Bench hunting: Is ‘Gopal Gate’ the only instance?

Yes. I take the liberty to call it a ‘Gate’ cause it seems to me so! Fair appointment of Judges undeniably goes hand in hand with the constitutional principle of independence of judiciary. The constitutional duty bestowed upon the judges to uphold the rule of law can only be fully subscribed to, if the people elevated to bench are awarded due respect and honour so that they can hold the post with dignity. What we have just witnessed is another abuse of power by the government by wrongly segregating a particular name from the file submitted by the CJI based on unidentified (largely political) agendas encouraged by a vendetta (Sohrabuddin fake encounter case, Appointed ASG & SG by UPA, so considered belonging to the congress team) to make sure that favourable benches preside over the apex court. Ignoring precedents & misapplying settled principles by adopting a technique like this definitely falls under the ambit of Bench hunting.

But, then I ask myself, isn’t the whole process of higher judicial appointments somewhere politically sponsored. Apart from the ‘read and told’ theoretical phenomenon attached to it and the hue and cry of JAC, there exists the practiced aspect of the procedure of such appointments. The Constitution as a political document has adopted a very liberal approach in laying down qualifications and disqualifications of constitutional functionaries, be it Judges or be it parliamentarians. Art 124(3) mentions qualifications for a Supreme Court Judge. The basic requirement is Indian Citizenship, and then either of 5 years minimum experience as a High Court Judge or 10 years minimum experience as an advocate or a distinguished Jurist in eyes of the President. The practice however has mostly been that High Court Judges are appointed and very rarely direct appointment from bar to a Supreme Court Judge is done. The process in a nutshell seems very simple - The chief justice of the high court, with the help of two senior-most judges, draws up a panel of prospective candidates. (There is no system of public intimation/discussion or advertisements eliciting applications for the posts.) After examining the credentials of the judges on various factors such as competence and integrity and state intelligence inputs, the high court chief justice forwards the names of the prospective judges to the CJI for confirmation. The CJI consults the collegium of four other senior-most judges of the apex court. The CJI and the collegium can approve or reject the names. If the collegium approves the names, they are sent to the President through the Union government for appointments. The government does not have the final say in the matter as the entire power is vested in the collegium and the CJI. Conventionally, Supreme Court judges are appointed from among the chief justices of the various high courts or the senior-most presiding judges of the high courts. But, the process though seems simple, is full of undeclared external influences. A lot of factors like academic qualifications, cases argued as an advocate, judgments written, proportionate state representation, religion representation, women representation, castes representation etc are adhered to in appointments. The role played by political punctuations in appointments of judges of High Courts however is particularly very important.

So, the focus shifts to how the judges of High Courts are appointed. Text of Art 217(2) speaks a similar theory of qualifications. However, practically, the appointment of High Court judges is a discretionary power which has ‘co extensive - non insular’ strings attached with political relationships. The appointment process in the High Courts has been number of times systematically stymied by tendentious political acts and humiliated by gross political interference. The theoretical aspect and the actual practice are the book ends which enclose many shades from the tablecloth. To become a judge or to even become a senior counsel, one needs to have correct political connections. It is a cycle of power which splendidly portrays murky selections and not as opposed to a democracy, elections. The plenipotentiary authority concentrated in few hands practicing non disclosure to the public at every stage in pursuit of what has been told to fellow countrymen as ‘to uphold the rule of law’ has raised suspicion multiple times. The sacred process has to an extent turned into a market with monopoly of a few. Kith and kin of former judges have undeclared quotas, nepotism prevails largely, caste-religion-place of birth play a very vital role and exchange of favours is rampant. High Court Judges who hope to come to the Supreme Court look to members of the collegium and what their views are on subjects. Impressionistic assessment is what takes place which must be replaced by an element of objectivity. In absence of a transparent mechanism, the grammar of fair appointments is patternised willfully. Political emissions blur the vision of transparency. There is no transparency because we don’t know how a particular Judge is chosen or why a particular lawyer is chosen to be appointed to the High Court. Since independence, to their own satisfaction of appointments, leadership ambitions of different classes have played a vital role. The Gopal Gate is in furtherance of what has been in a secret fashion done time and again. What happened in Madras High Court recently throws some light on this. It seems as if the CJI has a veto power, but his will succumbs to the names forwarded and calculated on a political spectrum. Plus, it being a cycle of power, even the appointment of CJI is a product of correct political inclinations and eminent merit.

A modern constitutional democracy for constructive judicial management needs transparency in appointments of judges in particular. To our demise, the elephant in the room is largely overlooked both by political theorists and juridical pundits. The Gopal Gate is just another milestone in the long journey towards absolutely fair and politics deprived appointments to the bench. Not only governments but also the collegium has been at times alleged to have hunted the bench. A lot many such incidents go unnoticed and unsung. In the words of Justice Krishna Iyer: “There is no structure to hear the public in the process of selection. No principle is laid down, no investigation is made, and a sort of anarchy prevails.”

Let us not view such serious open secrets as non events. It is the public (you and me) of this country which always suffers. The essential unity of a nation should be depicted especially at a surcharged time when such incidents by those with power are becoming frequent day by day. Who can forget the dramatic supersession of three judges during Mrs. Indira Gnadhi’s tenure, though it was before 1993. And I know, the ‘Gopal Gate’ will not be forgotten. I fully support his withdrawal of consent and his decision to resume work after CJI Lodha demits his office and I strongly condemn how the Union Government has tried assassinating character of a devoted man who has given so much to the country.

They say “It is hard to tell the truth, harder still to accept it.” Let us accept it now, we need a change.

Namit Saxena is a Law Clerk cum Research Assistant in the Supreme Court of India