Mohan Gopal

| @mohangopal | May 31,2018

Although we are still in that very delicate stage “’tween cup and lip”, the “in principle” decision of the May 11, 2018 Collegium to reiterate their January 10, 2018 K M Joseph recommendation is welcome. It was only to be expected that the Collegium’s “Questioning Quartet” would reiterate their earlier view. The anxiety was whether the exceptionally erudite Chief Justice would remember what Confucius described in his Analects as one of the nine states of mind of the “noble-minded”: “for words, trustworthy”. In the event, he did — much to our relief.

 

The “tea leaves”, in the other decision of the May 11 Collegium are, however, far more interesting. This other decision was that the “said reiteration should also be accompanied by the recommendation of the names of Chief Justices of High Courts for elevation as Judges of the Supreme Court”.

 

On closer analysis, this decision tells us that the 25-year reign of vintage judicial primacy has ended. Established in the 1993 Second Judges’ case (Judges II), at the heart of vintage judicial primacy is the transfer of ultimate decision-making power in the appointment of Supreme Court and High Court judges from the Executive to a collegium of three or five (as the case may be) Supreme Court judges (including the Chief Justice); and a radical reduction in the scope and content of the Executive’s contribution in the appointments process.

 

Six crucial changes to the ‘Vintage Judicial Primacy’ Model

 

In the K M Joseph case, the Executive has so far made six crucial changes to the role of the Executive, and to the scope and content of the permissible contribution of the Executive to the appointment process. These changes are potentially fatal to the vintage judicial primacy model.

 

First, the Executive has decisively removed the prohibition against unilateral segregation. Whatever the practice may have been in the past, when Gopal Subramanium’s name was unilaterally “segregated” out by the Government in 2014, a clear view was communicated by the Chief Justice of India to the Government of India in July, 2014, based on the law laid down by the Second and Third Judges cases (Judges II and III):

 

“I don’t approve of segregation of proposal without my knowledge and concurrence…In future, such a procedure of unilateral segregation should not be adopted by the Executive.”

 

This July 2014 communication has not been publicly countermanded by the Collegium and so we may presume it still stands. Yet, Mr Joseph’s name was unilaterally segregated by the Executive without the knowledge or concurrence of the Collegium. This crucial change will allow the Executive, at the very minimum, to tweak inter-se seniority of judges in the Supreme Court (as has happened with Mr Joseph) and, at worst, to block appointments (as happened when Gopal Subramanium was prompted by the segregation to withdraw his name). The Collegium appears to have quietly accepted this unilateral revision of the appointment system.

 

Second, the Executive has created for itself a new right to ask for additional names to be “aggregated” to a recommendation submitted to it. This is in direct violation of Judges-II and III, under which only the Collegium may propose names. This is precisely the kind of mischief that Judges II and III had tried to forestall by narrowing the role of the Executive in selection and appointment of judges.

 

Third, the Executive has read down the recommendation of the Collegium. The Second and Third Judges cases (Judges II and III) clearly require that the “President is expected to make the appointment [of Supreme Court and High Court judges] in accordance with the final opinion of the Chief Justice of India”. The January 10, 2018 Collegium recommendation had asked that Mr K M Joseph and Ms Indu Malhotra be appointed to the Supreme Court “in that order”. In other words, there is no Collegium recommendation to date that Ms Indu Malhotra may be appointed to the Supreme Court ahead of Mr Jospeh or alone. Instead, the Executive “read down” the recommendation without any reference to the Collegium. In this connection, the Chief Justice accepted the “reading down” of the recommendation and swearing in Ms Malhotra without a Collegium meeting, although Judges II and III are very clear that the Chief Justice cannot substitute the Collegium in this manner.

 

Fourth, strict limits set on the scope and content of the Executive’s contributions to the selection process have been removed. Judges II clearly lays down the lakshman rekha for the role of the Executive in the appointment of judges: “There may however, be some personal trait of an individual lawyer or Judge, which may be better known to the Executive and may be unknown to the Chief Justice of India and the Chief Justice of the High Court, and which may be relevant for assessing his potentiality to become a good Judge. It is for this reason, that the executive is also one of the consultees in the process of appointment. The object of selecting the best men to constitute the superior judiciary is achieved by requiring consultation with not only the judiciary but also the executive to ensure that every relevant particular about the candidate is known and duly weighed as a result of effective consultation between all the consultees, before the appointment is made.” That has been the limit set for the contribution of the Executive.

