Supreme Court Judges Were Not Appointed On Merit: Ex Supreme Court Judge

Justice Markandey Katju, the retired judge of the Supreme Court, has made the shocking allegation that some judges of the Supreme Court were not appointed on merit but on extraneous considerations such as caste, nepotism etc. He has given specific instances of such alleged appointments. The learned former judge has also claimed that though he went to Justice S. H. Kapadia (not Chief Justice at that time) to object against the elevation of Justice Dinakaran of the Karnataka High Court to the Supreme Court on the ground that there were serious allegations about him, the concerns were disregarded by the Collegium and Justice Dinakaran’s name was cleared (though the appointment was later stalled owing to impeachment proceedings in Parliament).

Justice Katju has suggested that like in the USA, the interview and appointment of Judges should be televised so to prevent any skulduggery. This will ensure transparency and avoid undeserving candidates occupying high judicial positions, he says.

It may be recalled that the Supreme Court is presently hearing suggestions from the public on how to improve the collegium system of appointment of judges. The suggestions offered by Justice Katju require to be considered as well.

Text of article written by Justice Katju titled One Way to Fix the Collegium is to Televise its Proceedings

The hearing has begun before the Supreme Court on the question about reforming the Collegium system of appointment of judges. It is almost unanimously agreed that the collegium system lacks transparency, accountability and objectivity because of the secrecy, opaqueness and nepotism it involves, and is in need of glasnost and perestroika – as Justice Kurian Joseph said in his concurring judgment invalidating the National Judicial Appointments Commission (NJAC).

In paragraph 106 of his dissenting judgment in the NJAC case, Justice Chelameshwar said:

“As Bentham has observed, ‘In the darkness of secrecy sinister interest, and evil in every shape, have full swing..’

Transparency is an aspect of rationality. The need for transparency is more in the case of the appointment process. Proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks. Ruma Pal , J. is on record – “Consensus within the collegium is sometimes resolved through a trade-off, resulting in dubious appointments with disastrous consequences for the litigants and the credibility of the judicial system. Besides, institutional independence has also been compromised by growing sycophancy and ‘lobbying’ within the system.”

Justice Kurian Joseph, agreeing with the above observations, said:

“I agree with Chelameswar, J. that the present collegium system lacks transparency, accountability and objectivity. The trust deficit has affected the credibility of the collegium system, as sometimes observed by the civic society. Quite often, very serious allegations and many a time not unfounded too, have been raised that its approach has been highly subjective. Deserving persons have been ignored wholly for subjective reasons, social and other national realities were overlooked, certain appointments were purposely delayed so as either to benefit vested choices or to deny such benefits to the less patronised, selection of patronised or favoured persons were made in blatant violation of the guidelines resulting in unmerited, if not, bad appointments.

“The dictatorial attitude of the collegium seriously affecting the self-respect and dignity, if not, independence of judges, the court, particularly the Supreme Court, often being styled as the court of the collegium, the looking forward syndrome affecting impartial assessment, etc., have been some of the other allegations in the air for quite some time. These allegations certainly call for a deep introspection as to whether the institutional trusteeship has kept upto the expectations of the framers of the Constitution.”

As reported in the press, Fali Nariman, the doyen of the Indian bar, said, “In Dinakaran’s case, I must say something. Very eminent people from Chennai wanted to say something about Dinakaran to the then CJI ( K.G. Balakrishnan ). Neither the CJI nor any of the members of the collegium agreed to meet them.. We were all hounded out. ”

Ad hoc, and prone to abuse

In this connection I may mention something in my personal knowledge.

When I came to know that the collegium was considering Dinakaran for elevation to the Supreme Court, I went to the chamber of Justice Kapadia, who was then a member of the collegium during a lunch interval and told him in great detail that when I was Chief Justice of Madras High Court, there were very serious allegations against Dinakaran (about alleged land grabs, etc ). I told Justice Kapadia that he was a member of the collegium while I was not, but that I had a duty to inform him about the facts, and now it was up to him to do what he wanted.

Despite my informing Kapadia, the collegium, headed by K.G. Balakrishnan went ahead and recommended Dinakaran for elevation to the Supreme Court, and it was just in the nick of time that the appointment was stalled because of the massive documentary evidence against Dinakaran produced by the Tamil Nadu lawyers, and impeachment proceedings against him by Parliament later.

