The proposed elevation of nine high court judges to the Supreme Court brings to an end the impasse in the collegium, which has been unable to recommend a single name by consensus for the last two years. The last recommendation was made on 28 August 2019, when Ranjan Gogoi was Chief Justice of India (CJI).
If the nine recommendations go through, there will now be three women judges in the apex court, including one (B V Nagarathna) who could end up as Chief Justice in 2027 if current succession plans — which go largely by seniority — don’t throw up unexpected surprises.
However, the three women judges being appointed now will merely restore the situation that existed in July 2020, when R Banumathi retired. In March this year, Indu Malhotra retired, and next month Indira Banerjee will retire too. Three women retirees in the span of just over a year are merely being replaced. There is no improvement in gender parity.
Before Nagarathna becomes CJI, we could also see the elevation of Bhushan R Gavai, a Dalit judge, as Chief Justice for around six months in the second half of the year from May 2025.
The elevation of nine judges, if it happens smoothly, brings out both the strengths and weaknesses of the current system of judicial appointments, where the collegium has the final say.
The one big strength is that when all the five members of the collegium agree, appointments can be quick and possibly diverse. But if even one judge disagrees, appointments can hit a drought. We had to function without the full complement of 34 judges in the Supreme Court because of this. And even if all the nine are elevated quickly, the court would still be one member short of its full strength.
In the previous collegium, Justice Rohinton Nariman was the second senior-most member, and he was said to be battling for two specific judges for elevation. Authentic media reports suggest that his strong interventions ended up blocking the appointments of others. Any system that allows one or two members of the collegium to block appointments cannot be a good one, especially in a situation where the collegium will not have all judges with the same conservative or liberal inclinations.
Justice Nariman believes that “merit” should be the sole criteria for judicial appointments, and that there should be more direct appointments from the group of senior advocates. He himself was one such appointee, and the next Chief Justice, U U Lalit, would be another. But the problem is really one about defining merit. When there is no system to measure the performance of higher court and lower court judges, merit is essentially what collegium judges say it is. And their knowledge may often come from personal interactions, experience and discussions with other judges they are in touch with.
Unless we have a formal system of evaluating judges and their performance in lower courts on a continuous basis, appointments by the collegium will be a hit or miss affair, with some doubtful appointees getting through. Without a professional and permanent judicial appointments system, which has its own arm to vet performance and shortlist potential candidates for elevation, the word merit will be mangled out of shape. Four past and present Supreme Court judges — Dipak Misra, Ranjan Gogoi, D Y Chandrachud and even Rohinton Nariman — were related to former judges or powerful politicians or members of the bar. Nariman is the son of eminent senior counsel Fali Nariman.
There are two other problems with merit. If performance, even with transparent parameters, is the sole criterion, the small catchment area for women and Dalit judges would ensure that the top court would be less diverse than it should be. In the medium term, when their numbers in the legal profession are small, merit needs to be assessed on some basic criteria, and once this benchmark is passed, some level of affirmative action would be needed.
A third issue is one of ideology. No judge, howsoever independent minded he may be, comes with a tabula rasa — someone who has no views on how to look at the world, and how to take each case on its own merit. There are liberal judges, conservative judges, and there are fence-sitters who swing this way or that in specific cases. If merit were the sole criteria, we could end up without a proper balance of ideologies in the bench, which cannot be right.
A conservative government elected with a popular mandate will not be able to deliver on its promises if, by chance, the Supreme Court is entirely populated by Left-liberal judges. And vice-versa. A balance of ideologies is vital, and this implies that some kind of parliamentary scrutiny of judicial appointments is needed. We don’t need partisan judges, but we do need ideological diversity even in the judiciary. More so when our Constitution allows the judiciary to take up public interest litigation purely on a whim and fancy.
It is a pity that the seven-and-odd years of the Narendra Modi tenure, which actually began with the idea of judicial reform, has gotten nowhere on this front. Any reform, even if initiated today after discussions between the executive, the judiciary, legal luminaries, and parliamentarians of various stripes, will take at least a decade to implement. The time to begin is now. We owe this much to posterity. We can’t have a judiciary, the arm that delivers justice, as the most unreformed arm of the state.
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