 

In addition, Judges II and III make it clear that the appointment process is only about selecting individuals for appointment to the Supreme Court and High Courts. What this means is that the appointments process is not a forum for the Executive to raise policy concerns such as representation of High Courts or seniority. Yes, the concerns raised in the Union Law Minister’s letter (Mr Ravi Shankar Prasad) are certainly important. However, they ought to be taken up as part of routine inter-branch dialogue — for example, during the annual conference of chief justices and chief ministers, or on some other such suitable occasion. They have no place in the selection process.

 

Notwithstanding the limit set by Judges II and III on what the Executive may say in the selection process, the April 26, 2018 Government letter says:

 

“…appointment of Shri Justice K M Joseph as a Judge of the Supreme Court at this stage does not appear to be appropriate… [because] in view of the sanctioned judge strength of Kerala High Court of 47 judges, it has received adequate representation in the Supreme Court and as Chief Justices of High Courts. At this stage, elevation of one more judge from Kerala High Court as a Judge of the Supreme Court of India does not appear to be justified as it does not address the legitimate claims of the Chief Justices and Puisne Judges of many other High Courts and forestalls the claim of other senior Chief Justices and Puisne Judges. It is also in our considered view not in accord with the parameters laid down by the Supreme Court itself in the Second and Third Judges cases.”

 

The Government’s letter does not do what it was supposed to do (bring to the attention of the Collegium any personal traits of Mr Joseph that they may not be aware of). It crosses the lakshman rekha, raises inadmissible policy and institutional issues and links the appointment of an individual judge to those policy issues.

 

What was expected from the Collegium on May 4, 2018, when it first met after the Government returned the recommendation for reconsideration, was that a) it rejected the inadmissible portion of the Law Minister’s letter coupling Justice Jospeh’s appointment to broader policy issues; b) noted that the Government had not brought to the attention of the Collegium any “personal trait” of Justice K M Joseph that may be known to the Executive but unknown to the Chief Justice and the Collegium; and c) followed the law laid down in the Second Judges’ cases, which is as follows:

 

“Within the period of six weeks from receipt of the same, the other functionaries must convey their opinion to the Chief Justice of India. In case any such functionary disagrees, it should convey its disagreement within that period to the others. The others, if they change their earlier opinion, must, within a further period of six weeks, so convey it to the Chief Justice of India. The Chief Justice of India would then form his final opinion and convey it to the President within four weeks, for final action to be taken.”

 

Given that over 15 weeks had passed since the original recommendation of the collegium for the appointment of Justice Joseph’s name had been sent to the Government, we would have expected the Chief Justice to directly address the President with a request to proceed with the appointment of Justice Joseph to the Supreme Court.

 

On this basis, the fifth change that the Executive has made to vintage judicial primacy is to disregard and disobey the time schedules and processes stipulated in Judges II and III.

 

The sixth change is that the Executive has introduced into the selection system the doctrine of fair representation of High Courts which was not part of Judges II and III. The agenda of the May 4, 2018 Collegium meeting accepts the concept and the minutes of the May 11, 2018 meeting links the reiteration of Justice Joseph’s recommendation to the aggregation of other names as suggested by the Executive.

 

The concept of “fair representation” of High Courts has no Constitutional or statutory basis. It does not, and cannot, mean representation sensu stricto, as no judge on any court can be anybody’s agent or representative. Also, High Courts have no role, voice or responsibility whatsoever in any aspect of the functioning of the Supreme Court and there should therefore be no question of High Courts as an institution, or even as an informal group of judges having to have representation on the Supreme Court. What the idea can be taken to mean is no more than that every High Court should have judges from it promoted to the Supreme Court in some fair proportion. But why and on what rationale? And what will be the basis to determine the quantum of representation?

