The trinity of fairness, transparency and accountability form the bedrock of an effective and independent judicial system. Likewise, legal reasoning, justifiability and confirming to judicial ethics remains 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 set of principles applicable for appointment of judges to the Supreme Court and appointment of judges to the High Court. This entails appointment of the Chief Justice of India as well as the Chief Justice of the High Court. However, the archive of judicial appointments in India is full of paradoxes and application of differential norms. This paradox is vividly reflected in the fact that the reasons which created a ground for the Supreme Court to take away power of appointing judges from the Executive in the Second Judges Transfer Case (1993) are now openly being practiced by the Supreme Court Collegium itself.
On April 26, 1973, after the landmark decision of Kesavanand Bharati vs. State of Kerala, three senior most judges (Justices Shelat, Grover and Hegde) were superseded and fourth in seniority i.e. Justice A N Ray was appointed as the Chief Justice of India. The second causality which astounded legal circle occurred when Justice H. R. Khanna was passed over by Justice M H Beg, following a strong dissenting opinion questioning the executive power. These two events were treated as dark event in the history of Supreme Court. But, surprisingly, we don't get astonished by the routine supersession of Judges by the Collegium and it has become a new normal.
Justice Ranjan Gogoi was elevated to Supreme Court (on 23.04.2012) before his Supreme Court colleagues Justices Madan B. Lokur, Kurian Joseph, A.K. Sikri, S.A. Bobde, R.K. Agrawal, N.V. Ramana, Arun Mishra, A.M. Khanwilkar, A. M. Sapre and D.Y. Chandrachud, who were all senior to him. Justices Deepak Gupta and Naveen Sinha both appointed as Supreme Court Judge on (17.02. 2017) have approximately over 30 high court judges' senior to them as of now. At the time of their appointment on February 17, 2017, they had around 40 high court judges' senior to them in various high courts. Similarly, Justices S. Abdul Nazeer and Mohan M. Shantanagoudar both elevated to Supreme Court (on 17.02. 2017) in preference to 20 high court judges' senior to them. The recent appointments of Justice K M Joseph, Justice Hemant Gupta, Justice R. Subhash Reddy, Justice M. R. Shah, Justice Ajay Rastogi and Justice Sanjiv Khanna who stand at Sl. nos. 42, 4, 5, 17, 25 and 33 respectively in the all-India combined seniority of High Court Judges once again established that whether it is appointment of a Chief Justice of a High Court or of Judges to the Supreme Court, seniority has been given a little weight and the choice has always been made in the name of quality and his worth on the Bench. However, collegium never assigned any credible parameters for decrypting one judge more worthy of being elevated to the Apex Court without even being a Chief Justice of any High Court and superseding many of his senior brother and sister judges.
This principle is purely based on convenience and smells nothing less than a foul play. If increasingly greater reliance is placed on this principle of merit and qualitative worthiness of a judge as opposed to a more objective criteria of seniority, one may argue why the same is not followed in case of appointment of the Chief Justice of India. In fact, even in case of qualitative assessment of a judge, criterion which is more objective and transparent could be developed. These may include- number of majority judgments authored by a judge, number of dissents authored by a judge, number of concurring opinions authored by a judge, number of cases disposed of by a judge as judge of the High Court and also as the Chief Justice of the High Court, number of significant judgments authored by a judge, etc. Such criterion can be further sharpened such as defining as to what would constitute a landmark judgment and probably also 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 per se. In absence of it merit base argument would remain a shallow drum being played often by the collegium when they prefer to favour one judge over the other disregarding a well established principle of seniority. Besides, one may also question that why same qualitative test cannot be applied in the appointment of Chief Justice of India. The judgments of the judges bespeak their merit and academic prudence is by far based on reasoned beliefs and arguments. This sacred convention of seniority which is conveniently confined to appointment of Chief Justice of India unleashes rapid succession of CJIs with short stints of one month, two months or few months where no chief justice can hope to bring any substantial reform in the judiciary.
Besides, the collegium must be cautious of its decisions of conveniently tampering with the seniority and merit based rules depending on the extra judicial weight of a judge who is perhaps expecting an elevation. Though the Supreme Court recently dismissed the review petition challenging the striking down of a Constitutional Amendment that sought to replace collegium system in the appointment of top judges on grounds of delay and lack of merit but if existing system continues then day is not far when government once again will make an attempt to bring National Judicial Appointment 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 a tacit support may also come from within the sitting judges who may too aspire to become the Chief Justice of India 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.
(The piece was originally published in the New Indian Express)
Dr. Yogesh Pratap Singh is now the Registrar, National Law University Odisha
Dr. Nachiketa Mittal is an Assistant Professor of Law, National Law University Odisha.
Views are personal only.