Later, I reminded Kapadia that I had informed him of all the facts and said that if he had informed the collegium of what I had told him (which evidently he did not) the Supreme Court could have avoided the embarrassment the matter caused. Kapadia admitted that I had indeed informed him, but he could not do anything about it since the CJI (Balakrishnan) was pushing for Dinakaran’s elevation. But surely Kapadia could have informed the collegium of what I told him, and could have asked the collegium to invite me to present my views, which he evidently did not.

I may mention about another undeserving appointment made to the Supreme Court on the recommendation of the collegium. There was a judge originally from Kerala. He was transferred to four high courts, and everywhere he would hardly work, and left about 300-400 judgments undelivered in each place at the time of his transfer. When there was a move to bring him to the Supreme Court, a retired Supreme Court judge, also from Kerala, telephoned the then CJI Balakrishnan and asked why such an undeserving judge was being elevated. Justice Balakrishnan replied that there was no judge from his ‘community’ in the Supreme Court, and so one had to be appointed. Was this a valid reason for such appointment? And why did the other members of the collegium not object?

Even in the Supreme Court he hardly worked, and left many undelivered judgments on his retirement.

There was a further matter that I am privy to. A very senior judge in the Supreme Court, who later became CJI, wanted to get his sibling appointed judge of the Calcutta High Court. He reportedly told the Chief Justice of the Calcutta High Court to recommend the sibling’s name, although the person was then almost 60 years of age (a high court judge retires at 62) and had hardly any practice. This was strongly objected to in writing by the judge next in seniority to the Chief Justice of the High Court, a judge known to be upright and learned. This so annoyed the Supreme Court judge that he never allowed the Calcutta high court judge to come to the Supreme Court. Consequently, the conscientious judge retired as a chief justice of a high court, while the Chief Justice of Calcutta High Court was duly rewarded for recommending the name of the sibling of the Supreme Court judge by himself being elevated to the Supreme Court.

I can mention several other instances of recommendations of undeserving persons made by the collegium, most of whom were subsequently appointed, causing great harm to the judiciary.

My opinion is that to ensure transparency, accountability and objectivity, meetings and discussions in the collegium should be video recorded, archived and televised. After all, the people are supreme in a democracy, and the people have a right to know what transpires in the collegium meetings, because ultimately it is they who would be affected if a wrong appointment is made.

In the United States, persons being considered for elevation to the US Supreme Court have to appear before the Senate, where they are questioned by the members not only about their judicial views and performance but also about their personal life, and these proceedings are televised. In my opinion, the persons being considered should be asked to appear before the collegium, and questioned by its members in televised proceedings, so that there is public transparency both about what the collegium is looking for in a judge and what the judge herself or himself has to offer.


10 comments on “Supreme Court Judges Were Not Appointed On Merit: Ex Supreme Court Judge
  1. I know for certain it would be easy for the collegium to tell where they need to improve, and that statement might help them to get easy appreciation by public; and they would promptly respond as it is very hard for them to say anything meaningfully, for this is the first time such a nice effort is put up.

    problem is every wing of government or parliament has some kind of vested interest or the other that way things blur.

    Since we call Supreme court of india means it is Supreme like an Oligarchy but it is to be the most transparent body to be, so that it needs public support rather than any government set or parliament, i think.

    try it collegium friends.

  2. Reading above all comments and Hon Mr. Justice Katju’s views, I agree with H.G.Wells, statement, ‘Human history is the essence a history of ideas’.

    Like in Economic development, every thing gets corrupted initially for some decades like production of inflation(s) and deflation(s) being the human history as also that leads to history of human ideas, that only goes on marching for some improvements over time.

    Hon Lord C J Edward Coke in his capacity as chief justice questioned King James I of England in a most polite way on 13, 1608, when King James said , ‘all the judges of England and Barons of the Exchequer’are his delegates, since so too judges, he could take take any case he chose, remove it from the jurisdiction of the courts, and decide it in his Royal person, as he saw judges are ‘his own shadows and ministers….and the King may , if he pleases, sit and judge in Westminster Hall in any court there and call their judgments in question’.