 

The April 26, 2018 letter of the Executive uses authorised judge strength as a measure of representation. However, this is not a sound measure because there is no scientific method for calculating judge strength of High Courts. It is traditionally calculated in a very crude manner (using that phrase in a statistical sense) by dividing the number of cases disposed of by the actual judge strength to get the average disposal per judge. The total number of cases pending is then divided by the average per judge disposal to arrive at the required judge strength. There is no weightage of cases — all cases from traffic challans to terrorist cases are given equal weight. There is no attention to efficiency or merit. It inadvertently rewards inefficiency because the lower the average disposal per judge the higher the required judge strength. Until the method of calculating High Court judge strength becomes more scientific, it cannot be a rational basis for deciding the number of judges we should have in the Supreme Court.

 

Nor can the judge to population ratio be the basis for calculating judge strength because there is no linear (cause-effect) relationship between number of people in a state and the number of cases they file in high courts. Case filing is very much a function of social and economic development.

 

Rationally, sanctioned judge strength in High Courts should be based on weighted actual pendency and also build in efficiency parameters. Courts with higher pendency should get more judges than courts with lower pendency. Unfortunately, that is now not the case. The table below shows how there is no rational or consistent co-relation between approved judge strength and pendency. It would be unwise to make an irrational figure such as approved judge strength the basis for deciding seat share on the Supreme Court.

 

NAME OF HIGH COURT PERCENTAGE SHARE OF NATIONAL PENDENCY IN HIGH COURTS (NOT INCLUDING DISTRICT JUDICIARY) NUMBER OF JUDGES IN THE SUPREME COURT AS OF MAY 5, 2018(% of sanctioned strength of 31) Population Share (%)
1. Allahabad 22.73% 1 (3.2%) UP=16.49
2. Punjab and Haryana 7.5% 1 (3.2%) Total: 4.48% (Punjab=2.3%; Haryana=2.09%)

Chandigarh=0.09%)

3. Madras 7.3% 1 (3.2%) (Tamil Nadu=5.96%; Puducherry=0.1%)
4. Andhra Pradesh and Telangana 7.24% 2+1 (9.6%) AP=4.08%; T=2.9%)
5. Madhya Pradesh 7.1% 2 (6.4%) M.P.=6%
6. Karnataka 6.9% 2 (6.4%) Karnataka=6.9%
7. Bombay 6.5% 3+1 (12.8%) Total=9.45% (Maharashtra=9.28%; Goa=0.12%; DD=.0.02%; DNH=0.03%)
8. Rajasthan 6.32% 0 Rajasthan=5.67%
9. Calcutta 5.44% 0 W.Bengal=7.55%

A&N=0.03%

10. Odisha 4.1% 1   (3.2%) Orissa=3.47%
11. Kerala 4.1% 1   (3.2%) Kerala=2.76%

Lakshwadeep=0.01%

12. Patna 3.3% 1   (3.2%) Bihar=8.58%
13. Jharkhand 2.13% 0 Jharkhand= 2.72%
14. Gujarat 2% 0 Gujarat=5%
15.   Delhi 1.6% 3+2 (16%) Delhi=1.38%
16. Jammu & Kashmir 1.47% 0 J&K=1.04%
17. Chhattisgarh 1.28% 0 Chattisgarh=2.11%
18. Uttarakhand 0.79% 0 UK=0.84%
19. Himachal Pradesh 0.7% 1   (3.2%) HP=0.57%
20. Guwahati 0.7% 1   (3.2%) Total=2.94% (Assam=2.58%, Arunachal=0.11%; Mizoram=0.09%; Nagaland=0.16%)
21-24. Four N.E. High Courts combined (Meghalaya, Manipur, Sikkim and Tripura) 0.17% 0 Total= 0.81%; (Meghalaya= 0.24%; Manipur=0.22%; Sikkim=0.05% Tripura=0.30%)

 

The prize for “best represented” High Courts in the Supreme Court (adding the Bar appointees to the High Courts of their original States) go to Delhi with 5 judges and Bombay with 4 judges. Between these two High Courts they have some 29% of the Supreme Court seats although they account for only 8.1% of the total share of national pendency and 10.83% of the population of the country. Add 3 judges from Andhra Pradesh and you have 3 High Courts garnering 38.4% of the seats in the Supreme Court although they have just 15.34% of the national share of pendency.

