Why the Higher Judiciary Appointment Process Needs Urgent Reform

CJI Thakur on Independence Day expressed disappointment with the PM over ‘not speaking’ about appointment of judges in his I-Day speech and ended his statement sarcastically.

Ever since Modi government has come into power, the strain between the SC Collegium and the government has become more evident. It may be noted that President is ultimately the one who ‘appoints’ the judges. It may also be noted that citizens and parliament in general (except PMO, law ministry and AG of government) are still far away from not only having any say in the appointment of judges, but also in terms of the knowledge of the names that get selected for appointment of judges. Neither the parliament, nor the public witness or participate in any debates over the appointment of judges to SC and High Courts. The system and process is just not transparent enough. The summary of all court judgments on the issue of judicial appointments can be read in this write up . There have been three judgments on this issue.

How to make Collegium process more transparent and broad-based?

Though articles by most of the English media invariably suggest that NJAC (National Judicial Appointments Commission) and judicial appointments is a ‘turf war’ or ’tilting power equations’, but going into the details of suggestions made by Union Government (the Memorandum of Procedure, MoP, for collegium appointments) actually suggests that the government aims at having an institutional and transparency based process of judicial appointments, wherein more people are involved in appointment of judges instead of a closed group.

The law ministry has submitted a draft of the MoP to the Chief Justice of India. The CJI is likely to take a final call on the matter after holding consultations with four senior judges. A separate order, passed by a five-judge bench in December 2015, listed factors like eligibility criteria, transparency in the appointment process, secretariat and complaints etc for preparing the MoP. Going by various news reports, the following suggestions by the Union Government stand out for want of a more transparent and institutionalized process with a wider base of people suggesting the selection of judges, and seems to be aimed at clarifying criterion for selection :

  • As per this news report, the Union Government wants all judges to vet the list of names suggested rather than just the collegium.
  • That the government has proposed that age limit be set for appointment of judges.
  • The government also wants Chief Ministers, Advocate and Attorney Generals to have a say in the appointment of new judges.
  • As per this news report, government has proposed that while promoting a HC Chief Justice or a judge to the SC, the criteria of seniority, merit and integrity would be followed. Preference should be given to Chief Justices of the High Courts keeping in view their “inter-se seniority”.
  • It has also been proposed that “in case a senior Chief Justice is being overlooked for elevation to the Supreme Court, the reasons for the same be recorded in writing”. The government says that of the five judges of the Collegium for appointing Supreme Court judges, the views of each one must be made known to the government.
  • The government has proposed an institutional mechanism in the form of a committee to help the Collegium in the evaluation of suitable prospective candidates. It wants two retired judges of the Supreme Court and an eminent person/jurist to be jointly nominated by the Chief Justice of India and the government. The government asserts that wider consultation is necessary to select best candidates.
  • The government has also proposed that there be a secretariat to maintain a database of judges, schedule Collegium meetings, maintain records and receive recommendations / complaints related to judges’ postings. The government wants it to be under the Law Ministry. It suggests that the secretariat would help cast a wider net for better candidates, and the collegium should have comparative data for better decisions.
  • As per information from some internal sources, it seems that the government has proposed that if IB report on any of the suggested names is negative, the government will strike down the respective names. It seems that Collegium is not agreeing to this as yet.
  • The binding nature or compulsory ‘concurrence’ of the Collegium is what seems to be worrying the government ultimately.

Hence, the above suggestions and similar more seem to aim at restoring the balance of power in deciding the judges to be appointed, the balance which has been an issue since the ‘First Judges Case’ in 1982 and further judgments. It may be noted that apart from the Collegium, there is no other means for appointment as a judge to High Courts and Supreme Court. Though Articles 124 and 217 of our constitution deal with laying eligibility conditions for appointment of judges, but it is extremely difficult for citizens to know if those conditions have been met as the whole process is not transparent, neither are the appointments discussed in parliament nor the collegium does transparent press releases. Going by this news, information about appointment of judges to High Courts and Supreme Court is not available even under RTI (Right To Information) act. An activist had filed an RTI application and quoting this news report :

The case concerns an RTI request by activist Subhash Chandra Agarwal for the complete correspondence exchanged between the Supreme Court and the Centre on the appointment of Justice H.L. Dattu, Justice A.K. Ganguly and Justice R.M. Lodha superseding the seniority of Justice A.P. Shah, Justice A.K. Patnaik and Justice V.K. Gupta. Justices Dattu and Lodha went on to become the Chief Justices of India.

The CIC ordered the disclosure in November 2009, despite the Supreme Court arguing that “it is in public interest to keep the appointment and transfer from needless intrusions by strangers and busybodies in the functioning of the judiciary.”