    Justice Lord Coke , ‘To which, it was answered by me (Edward Coke), in the presence, and with the consent of all Judges….that the King in his own person cannot (repeat cannot) adjudge any case…but this ought to be determined and adjudged in some court of Justice, according to the law and custom of England’.

    To this, James made the shrewd reply, ‘ that he thought the law was founded upon reason, and that he and others had reason as well as the Judges’. This is like NJAC Act propounded.

    Like Lord Edward Coke and other judges, the Hon SC by its constitutional bench responded to the parliament act proposal , indeed made by a constitutional amendment – God knows which Article of the constitution of India granted, but for misreading of the power granted under Art 366- amendment of the Constitution that way that right is like Divine right of the Monarch in King James.

    That way,questions and counters happened in the Apex court.

    Let us see how hon Lord Coke delivered his ‘celebrated ‘ answer… ‘that true it was, that God had endowed His Majesty with excellent (science of) sense, and great endowments of nature; but Majesty was not learned in the Laws of his realm of England, and causes which concern life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by Natural Reason (like Indian Parliamentary reasoning: Mondal commission reasons); but by the Artificial Reason and judgement of Law, which law is an act which requires long study any experience, before that a man can attain to the cognizance of it; that the law was the Golden met-wand and measure to try the causes of the subjects’.(citation:’Prohibitions del Roy, 12 Co.Rep, at 65′)

    It is indeed hardly surprising that the King was , in Coke’s description,, ‘greatly offended’ (like the Indian parliamentarians – new generation Kings!),

    ‘This means’, said James, ‘that I shall be under the law, which it is treason to affirm’.

    ‘To which’, replied Coke , ‘I said, that ‘Bracton saith, ‘Quod Rex non debet esse sub homine, sedsub Deo et lege'( that King should not be under
    Man but under God and Law)’

    Needless to say, the King’s anger only increased. According to one onlooker (then), in fact, “His Majestic fell fell into the high indignation as the like (of which) was never knowne in him, looking and speaking fiercely with ended fist, offering to strike,etc (Holdsworth, op cit. supra a note 3, at 428′)

    Indeed, King’s indignation was well justified.

    Coke’s articulation of the Supremacy of Law was utterly inconsistent with ‘royal pretensions'(like Parliamentary prerogatives of today another set of pretensions) to ‘absolute authority’.

    In the altercation, between Coke and King, there is personified the ‘basic conflict’ between ‘power and law’ which underlies all ‘political history’.

    In Dr.Bonham’s case ( in the same note 3 cited above)..’Nor did Coke stop with affirming that even King was not above the law.)

    In the similar strains, Coke, (perhaps the most famous case in the 16th century) decided the Dr. Bonham case – Coke seized the occasion to declare ‘ the law was above the parliament’ as well as above the King.
    Thus Coke established the Maxim, ‘No man may be judge in his own cause.’ That even today every where followed.

    Here in Dinakaran’s case ten CJI K G Balakrishnan took the cue that ‘ in his community Justice Mr.Dinakaran was the only one candidate available…could you blame CJI KGB, no just because ‘all these kinds of mess was or is created by the very Indian parliament every one of you knows.

    Where from Merit? my dear friends.

    Again that parliamentary mess made every other kind of mess, nepotism, and the like as every where started right from parliament cancer spread is the undeniable fact…as parliamentarians ‘now every parliamentarian on is a ‘judge in his own cause’ while the Maxim is otherwise.

    Coke was a most eminent judge of England.

    Influence of Coke may be seen at all of the key stages of or on the development of the conflict between the colonies and the the mother country -England.

    John Adams wrote, The council chamber {- Council chamber of the Boston (1608) King James summoned all judges at Whitehall Palace – about a century and a half later , after that 1608 incident … ‘The Council chamber} was a respectable hall – an apartment as the House of Commons or the House of Lords in Great Britain…. In the chamber Lieutenant Governor Hutchinson at their head as Chief justice, all arrayed in new, fresh rich robes of scarlet of English broadcloth: in their large cambric bands and immense judicial wigs.’

    It was in this chamber in 1761 James Otis delivered his landmark attack in ‘Lechere’s case(Quincy reports 51(Mass.,1761)..’the best account of the case in 2 Legal papers of John Adams 123 et. seq (Wroth and Zobel eds 1965)

    That is the beginning of opening gun of the American Revolution.