 

Perhaps one secret factor driving seat share in the Supreme Court may be wealth. Delhi and Bombay have the highest seat share in the Supreme Court. The jurisdictions under Bombay and Delhi High Courts account for some 32.2% of national GDP (Bombay High Court = 28% and Delhi High Court = 4.2%). Even by this standard Kerala can no longer be dismissed as a small state. Kerala ranks 12th in terms of its contribution to GDP (4.1%), immediately behind 11th ranked Delhi).

 

At the same time as the Law Minister says that Kerala High Court is adequately represented, he is silent about Delhi. Kerala’s pendency (1,66, 375) is more than double the pendency of the Delhi High Court (67,082). Yet, Delhi High Court’s judge strength is some 28% higher than Kerala’s and Delhi has today four judges in the Supreme Court (including former Delhi-based advocate Ms Indu Malhotra) and one Chief Justice of a High Court.

 

National seniority

 

The April 26, 2018 letter of the Law Minister mentions the low level of Justice Joseph’s national seniority as a High Court judge as another reason not to appoint him. This is another red herring like fair representation of High Courts. Again, there is no Constitutional or statutory basis for all-India seniority amongst High Court judges. It has never been an overriding or consistently applied principle for appointment to the Supreme Court.

 

Each High Court is a stand-alone Constitutional institution unconnected administratively with each other or with the Supreme Court. Indeed, they are separated by a most important wall in the Constitution — the wall of federalism. High Courts are part of the States under Part VI of the Constitution, whereas the Supreme Court is part of the Union under Part V of the Constitution. Just as there cannot be a seniority list as amongst civil servants of the various States, there cannot be an all-India seniority list of State High Court judges. In trying to build a Constitutionally non-existent bridge between High Courts and the Supreme Court, Justice Verma tried to advance the idea of all-India seniority and a doctrine of “legitimate expectations” of High Court judges to be appointed to the Supreme Court, all else being equal. As discussed later in this article, this was met with a strong dissent from Justice Ahmadi.

 

A simple way to demonstrate the irrelevance of all-India seniority amongst High Court judges is to re-order the list of the 20 sitting Supreme Court judges who came from High Courts in accordance with their inter-se “all-India seniority” in terms of their original appointments to High Courts. The seniority of 15 of 20 current Supreme Court judges (75%) within the Supreme Court is not in line with their “all-India seniority” vis-a-vis their colleagues, as will be seen in the table below. If this standard is to be applied for appointment to the Supreme Court surely it must be followed inside the Court as well. If the seniority within the Supreme Court is revised in accordance with the principle of inter-se all-India seniority of the Court’s current judges, the order of succession in today’s Supreme Court will change drastically. Is the Collegium prepared for that?

 

Current relative “seniority” of Supreme Court judges who were High Court judges by date of appointment to the Supreme Court (in brackets: consequence of moving to all India seniority system) Relative “All India Seniority” amongst Supreme Court judges (in brackets: date of initial appointment as High Court judges)
1.Dipak Misra (no change) 1.Dipak Misra (17.1.96)
2.J. Chelameswar (no change) 2.J. Chelameswar (23.6.97)
3.R.Gogoi (drops to 12) 3.M.Lokur (19.2.99)
4.M.Lokur (moves up to 3) 4.A.K. Sikri (7.7.99)
5.Kurien Joseph (drops to 11) 5.A.M. Sapre (25.10.99, elder to Arun Mishra)
6.A.K. Sikri (moves up to 4) 6.Arun Mishra (25.10.99)
7.S.A. Bobde (no change) 7.S.A. Bobde (29.3.00)
8.N.V. Ramana (drops to 10) 8. A.M. Khanwilkar(29.3.00)
9.Arun Mishra (moves up to 6) 9.D.Y. Chandrachud (29.3.00)
10.A.K. Goel (drops to 15) 10.N.V. Ramana (27.6.00)
11.A.M. Sapre (moves up to 5) 11.Kurien Joseph (12.7.00)
12.R. Bhanumathi (drops to 16) 12.R.Gogoi (28.2.01)
13.A.M. Khanwilkar (moves up to 8) 13.Ashok Bhushan (24.4.01)
14.D.Y. Chandrachud, (moves up to 9) 14.Sanjay Kishan Kaul (3.5.01)
15.Ashok Bhushan (moves up to 13) 15.A.K. Goel (2.7.01)
16.Sanjay Kishan Kaul (moves up to 14) 16.R. Bhanumathi (3.4.03)
17.M.M. Shantanagoudar (swaps to 18 because he is younger to S.A. Nazeer) 17.S.Abdul Nazeer (12.5.03)
18.S.Abdul Nazeer (swaps to 17 because he is elder to M.M. Shantanagoudar) 18.M.M. Shantanagoudar (12.5.03)
19.Navin Sinha (no change) 19.Navin Sinha (11.2.04)
20.Deepak Gupta (no change) 20.Deepak Gupta (4.10.04)

