In recent times, high court judges have been in the news for all the wrong reasons – casteism, communalism and corruption. A few years ago, while addressing a Tamil Brahmins global meeting in Kochi, Kerala high court judge Justice V. Chitambaresh said: “Who is a Brahmin? A Brahmin is twice born, because of his poorva janma sukratham (good deeds of his past life). He has certain distinct characteristics, clean habits, lofty thinking, sterling character, mostly vegetarian, and a love of Carnatic music. All good qualities rolled into one is a Brahmin…”
In the Madras high court, the general secretary of the Bharatiya Janata Party’s (BJP’s) Mahila Morcha – Lekshmana Chandra Victoria Gowri – was recently sworn in as a judge. Among her communal statements were: “As far as India is concerned, I would like to say Christian groups are more dangerous than Islamic groups. Both are equally dangerous in the context of conversion, especially love jihad… The problem of Christian (sic). If the Islamic terror (sic) is green terror, the Christian terror is white terror.”
On December 8, 2024, Justice Shekhar Kumar Yadav, a sitting judge of the Allahabad high court, delivered a speech at a gathering organised by the Vishwa Hindu Parishad (VHP), a right-wing Hindu organisation. While ostensibly speaking about the Uniform Civil Code (UCC), Justice Yadav seemed to endorse a system of majoritarian rule while also using phrases like ‘humaari Gita, aapki Quran (our Bhagavad Gita, your Quran)’ and a derogatory word like ‘kathmullah’.
Then we had this gem from the division bench of the Madhya Pradesh high court comprising Justices Sushrut Arvind Dharmadhikari and Gajendra Singh: “It took almost five decades for the Central government to realise its mistake; to acknowledge that an internationally renowned organisation like RSS was wrongly placed amongst the banned organisations of the country and that its removal therefrom is quintessential. Aspirations of many central government employees of serving the country in many ways, therefore got diminished in these five decades because of this ban.”
Now we have this case of sacks of currency notes at the residence of a Delhi high court judge. “As the Supreme Court released videos and photos of burnt cash allegedly recovered from Justice Yashwant Varma’s residence on Saturday, the Delhi high court judge vehemently denied the removal or seizure of any currency notes from his building following a fire incident in his storeroom last week.”
Hopefully the Supreme Court-ordered inquiry will bring out the facts.
The root cause for the rot in higher judiciary is the way high court judges are being selected and appointed. In this highly flawed process, names are made public only after selection by the collegium. “The selection process is entirely opaque and behind closed doors, where the parties involved are the collegium and the government (through the Intelligence Bureau). This not only has transparency costs, but also, the costs are asymmetrical: it is but obvious that where the government approves of a particular candidate, it can simply withhold relevant information from the collegium. This, then, creates a situation: by the time that a candidate’s name is in the public domain – thereby allowing for relevant material to be brought to the collegium’s notice by the public – the selection has already been made. Once again, the fall-out of this is asymmetric: given that the government retains the power of formal appointment, when it approves of a candidate, it can rush the process through.”
This situation has serious and severe ramifications for the constitutional scheme of separation of powers, independence of judiciary and delivery of justice to India’s parched millions. The selection and appointment of high court judges has been a long festering issue between the Union government and Supreme Court that is begging for a solution. The bone of contention is the Memorandum of Procedure (MoP) which will be the rule governing appointment of judges. Strange as it may seem, India’s higher judiciary, which adjudicates every law and rule in the country, is itself functioning without any rule.
In 2015, the Supreme Court struck down the government’s proposal to set up a National Judicial Appointments Commission (NJAC) for appointment of high court and Supreme Court judges. Since then, the government and the collegium have not been able to finalise the MoP.
This is because of the sharp difference of opinion between the two on many counts. Some of them are:
1) Power to reject candidates: Government proposes to retain power for rejection of candidates recommended on grounds of national security/public interest. Collegium is opposed to this.
2) Writing down reasons: Government wants that in case a senior judge is being overlooked for elevation to the Supreme Court, the reasons for the same be recorded in writing and the views of all five judges of the collegium must be made known to the government. The collegium does not favour this.