    Otis declared , ‘With great pleasure …as it is in opposition to a kind of power, the exercise of which, in former periods of English history, cost one King his head..and another his throne’….so revelations against absolutism or oligarchy or such efforts…so new collegium need to see itself as transparent as possible so too the indian parliament, if not ? you can judge…sirs …i need not have to say, you have your own say!

  3. Dipakkumar J Shah says:

    Hats off to Justice Markandey Katju for bold review. This can be proved by a recent Judgment given By Justice Mr Jayant Patel and also Former Chief Justice Mr Y R Meena Dismaiisal order was passed by in 2006 and kept pending on record and now also upon implied order of dismissal , settled , passed by Justice Mr Jayant Patel passed order of dismissal in stray. Refer to High Court Gujarat web SPecial Civil Application No 7736 of 2006. Wonderland of Justice and Judiciary.

  4. M . RAVI SHANKAR says:

    I really get confusion as to why justice Katju failed to disclose when he was functioning as sitting judge and what prevented him to call a spade a spade openly. This gives pain to the mind of a citizen. However what he now says has to be considered and the entire system has to be open and televising. Above all, the impeaching system has to simplified for quick action or it has to be cancelled and new system has to be evolved.

  5. K.VASANTKUMAR says:

    It will be within knowledge of many seniors as to elevation to the post of judge whether to that of High Court or Supreme Court happen. But no one opens their mouth. Coming to ex judge’s comment, I think only those who are interested on such sensational news feel elated but many others do not give much credence. The reason could be understood by the Advocates. If what the former judge says is correct why he has not stated this when in the post of judge or when he was in some Government nominated post. The delay in such statement every Advocate would understand its value. Recently he levelled serious charges of corruption on sitting chief and it is every one’s knowledge as to what happened. I am sorry to state that this former judge for quite some time is trying to be in news by making some statement or other which will be sensational.

  6. Rajesh Bhardwaj says:

    Sir,
    I whole heartedly endorse the suggestion of Justice Katju to televise the proceedings of collegium. Injecting some sunlight into the procedure of appointing judges will do a lot of good to the country. On a personal note, I may say that I appeared for interview for two vacancies of members in Competition Appellate Tribunal before Hon. judge of SC and surprisingly one appointment has been made by government but other post is still vacant to best of my knowledge. It is not clear why both vacancies have not been filled up together so that work of the Tribunal does not suffer. It would help if proceedings of ACC like those of collegium can be made more open to public scrutiny.

  7. VN KULKARNI says:

    GET DECLARATION FROM EVERY APPOINTEE THAT HE/SHE IS NOT RELATED TO ANY OF THE SITTING/EX SC JUDGE/OR ANY OTHER ENTITY CLOSELY CONNECTED WITH SC/HIGHER JUDICIARY.

    THERE SHOULD BE BE CLEAR TRANSPARENCY IN APPOINTMENTS AS THE HIGHEST COURT HAS THE POWER TO OVERTURN THE DECISIONS OF THE 542 ELECTED REPRESENTATIVES OF 125 CR INDIANS.

  8. Ashwani Joshi says:

    There should be a secret referendum on the question of appointment of judges to the top posts. Only top lawyers and collegium should take part.

  9. B.M. says:

    It is well informed & state facts from a person who was a party directiy or indirectly. However it talks of appointments in respect of High Court & Supreme Court. Is it not true for appointments for various Tribunals in the country. Committee is headed by a sitting Judge of the Supreme Court.No reasons are given. Example in case of ITAT, for appointing Vice Presidents, or take case of appointments in CAT, e.t.c.All judicial appointments be made tranparently and objectively after giving reasons.

  10. Kamalesh Sanghani says:

    Great analysis and an eye opener.
    Justice Katju has done a great service to the nation by this article. I hope this article is sent to the Collegium seeking views of common people.
    May there by transparency and also ‘tolerance’ shown by the Collegium. Very sad to hear comments from senior members of the cabinet that the collegium is like a club (after reading this article, it appears the Cabinet Minister may, after all be right).
    Televising the process of selecting or putting up all the matters on a website would go a great way in ensuring transparency.

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