 

The Doctrine of ‘Legitimate Expectations’

 

These concepts of “representation of High Courts” as well as “all-India seniority” of High Court judges originate in the quite questionable “doctrine of legitimate expectations” of High Court judges that, all else being equal, they shall be considered for appointment to the Supreme Court.

 

Again, this doctrine has no Constitutional or legal basis. It was entrenched on the judicial side in the Second Judges case in 1993 by Justice J S Verma. He held:

 

“Just as a High Court Judge at the time of his initial appointment has the legitimate expectation to become Chief Justice of a High Court in his turn in the ordinary course, he has the legitimate expectation to be considered for appointment to the Supreme Court in his turn, according to his seniority. This legitimate expectation has relevance on the ground of longer experience on the Bench, and is a factor material for determining the suitability of the appointee.”

 

Justice Verma went further and laid the basis for a future evolution of the legitimate expectation of High Court judges to become Supreme Court judges into a vested Article 14 right of High Court judges, by saying in the same judgment:

 

“Due consideration of every legitimate expectation in the decision making process is a requirement of the rule of non-arbitrariness and, therefore, this also is a norm to be observed by the Chief Justice of India in recommending appointments to the Supreme Court.”

 

The doctrines that the upward queue should be formed on the basis of an all-India inter-se seniority (in addition to intra-High Court seniority) and that High Courts should be “fairly represented” emerged to support the “legitimate representation” doctrine.

 

Justice Ahmadi’s dissent in the same case strongly disagrees with Justice Verma’s doctrines of legitimate expectations and seniority. Justice Ahmadi said:

 

“We respectfully do not agree with the observations made in the judgment of Brother Verma, J. in regard to the application of the principle of seniority and legitimate expectation, etc. for reasons stated hereinbefore.”

 

The reasons he gave were the following:

 

“The ‘legitimate expectation’ doctrine can have no relevance in determining the suitability of the appointee. The seniority principle and the legitimate expectation doctrine are incapable of realistic application as they would destroy the representative character of the superior judiciary, which is absolutely essential for every segment of society to have confidence in the system. The seniority principle and the legitimate expectation doctrine would only push merit to the second place. Appointments to the superior judiciary should be solely on merit and other suitability factors and not on the basis of inter se seniority in the High Court or placement in the combined all-India seniority list. There can be no room for the legitimate expectation doctrine in cases where appointments are on merit and by invitation. We must hasten to add that where both the candidates under consideration are of equal merit, inter se seniority may have a role to play, subject to other requirements for maintaining the representative character, etc., being satisfied. We cannot help voicing our fear that the application of those help principles in the matter of choice of candidates for the superior judiciary is fraught with dangers. Nowhere in the world have these two principles been considered valid for appointments to the superior judiciary, except perhaps in France where the judiciary service is a career service, quite different from common law jurisdictions. As the issue does not arise from the referring judgment and was not put into direct focus, and as there was hardly any meaningful dialogue at the Bar, we too do not desire to go into the various facets of the matter as it is generally inadvisable to express opinions in the nature of obiter dicta on constitutional issues of great significance but we have said a few word lest our silence may be misunderstood to be concurrence with the observations made in the judgment of our learned colleagues.” (emphasis added).

 

The doctrine of legitimate expectations originates in the erroneous view in post-colonial India that there is a professional continuum between the offices of local and district court judge, High Court judge and Supreme Court judge and that a judicial career should legitimately include “promotion” from lower to higher judicial office through promotion. Globally, the idea that judges may be promoted has been treated with great caution because of the risk that judges will then consciously or unconsciously tune their conduct and work to please those who have the power to promote them.

