By John B Monteiro
Mangaluru, Sep 22: In the midst of controversy and standoff between the Central Government and the Supreme Court on the need for transparency in the selection of justices for higher judiciary, a googly has been let loose on nepotism in the appointment of justices. A public interest petition on the subject of transparency in such appointments has been admitted in the Supreme Court and the next hearing is fixed for September 30.
Whatever is the outcome of this PIL, the current campaign on nepotism in higher judiciary has an agenda which is best reflected in the old proverb: Give a dog a bad name and hang him. In his proverb, ‘a bad name’ means ‘a bad reputation’. However untrue the charges may be, they may ruin a man’s reputation and so ‘hang him’ – that is, end all chance of his ever re-establish himself as an honest and respectable citizen. This is much the same as fling dirt enough and some will stick. In this case the target is an institution, the Supreme Court Collegium, instead of a person. The shifting of focus from the Collegium selection to nepotism in the process is a clever googly to discredit the Collegium system and senior justices.
Flak for Favouritism
While on the subject of nepotism in higher judiciary, we can start with a list concerning the Supreme Court itself cited in a cover article in Outlook weekly magazine (19/9/16) titled ‘Cradle of Justice’ wherein it declared that ‘About one-third of Indian higher judiciary are relatives of former judges.’ And again in the main article titled ‘Scions of Themis and Zeus’ it said, “Keep those elevated from the subordinate judiciary out, and nearly half of India’s top judges are kith and kin of ex-judges and top jurists.” Speaking on the subject, Arun Jaitley, now union finance minister, but he himself being eminent lawyer practising in Supreme Court before his political avatar, had said in October 2015: “Judges appointing judges, a system created by the Supreme Court in 1993, was akin to the Gymkhana Club deciding on new members.”
Elaborating, the Outlook cover article said: “The National Lawyers’ Campaign for Judicial Transparency and Reforms (NLC), the association that filed the petition, says that out of the 28 sitting judges of the Supreme Court at present, as many as nine happen to be close relatives of former judges, including a son, a grandson and a nephew of former chief justices of India. Another is the son of a former chief minister, while one is the son of a former advocate-general of a state. As for India’s High Courts, the petition, first filed in the SC by the NLC in 2014-15, claimed that a large representative sample from that period showed that nearly one-third of the HC judges surveyed happened to be related to sitting or former judges and legal luminaries. Their data showed that 88 HC judges out of 300 surveyed across 13 High Courts fell in this category. And if one refines the field to exclude the one-third (roughly 100 out of 300) who are promoted to the bench from the lower courts—a norm followed since the British days—the proportion of kith and kin who are appointed judges directly from the Bar rises to almost half, the NLC petition showed.
Contentions over claims
11 out of 28 sitting SC judges had either judges or legal luminaries as relatives. Here are some specifics on sitting Supreme Court judges-
CJI TS Thakur: Father – late Justice DD Thakur, Judge JK HC;
Justice Dipak Misra: Uncle – Late Justice Ranganath Misra, former CJI;
Justice MB Lokur: Father – former Judge of Allahabad HC;
Justice PC Ghose: Father – Late Justice SC Ghose, former CJ, Calcutta HC;
Justice SA Bobde: Father – former AG of Maharashtra Arvind Bobde;
Justice SK Singh: Father – Late Justice SP Singh, Patna HC, Maternal grandfather – Late Justice BP Sinha, sixth CJI;
Justice S Mishra: Father – Late Justice HG Mishra, former judge, Allahabad HC;
Justice RF Nariman: Father – Noted jurist Fali S. Nariman, senior advocate;
Justice UU Lalit: Father – Justice UR Lalit, former additional judge, Delhi HC;
Justice A Roy: Father – Late AB Roy, Senior Advocate;
Justice DY Chandrachud: Father – Late Justice YV Chandrachud, former CJI.
The above contentions and facts lead one to assume that however brilliant one is, if his father and uncle held an eminent post in the Supreme Court or the High Courts, they should not be eligible to aspire/ be selected for posts in the higher judiciary. This looks unjust and there are defences for sons and nephews of high judicial officers holding such offices. Former Solicitor General of India, Gopal Subramanian, who was also considered and rejected for Supreme Court judgeship says, “In my analysis, any relationship with a former judge’s family has had little bearing on a judge’s elevation. In the current SC roster, except for incidental relationships with former judges, they are mostly self-made. This just doesn’t work at the Supreme Court (level). The present CJI’s father resigned as an additional judge, that too of a High Court. Justice Shiva Kirti Singh was AAG of Bihar and a popular lawyer. His father, Justice Shambhu Prasad Singh, had absolutely no role to play in his elevation. When Justice Har Govind Mishra died, Arun Mishra was only a university student; he struggled his way up with sheer hard work and scholarship.”
“Justice U.R. Lalit was rebuffed during the Emergency and his appointment as an additional judge was never confirmed, so he started his practice as a Supreme Court lawyer. Uday U. Lalit was a mere boy at the time and rose up purely on merit. He was appointed directly to the SC. Justice Amitava Roy is again a self-made man and would have been elevated much earlier, except for the fact that he does not do politics. Nobody would even connect him with his father-in-law Salil Kumar Datta unless they studied judicial history minutely. Justice D Y Chandrachud is a self-made man with no influence from his father.”
On the borderline, Justice (Retd.) SS Sodhi, former Chief Justice of Allahabad High Court says, “Kinship, however, cannot be automatically held against anyone.They can well be deserving candidates”
“But there are instances where by virtue of being related to former judges, they get special consideration even when they don’t deserve it. It’s unfortunate, but it does happen. Once there is transparency, such aberrations will be rarer.” he said.
On non-transparency of the collegium functioning, one former SC judge, part of the selection body, is anonymously quoted in the Outlook article as saying, “Collegium meetings did not last long; nor was there much deliberation. One or two judges would just say: ‘I know the person. He is not fit to be elevated.’ That would be the end of the discussion, with others keeping their own counsel”.
Recent Developments
The Supreme Court on September 20 dismissed a plea by a lawyers’ group, National Lawyers Campaign for Judicial Transparency and Reforms, for setting up a “public transparent body” controlled by neither the government nor the judiciary for the appointment of judges for the Supreme Court and High Courts.
Let us end this weighty subject on a lighter note:
The hungry judges soon the sentence sign,
And wretches hang that jurymen may dine.
- Alexander Pope, English poet (1688-1744) in Rape of the Lock.