Book Excerpt: ‘[In]Complete Justice? The Supreme Court at 75: Critical Reflections’: Judicial appointments, and disappointment

In discussions around judicial appointments, most attention is paid to the way in which judges are appointed to the SCI (Supreme Court of India). Relatively less attention is devoted to studying how judges are appointed to the HCs. Arguably, the HC Collegium is an important link in the entire chain of judicial appointments in India because it is the originator of the names of those who may be part of the pool for ultimate elevation to the SCI. It is effectively a stepping stone for SCI judges, although, of course, there are exceptions in the case of direct appointments to the SCI.

Most judges of the SCI, barring those who are direct appointees, come from one HC or the other. Their association with their parent HCs continues into their tenure as SCI judges as well. When the SCI Collegium discusses prospective candidates for appointment from specific HCs, it will invariably consult judges originally from that HC, if there are any, sitting in the SCI, who are considered ‘consultee judges’. Sometimes, members of the Collegium and the ‘consultee judges’ from the specific HCs concerned become unofficial power centres, directly interfering in the selection of the HC judges.

Invariably, an HC is likely to have a CJ from another state who might aspire to be elevated to the SCI. Thus, the HC CJ could be under pressure to quietly acquiesce to the choice of the consultee judge and sometimes even a member of the SCI Collegium. This ends up perpetuating a culture of subservience and sycophancy in the judiciary.

The Collegium system has altered — unfortunately, to the detriment of the HCs — the relationships between judges of the HCs and the SCI. The prestige that was once associated with being a HC judge has now lost its sheen. It is a cause for concern that HC judges appear to be over eager to please a consultee judge or members of the SCI Collegium, believing that it will support their future prospects.

Some, like Ruma Pal J, have long maintained that the process by which a judge is appointed to a superior court is ‘one of the best kept secrets in the country’. She adverts to this ‘excessive degree of secrecy’, resulting in there being usually no information or discussion on the abilities or suitability of potential candidates. Consequently, appointments rest on subjective assessments based on anecdotal revelations, personal friendships, obligatory relationships and even trade-offs between the members of the Collegium or between the Collegium and the executive. Having any ‘selection criteria’ for identifying and appointing judges has no meaning in this entire process.

In his opinion that formed part of the SCI’s decision on the contempt proceedings against CS Karnan J, Jasti Chelameswar J expressed concern over how an individual with such a personality could be appointed as an HC judge. He wrote that the case highlighted ‘the need to revisit the process of selection and appointment of judges to the constitutional courts, for that matter any member of the judiciary at all levels’. He acknowledged that ‘there [was] a failure to make an assessment of the personality of [Karnan J] at the time of recommending his name for elevation,’ and said that there is an ‘unquestionable’ need for a suitable and appropriate mechanism to assess the personality of a candidate under consideration for appointment to a constitutional court. We may recall that Chelameswar J dissented in the Fourth Judges’ case and held the 99th Amendment and the NJAC Act to be constitutionally valid.

The original intent of the members of the Constituent Assembly to have impartial and apolitical appointment processes and judges appears to have been thrown to the wind because of the way in which the Collegium system has evolved.

— The writer served as Chief Justice of Madras High Court and Delhi High Court. Excerpted from ‘[In]Complete Justice?: The Supreme Court at 75’ with permission from Juggernaut