 

The Status of Magistrates Report of the Commonwealth Magistrates and Judges Association (2013) says: “In some jurisdictions, such as Australia, the ‘expectation of promotion’ may be seen as a challenge to judicial independence since ‘a judicial officer seeking promotion may appear to be tempted to decide a case in a way which pleases the Executive government or other individuals or groups which may have influence in judicial appointments.’” (“The Status of Magistrates” Report, Commonwealth Magistrates and Judges Association, February 2013, citing Kathy Mack and Sharyn Anleu, “The Security of Tenure of Australian Magistrates” [2006] 30 Melbourne University Law Review). The 1985 Beijing Statement of Principles of the Independence of the Judiciary cautions, that “Promotion of judges must be based on an objective assessment of factors such as competence, integrity, independence and experience” (Principle 17) rather than on subjective assessments.

 

Another reason to do away with the system of promotions and the doctrines of legitimate expectations and seniority is that the Supreme Court and the High Court do not recruit from the same pools. Constitutionally prescribed qualifications to be a judge of a High Court are inferior to the qualifications required to be a judge of the Supreme Court.

 

The idea that judges progress in their career through promotion is considered by many to have eroded judicial independence because it replaces dependence on the executive with dependence on “senior judges” for “career progression”. Independence from senior judges is as important as independence from the Executive or other power centres. Some retired judges have informally expressed the concern that an attitude of subservience has started to creep in to some of the relationships between High Court and Supreme Court judges because of the power of the latter over promotions of the former

 

If judicial independence is to safeguarded, any move to a higher court must come through a process of application considered in an open and transparent selection rather than by promotion. There should not be any legitimate expectation that a judge will be promoted to a higher court. Instead, a judge should expect to have to compete in an open selection process to become a judge of a higher court.

 

The hidden agenda: High Court judges’ near monopoly over Supreme Court seats

 

The two “doctrines” (legitimate expectations and fair representation of High Courts) build a strong bridge between High Court judgeships and Supreme Court seats. Seniority (a very loosely used concept) is a distributive principle for inter-se distribution of the opportunity to become Supreme Court judges created by the first two doctrines.

 

The hidden agenda behind the three concepts is to create a near monopoly for High Court judges over Supreme Court seats, an outcome that was not envisaged in the Constitution.

 

The Constitutional vision was that High Court judges would be only one of three pools of eligible candidates (along with advocates and jurists) from which Supreme Court judges would be selected — not the only one as it has now virtually become (barring a handful of lawyers from the Supreme Court bar).

 

In practice, however, this vision was not realised. Over the last 68 years, High Court judges have cornered a whopping 98% of appointments to the Supreme Court. With the exception of 6 judges appointed from the Bar, every single Supreme Court judge since its inception has been a High Court judge (223 of 229 appointments to the Supreme Court as of May 10, 2018). Not a single person has ever been appointed from the third pool, i.e., jurists.

 

In the Constitutional vision, we should have had roughly 75 jurists, 75 advocates and 75 High Court judges appointed to the Supreme Court by now! Some 150 of these positions were diverted to High Court judges using the doctrine of legitimate representation supported by the doctrines of seniority and fair representation of High Courts. This “capture” of India’s Supreme Court cannot but have had significant consequences for the role of the Supreme Court, and its jurisprudence.

 

There is also a hidden social dimension that is hidden by the “fair” notion of “fair representation”. High Courts rarely have “fair representation” of the society from which they are drawn.

 

Let us take Kerala as an example. Miraculously, and of course only because of their sheer merit, 12 of 15 (80%) current or former Supreme Court judges whose parent High Court is Kerala belong to only two powerful communities — upper caste Hindu (7 judges) and Christian (5 judges) — that comprise some 25% of the population. Ironically, if Justice K M Joseph is appointed to the Supreme Court, this “oligopoly” will only worsen and rise to 13/16 (81%).

 

In contrast, there has been only one SC judge and not a single judge from the distinguished members of any OBC or ST community in Kerala. The highly accomplished and ancient Kerala Muslim community, whose population share is slightly larger than that of the privileged communities (26.6%), has only ever had two Supreme Court judges.

 

It is especially a matter of shame that there has only been a single woman judge in the Supreme Court from Kerala (Mme Justice Fathima Beevi, who was a judge for just two and a half years some 26 years ago) although, rare for India, women out-number men there, and there have always been, and continue to be, as elsewhere very distinguished women members of the Bar (including the first woman High Court judge in the country).

