When gossip and rumour surround the appointment of judges

The corridors of the Supreme Court in central Delhi are possibly thicker with gossip than those of any other institution in the capital. This gossip usually springs from information exchanged between judges and senior lawyers, often furtively, and not always on the court premises. Information then trickles down to juniors, the clerks of these judges and lawyers, and, finally, to journalists, and the stray dogs outside the compound.

But, since judges exist in an opaque, leak-proof sphere, almost none of this information is ever corroborated with documents, or quotes. The rumours that emerge are chiefly perused by the powerful in Delhi for their own interests. This opacity of the judicial officers’ world is central to the ongoing debate about whether the current system of appointing judges is effective, or whether it needs a drastic change.

Suhrith Parthasarathy’s September 2013 piece in The Caravan outlined the tussle from the 1950s between the judiciary and the executive to retain power over the appointment process. Just prior to 1993, power to make appointments rested primarily with the executive. After a 1993 Supreme Court ruling in a case known as the Second Judges Case, this power shifted to the judiciary. Today, in accordance with this ruling, our higher court judges are selected by the Chief Justice of India, in consultation with a few of his most senior colleagues. The executive may raise objections but they have no veto power in the process. A pending Judicial Appointments Commission bill aims, in spirit, to strike a balance between the two arms of the government.

If the Second Judges Case judgment was intended to prevent the politicisation of judicial appointments, as had been witnessed in the preceding couple of decades, recent events render that intention void. The executive’s sabotaging of senior advocate Gopal Subramaniam’s elevation to the bench, and the retired judge Markandey Katju’s allegations that a judge with doubtful integrity was elevated and allowed to continue on the Madras High Court bench due to political pressures on the government of the day, suggest that even the collegium is not beyond politics. (Even when there are no direct allegations, as with the case of the lawyer UU Lalit’s elevation to the Supreme Court, the lack of transparency in the procedure gives rise to rumour. In Lalit’s case many speculated that his appointment was linked to his connections with the BJP president Amit Shah—though most people wrongly claimed that Lalit had actually represented Shah, when in fact, he had represented a fellow accused in the Sohrabuddin case.)

This has reignited questions about which group of people is best suited to choose the judges of the highest courts of our land. Should our revered senior-most judges, who are answerable to none and approachable to none be allowed to make the decisions? Or should our opportunistic—but electorally accountable—politicians, whether in power or in the opposition, have a say, if not preeminence, in the selection process? Or, as some have proposed—and the idea has been around for a while—should we establish a countrywide cadre of judicial officers, like the Indian Administrative Service, which will produce career-judges based on seniority?

In fact, none of these systems would guarantee that the best possible judges are brought to the top courts, because it does not matter which arbitrary group of people are the decision-makers. The problem is not solely one of who will constitute the decision-making body, but of what the decision-making process is. Unless there is transparency in how a particular judge was elevated to a high court or the Supreme Court, doubts can always remain about the judge’s integrity and credibility.

It is a fallacy to suggest that the apex court’s judges can be trusted because of their position. Though the courts are generally held in higher regard than the executive, their individuals can be as fallible as our elected leaders. Further, unlike the executive, which faces scrutiny from the media and opposition, and can be punished for its conduct by the electorate, the judiciary is almost never examined. Fear of contempt-of-court laws often prevents the media from being too critical of judicial proceedings and decisions. And yet, this is not to say that we should place our faith solely in our elected, many of whom have serious criminal charges pending against them. After all, the selection process of top bureaucrats and heads of government-owned companies, which is in the hands of the executive, is rife with rumours of corruption, and of lucrative posts being auctioned.

That leaves the option of creating a national cadre. But whether the governing authority of this proposed system is headed by the judiciary or the executive or an autonomous body, elevation to the highest courts cannot be solely be based on seniority—simply because, from equally senior judges, some must be chosen over others. In the Indian Administrative Services, the best-serving bureaucrats from each batch are empanelled to senior positions, but even this process is inscrutable, finally giving wide powers to the members of the governing body over the selections.

Whether we continue with the present system or shift from it, what is critical is that measures be put in place to make the process transparent, and those making the decision accountable. The reason why a particular person was selected over others should be in the public record. Who opposed a particular candidate’s elevation and who supported it, with detailed reasons, perhaps even file notings and minutes of the meetings of the selecting body, should be made available on the Supreme Court website, or at least be accessible through Right to Information procedures.

In the Indian Express today, Pratap Bhanu Mehta argued against greater transparency to the selection process, writing:

There is a clamour for selection committees to explain their appointments publicly. This is nonsense. There are good reasons not to malign reputations or cast doubt on the competence of rejected candidates. If they are serving judges, it might undermine their authority. It is possible to select one without suggesting others were unworthy; but public articulations make this difficult. Do you really want unelected judges or senior counsel to go with a sign on their head: “unworthy of the Supreme Court”? All institutions run on something called presumptive worthiness. Undermining this has long-term consequences for the institution.

Selection is a matter of judgement. It is not just a matter of objective qualifications but involves subtle points of judgement like institutional fit, temperament and so forth. These are all relevant. But the more selection committees have to explain themselves, the less likely it is that the relevant criteria will be taken into account, because these criteria are context specific.

This is a nuanced and valid point—but the fact remains that the need for transparency outweighs the risks that Mehta describes. If worthy judges or lawyers can be rejected without anyone knowing why, or who opposed them, it allows the possibility for personal or ideological motives to influence the selection process. In theory, all chief justices of high courts and senior advocates are eligible to be elevated to the apex court—not being selected need not dent their “presumptive worthiness,” especially if sound reasons are provided, such as a shortage of experience in a necessary field, or the relative strengths of another candidate. Precisely what information about the unselected should be made public can be debated, but to leave that part of the process out of public scrutiny will be folly, since strong biases can be exercises in selecting as well as not selecting a candidate.

To call for this transparency is not even to necessarily demand that selectors have to be held accountable with consequences for their decisions. But as with their judicial pronouncements, their arguments in favour of or against the selection of particular judges should be accessible to the public so that wider public discussions about the judiciary can take place.

Was UU Lalit elevated and Gopal Subramaniam blocked due to political interference in a collegium that on paper is meant to be immune to such influences? Even if we assume that both the collegium and the executive acted in good faith, the lack of transparency leaves both candidates vulnerable to the grinding of rumour mills—Lalit in his judicial career, and Subramaniam as he resumes work as a lawyer. This will not just be because of politics, but because the opacity of the process allows rumours, aspersions and gossip to take prominence over simple facts.

The judicial appointments process will not gather public trust simply by replacing the constituents of the selecting group. What people need to know is not just who is selecting judges, but how they are being selected.