When the Supreme Court came in appeal to itself, a two-judge Bench of the apex court led by Justice B. Sudarshan Reddy, in November 2010, observed that the case raised “important questions of constitutional importance.”

Instead of staying the CIC order, Justice Reddy, who wrote the order, referred the case to a larger Bench of three judges. Justice Reddy’s Bench framed several questions for the larger Bench to answer, including “whether the concept of independence of judiciary required and demanded the prohibition of furnishing of information sought?” and “whether the information sought for amounts to interference in the functioning of the judiciary?”

If the Constitution Bench eventually upholds the CIC order, the ordinary citizen would be empowered to seek details of judicial appointments and transfers from the Chief Justice of India under RTI, thus opening a judicial Pandora’s Box.

Incidentally, while keeping this case pending, the Supreme Court had in 2015 urged six national political parties, including the BJP and the Congress, to disclose their financial sources and assets under RTI”.

Post the ‘Second Judges Case’ in 1993, the ultimate power for initiating and selecting the judges for appointments has been with CJI and few of his senior colleagues. But has the lack of involvement of any other Constitutional body & lack of transparency in selection of judges given rise to nepotism in judiciary? For example, going by this article :

“In May 2013, judges of the Punjab and Haryana High Court protested the elevation of nine advocates as judges of the high court. They alleged that the independence and integrity of the judiciary has been put at stake by the Collegium while giving recommendations because the decisions of the Collegium seem to have been based on considerations other than merit and integrity of the candidates. These judges further wrote that it has now become a matter of practice and convenience to recommend advocates who are the sons, daughters, relatives and juniors of former judges and Chief Justices. Nepotism and favoritism is writ large. The implications of such degradation are that the judges are selected on criteria such as caste, religion, office affiliations, political considerations and even personal interests and quid pro quo.”

All is not well with Bharat’s Judiciary

Not only this, very recently, a Hindi news portal published an elaborate write up on alleged nepotism in the recent list sent by Allahabad High Court to Supreme Court for appointment of judges. As per this article, this information has come out from an ‘Advocate Law Group’ fighting corruption and favoritism in judiciary. The write up mentions dozens of judges who have their sons, daughters and relatives as judges too.

This article throws light on various aspects of judicial appointments. As mentioned above, Articles 124 and 217 deal with laying eligibility conditions for appointment of judges. The news piece mentions that many of the names suggested in the list sent by Allahabad High Court don’t fulfil these conditions. It also mentions that in year 2000, one list sent by Allahabad HC collegium had raised apprehensions as 8 out of 13 judges suggested were relatives of sitting judges. So the Law minister at that time, Ram Jethmalani in the AB Vajpayee government, had ordered an inquiry in all the lists sent by all high courts for appointments. The article mentions that it was found that 90 out of 159 names suggested were relatives of different judges. Eventually, the whole list was dismissed.

Another article in ‘The Tribune’ talks about the impropriety created by the trend of judges having relatives practising in the same courts.

In another alleged corruption case involving 73 judges, mentioning irregularities in allotment of plots in Karnataka, the state government had sold land to the Karnataka State Judicial Department Employees House Building Cooperative Society (KSJDEHBCS) at a huge subsidy so that it could fulfill the ‘public purpose’ of housing court employees who could not afford alternative accommodation. However, soon after the colony was formed near the Bangalore airport, judges too started enrolling as members and accepting the steeply discounted plots. Ex CJI Dattu and current CJI Thakur also availed plots in that society.

DNA City had covered the whole issue in November 2011 stating that “judges were allotted plots violating the bye-laws and observations of SC and HC”. But both HL Dattu and TS Thakur went on to become CJIs post this case.


Image Credit : www.jailcorrupt867judges.wordpress.com

There have been multiple cases of corruption filed on various judges, but most continued to retain their positions or even grow, inspite of cases not being settled. There have been allegations on Justice YK Sabharwal  , Justive V Ramaswami , Justice AS Anand , Justice Vijendra Jain , Justice F.I. Rebello, Justice KG Balakrishnan and many more.

Politics and Ideology of Judiciary

Also, there seems to be a firm hold of the Nehruvian establishment over judiciary. This is best illustrated by the spate of PILs (some by foreign-funded NGOs) entertained and judgements passed by SC related to Hindu festivals and religious issues – this myInd.net article provides a good summary of the same. Another interesting aspect is that there seems some internal politicking within the Modi Government, which could be hurting the Government’s push for greater transparency in the judicial appointment process. As per our internal sources, Devi Das Thakur, late father of current CJI, was a good friend of Girdhari Lal Dogra from Congress, who in turn is related to a senior cabinet minister. Ex CJI AS Anand was also Dogra’s friend.

