, S A Bobde, R K Agrawal, N V Ramana, D Y Chandrachud and a few others who were all senior to him. Justices Deepak Gupta and Navin Sinha, both appointed as SC judges on 2 February 2017, have approximately over 30 HC judges senior to them as of now. At the time of their appointment, they had around 40 HC judges senior to them. The recent appointments of Justices K M Joseph, Hemant Gupta,R Subhash Reddy, M R Shah, Ajay Rastogi and Sanjiv Khanna who stood at Sl. Nos. 42, 4, 5, 17, 25 and 33 respectively in the all-India combined seniority of HC judges once again established that whether it is the appointment of a Chief Justice of a HC or of judges to the SC, seniority has been given little weight and the choice has always been made in the name of quality and his worth on the Bench. However, the Collegium never assigned any credible parameters for deciding that a judge is more worthy of being elevated to the apex court than others, without even being a Chief Justice of any HC, superseding many of his senior brother and sister judges.
This principle is purely based on convenience. If increasingly greater reliance is placed on the qualitative worthiness of a judge as opposed to a more objective criteria for seniority, one may argue why the same is not followed in the appointment of the CJI. In fact, even in the case of qualitative assessment of a judge, a criterion that is more objective and transparent could be developed. These may include the number of majority judgments authored by a judge, number of dissents, number of concurring opinions, number of cases disposed of, number of significant judgments, etc. Such criteria can be further sharpened by defining what would constitute a landmark judgment, and probably also taking into account the number of working days devoted by a judge in office and so on.
This would bring a lot more credibility to the merit and qualitative worthiness argument of the Collegium. Else, the merit-based argument would remain a shallow drum being played often by the Collegium when they prefer to favour one judge over another disregarding the well-established principle of seniority. This sacred convention of seniority, conveniently confined to the appointment of the Chief Justice of India, results in a rapid succession of CJIs with short stints of one or two months. And so no CJI can hope to bring any substantial reform in the judiciary.
The Supreme Court recently dismissed a review petition challenging the striking down of a Constitutional Amendment that sought to replace the Collegium system in the appointment of top judges on grounds of delay and lack of merit. But if the existing system continues, then the day is not far when the government once again will make an attempt to bring the National Judicial Appointments Commission which would be in accordance with the spirit of the Constitution.
Perhaps this time it would get more support from the judicial fraternity itself because the Collegium would have left most senior judges across the country disgruntled. In fact tacit support may also come from within the sitting judges who may too aspire to become the CJI claiming their merit over and above the not-so-laudable principle of seniority, which is more of a tie-breaker than a reasoned rule for appointing a judge to the office of the Chief Justice of India.
Yogesh Pratap Singh
Registrar (I/C), National Law University Odisha
Email: registrar@nluo.ac.in
Nachiketa Mittal
Assistant Professor, National Law University Odisha
Email: mittal.nachiketa@gmail.com