 

Nepotism is also a huge concern. A writ petition was filed in the Kerala High Court in March, 2018 challenging the latest recommendations being processed for elevation to the High Court on the basis that many names recommended are close relatives of judges. A similar analysis of other High Courts may reveal similar patterns.

 

The real challenge is not that High Courts should be represented in the Supreme Court but that weaker sections should be represented in the High Courts and in the Supreme Court.

 

The need for courts to be representative as a necessary requirement for their quality and effectiveness is now universally acknowledged worldwide. By that standard, our Supreme Court is one of the least representative institutions in the world. Credit must be given to the Union Law Minister for recognising the absence of SC/ST judges in the Supreme Court. This needs to be urgently remedied. Credit must also be given for “doubling” the minuscule number of woman judges on the Supreme Court from 1 to 2. The vision must be that at least half of the Indian Supreme Court must be women and that its class, religious and caste composition must reflect India, rather than a prosperous upper caste neighbourhood that practices untouchability.

 

The three doctrines of “fair representation” of High Courts, legitimate expectations and all-India seniority are red herrings. They are pulled out opportunistically when useful and sheathed when inconvenient. They are feints disguising the real (secret) reasons for opposing an appointment. They are dangerous ideas that have had a deleterious impact on the quality of judges and the independence of the judiciary. They have been used to create an unconstitutional monopoly in Supreme Court seats for High Court judges to the detriment of the quality and independence of the judiciary. They should be weeded out of the selection process for High Court and Supreme Court judges.

 

Due deference and comity

 

The quiet acceptance of the six crucial changes to the intricately calibrated vintage judicial primacy developed in Judges II and III show that we have entered a new era of “due deference” by the Collegium to the Executive and an acceptance by the judiciary of a much more expansive role in the appointment of judges.

 

The role of the judiciary seems to be gradually shifting from being a check on power to being a partner in power. The separation of powers is being weakened in a quest for reunification of all sovereign power under one common leadership. This is undoubtedly destructive of the very concept of judicial independence. It requires a separate, detailed analysis beyond the scope of this piece which focuses on the systemic implications of the K M Joseph imbroglio. One thing is clear. Judges who will join the Supreme Court going forward are likely to increasingly reflect the doctrine of due deference and comity. They may not be keen to assert “vintage judicial primacy”. The burden of defending judicial independence will therefore shift to the Bar, academia and civil society. The struggle will be long and hard.

 

Conclusion

 

Vintage judicial primacy arose in the 25-year period (1989-2014) when the Union was ruled by minority political coalitions. This was also the period in which social action litigation (to borrow Professor Upendra Baxi’s phrase) emerged. The political and social context behind the emergence of judicial primacy is complex and controversial. There was strong upper and middle class support for judicial primacy as a tool for insulating the judiciary from the grass-roots political class that had begun to emerge, and to stem the growing influence of leftist lawyers and leftist judges, many of whom were appointed before the Collegium system, who were developing a powerful new jurisprudence to defend the rights and interests of common people and marginalised sections against the Executive, the rich, the social elites, the patriarchs and the middle classes.

 

The strategy of containment worked. Judicial primacy on the whole arrested the liberal shift of the judiciary and restored its conservative core.  

 

With the emergence of a strong right-wing, conservative party in 2014 with a majority in the Lok Sabha, the context has changed radically. With a “safe” conservative Government in power there is little support amongst the upper and middle classes for insulating judicial appointments from their own ruling government. Quite the opposite. The new Government has a clear political and social agenda: replace the secular, socialist, social democratic republic; its ideology of individual freedom, equality and justice and therefore its democratic architecture of checks and balances through independence of institutions; and its programme of social revolution, with a theocratic Hindu Rashtra that would preserve and continue the ancient Vedic social order. Their message to the judiciary and the civil service is clear — play or unplug. They are aggressively resetting the terms of engagement between the judiciary and the executive. The upper and middle classes agree. It is this context that “vintage” judicial primacy is giving way to to “due deference” based on judicial-executive confluence and comity. At least, this is what the K M Joseph tea leaves seem to be telling us.