It seems the power equations are played as and when one gets a chance. Going by our internal sources, how Justice KG Balakrishnan was appointed is nothing short of a scandal. In 1998 when the NDA Government came to power, SC judges had to be appointed and SC collegium gave a list – which later went to the President for appointment via the law ministry. When the file went to President, he sent a name back to Law Minister to be considered for SC. KR Narayanan was the first Dalit president and KG Balakrishnan was a Dalit too. Next time the file was sent, President seemed to have sat on the file. And when the third time the file went, the President seemed to have insisted and got KG Balakrishnan appointed. And KG Balakrishnan had one of the longest terms as CJI (over 3 years) and allegedly got many other judges appointed to SC as per his whims and fancy.

KG Balakrishnan’s son became a judge. YG Chandrachud’s son has become an SC judge. Chances are that more than half the judiciary in SC have become a family concern. Not that they can’t become judges if they are children of judges, but the fact that so many of them get appointed does raise questions about the process. Now, ex-CJI Ranganath Mishra’s nephew, Justice Dipak Misra is in line to become CJI in 2017. This is some sort of dynastic elitism which creates a mutually beneficial admiration society. It would not be far fetched to say that our Judiciary appears to have become a modern caste system in itself!

Many judges land plum post-retirement sinecures. For that, all they need to do is – one or two favors for the government. By law, a judge is not allowed to do practice in the same court after retirement – as he would have undue influence. If such care is taken by our laws, then how can one be allowed to seek post-retirement benefits? CJI Thakur’s father went on to become a governor, while ex-CJI P Sathasivam was appointed as Governor of Kerala. Positions with unlimited perks on esteemed panels or commissions may also be ways of  conferring post retirement benefits. CJI Ranganath Mishra became a Congress MP post retirement, while NHRC, NGT, PCI are other cushy avenues largely reserved for senior judges.

This kind of ‘I scratch your back, you scratch mine’ culture is primarily a Congress legacy, though corruption and nepotism exist everywhere/ in every party to certain degrees. The first government to seek to dominate judges was led by Indira Gandhi, who through her key advisers such as P.N. Haksar actively interfered in judicial appointments, most notoriously by superseding several outstanding judges to make A.N. Ray Chief Justice of India in 1973.  After 10 years of UPA, the perception that we have a ‘Congressised’ judiciary has gained credence. Ex Uttarakhand Chief Justice KM Joseph created a constitutional crisis by revoking President’s rule in Uttarakhand recently, in spite of the fact that the ruling government was not able to pass the finance bill and serious allegations surfaced regarding political horse trading by then incumbent Congress government. Interestingly, Justice Abhilasha Kumari, daughter of Himachal Pradesh CM Virbhadra Singh was posted in Gujarat (of all places) during UPA-1.

The judiciary seems to have become increasingly influenced by the left-liberal NGO crowd. For something as important as citizen’s right to know how the judges are appointed, the SC has been sitting on the petition for about 6 years to decide if this information should be brought under the ambit of RTI act. But it has ample time to entertain frivolous petitions / PILs questioning Hindu culture selectively, like recent dahi handi case, jallikattu, temple entry for women etc, while clearly refusing to interfere in issues of other religions, like the recent refusal to intervene in granting rights to Muslim women for entering Haji Ali dargah.

Judiciary and politics are strange-bed fellows; there seems to be too much impropriety, corruption and nepotism. It is clear that deals have been done, lines transgressed and the justice delivery system suffers. Our judicial appointment system has swung between two extremes in the last 40 odd years – excessive political interference initiated by Indira Gandhi, and now the arbitrary and opaque collegium system. It is time to find a middle path, and right thinking citizens must get involved in the debate and give a patient hearing to the Government’s stand regarding the Memorandum of Procedure (MoP) for collegium appointments.

About the Author

Garima Aggarwal
Working with HinduPost as a part-time writer; ex-retail professional; spiritual, nationalist! Mother & Hindu feminist. Twitter id : @gary_1980in
  • G.Mani

    Good article.Thanks.

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  • nayak

    Good write up.As a layman I wish to know whether the President can intervene.As he is acting on the advice of the cabinet,why NJAC can not be implemented instead of opaque collegium?

    • Vikram

      Not that simple…the moment NJAC was passed by Parliament and President gave his assent, a PIL was filed in SC challenging the new law (ecosystem is well-oiled). SC bench struck it down as ‘unconstitutional and void’.

      • nayak

        Thank you Vikram.When the president approves it after being passed in both Loksabha and Rajyasabha,how SC can accept PIL?

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