3) Binding recommendation: As per the existing system, the collegium’s recommendations can be sent back but if it reiterates the same, it is binding on the president. Government is asking for “participatory consultative process at the highest level”.
4) Consultative mechanism: Government proposes to set up a committee to assist the collegium in evaluation of candidates. The collegium feels this is not necessary.
5) Candidate’s database: Government proposes a secretariat under the law ministry that maintains a database of judges, schedules collegium meetings, maintains records and receives recommendations and complaints related to judges’ postings. The collegium wants this under the ambit of the registrar of the Supreme Court.
Proponents of NJAC argue that selection to the higher judiciary must be made by a full-time (not ex-officio) body, which is independent of the government and the judiciary and which goes about the selection in a rational and transparent manner. The business of selecting hundreds of judges in a year to the higher judiciary, if done properly, would require at least a thousand candidates to be considered and comparatively evaluated over multidimensional criteria in a fair and rational manner. This would require a full-time body, which could totally devote itself to this process, with professional support.
There has to be transparency in the selection to prevent arbitrariness or nepotism. It would require that the criteria for selection of judges and standard of evaluation of candidates be made known and names of shortlisted/selected candidates announced before appointment, so that those who have relevant information about the candidate can send it to the appointing authority. Basic criteria to judge the competence of a candidate should include integrity, competence, judicial temperament, common sense and sensitivity towards the problems of the common man, among others. But in India’s deep-rooted culture of favouritism, cronyism and nepotism this is utopia.
Actually, the tussle is between an ex-officio group called collegium and a full-time commission, both non-constitutional entities. Hence the crisis and the conundrum that has now assumed alarming proportions, all because of a historical blunder. At the time of independence, there were two All India Services (AIS)-Indian Civil Service (ICS) and Indian Police (IP). ICS was doubling as civil servants and judges. Since the constitution of India brought in separation of powers between executive and judiciary this arrangement was no longer tenable.
Therefore, Article 312 of the constitution mandated parliament to create one or more AIS. Sardar Vallabhbhai Patel got two of them (IAS and IPS) covenanted in the constitution itself. But B.R. Ambedkar, the law minister frittered away the opportunity and till date there is no All-India Judicial Service (AIJS). While the higher executive is manned by permanent civil servants recruited through a rigorous and transparent process, higher judiciary is occupied by the products of the spoils system which is secretive and has no rules, norms or standards.
Nevertheless, the issue of creation of AIJS keeps cropping up off and on. In 2010, three eminent jurists – Justice M.N. Venkatachaliah, Justice J.S. Verma, Justice V.R. Krishna Iyer – examined the issue in some length and opined thus: “We agree with the urgent need to constitute the IJS as envisaged by Article 312 of the constitution of India, at par with the other All India Services like the IAS to attract the best available talent at the threshold for the subordinate judiciary, which is at the cutting edge of the justice delivery system to improve its quality. Moreover, the subordinate judiciary is an important feeder-line for appointments to the high court. The general reluctance of competent lawyers to join the bench even at the higher levels adds an additional urgency to the problem. IJS will, in due course of time, also help to improve the quality of the high courts.”
Various law commissions (first, eighth, and 11th) had also suggested the creation of IJS. Even the Supreme Court – in two of its judgments in 1991 and 1993 – had endorsed the setting up of IJS. Yet it is mysterious that this service has not materialised. In November 2012, a committee of secretaries chaired by the cabinet secretary had approved a “comprehensive proposal” for creation of the service.
Prime Minister Narendra Modi while addressing a function to celebrate the completion of 50 years of Delhi high court on October 31, 2016 sought a debate on creating AIJS which has been hanging fire right since independence. Union law ministry also floated the idea of chief justice of India convening a meeting of the chief justices of the high courts to arrive at a consensus on formation of AIJS.
As recently as November 26, 2023 during her inaugural address at the Supreme Court’s constitution Day, President Droupadi Murmu called for an “All-India Judicial Service” to recruit judges, saying this will help make the judiciary diverse by increasing representation from marginalised social groups.
But nothing tangible seems to be happening to make AIJS a reality. Is the government waiting for the entire higher judiciary to collapse? The jury is out.
M.G. Devasahayam, formerly of the IAS, is coordinator, Citizens Commission on Elections.
