Mu­si­cal Chairs In Supreme Court

Time to re­place seniority con­ven­tion with an al­ter­nate, clearly ar­tic­u­lated method of ap­point­ments

The Times of India (Mumbai edition) - - AN EPIPHANY OF IDEAS - Arghya Sen­gupta

A cu­ri­ous spec­ta­cle un­folds in the court­rooms of the Supreme Court when­ever a se­nior mem­ber of the Bar walks in. Since chairs are scarce, one might imag­ine the se­nior mem­ber wait­ing his turn or be­ing of­fered a seat by a rel­a­tively ju­nior mem­ber. Though both of these pos­si­bil­i­ties do man­i­fest them­selves some­times, quite of­ten an amus­ing se­quence of events en­sues as the se­nior oc­cu­pies his right­ful place in the front row of the court­room.

This causes oth­ers on the row shift­ing one seat in or­der of seniority to ac­com­mo­date the new en­trant. This pat­tern of adult mu­si­cal chairs re­peats it­self if an­other even more se­nior mem­ber walks in. While one might dis­miss such a harm­less prac­tice as yet-an­other ar­cane court­room con­ven­tion, it is symp­to­matic of the per­va­sive in­flu­ence of seniority over ev­ery con­ceiv­able as­pect of the le­gal pro­fes­sion.

From seat avail­abil­ity of lawyers to the choice of bun­ga­lows for judges, the right to ar­gue first in court to who gets ap­pointed Chief Jus­tice of In­dia, seniority ap­plies to mun­dane and sig­nif­i­cant matters in equal mea­sure. So when the col­legium of the Supreme Court rec­om­mended Jus­tice San­jiv Khanna, the third-most se­nior sit­ting judge of the Delhi high court (fifth, if Delhi high court judges serv­ing as chief jus­tices in other courts are in­cluded) and Jus­tice Di­nesh Ma­hesh­wari (whose ju­nior from the Ra­jasthan high court, Jus­tice Ajay Ras­togi is al­ready a judge of the Supreme Court) it was sub­ject to se­vere op­pro­brium.

In the case of Jus­tice Khanna, not only was seniority breached but also Jus­tices Mit­tal, Nan­dra­jog, Menon and Bhat, all fine judges in their own right, were over­looked. Jus­tice Ma­hesh­wari’s case was more far-reaching in its im­pact – by rec­om­mend­ing him to the Supreme Court af­ter a judge ju­nior to him had been ap­pointed, the sanc­tity of the very prin­ci­ple of seniority was ques­tioned.

This as­sault on seniority is not without prece­dent. In sev­eral in­stances, ju­nior judges in high courts have been ap­pointed to the Supreme Court over their se­nior brethren. In fact, two present judges in the Supreme Court – Jus­tices Shan­tanagoudar and Nazeer – were not the se­nior­most judges of the Kar­nataka high court when they were ap­pointed to the Supreme Court.

How­ever what makes this par­tic­u­lar in­stance stand out is how ev­ery­one in­volved in the process looks the worse for it. The col­legium headed by Chief Jus­tice Go­goi looks bad for not of­fer­ing rea­sons for their de­ci­sion. Such rea­sons were crit­i­cal to its pop­u­lar and le­gal va­lid­ity. The Sec­ond Judges’ Case re­quires rea­sons if seniority is de­parted from; equally im­por­tantly, hav­ing seem­ingly found two other more se­nior judges suit­able for the Supreme Court a month pre­vi­ously, an un­ex­plained rec­om­men­da­tion of two dis­tinct names lent it­self to hearsay of the worst kind.

Chief Jus­tice Go­goi’s par­tic­i­pa­tion at the press con­fer­ence last year sug­gested a new dawn of trans­parency and ac­count­abil­ity in ju­di­cial func­tion­ing. One year on, in the ab­sence of pub­licly dis­closed rea­sons in

The rep­u­ta­tional dam­age that such opaque de­ci­sion-mak­ing causes to other­wise up­right col­legium judges, com­pe­tent prospec­tive ap­pointees and the in­sti­tu­tion of the ju­di­ciary is im­mense. It is also en­tirely avoid­able

con­tro­ver­sial col­legium rec­om­men­da­tions, lit­tle seems to have changed.

The judges who ac­cepted such ap­point­ments look bad for two dis­tinct rea­sons. When in the past, Jus­tice UL Bhat of the Ker­ala high court was passed over for the Supreme Court in favour of his ju­nior col­league Jus­tice KS Paripoor­nan from the same court, he claimed to have re­fused his con­sent to a later ap­point­ment to the Supreme Court. In the same sit­u­a­tion, Jus­tice Ma­hesh­wari seems to have for­saken such in­sti­tu­tional con­ven­tion.

Jus­tice San­jiv Khanna’s el­e­va­tion presents a more poignant case. His un­cle, the hal­lowed Jus­tice HR Khanna, brave dis­senter dur­ing the Emer­gency, re­signed from his of­fice when he was su­per­seded in favour of Jus­tice Beg by Indira Gandhi. His nephew, now in Jus­tice Beg’s shoes, jumped the queue. In­sti­tu­tional in­tegrity and per­sonal mem­ory ap­pears to have counted for lit­tle.

Fi­nally the gov­ern­ment looks self­serv­ing hav­ing re­cently kicked up a storm about seniority not be­ing ad­hered to in the ap­point­ment of Jus­tice KM Joseph. The alacrity with which Jus­tices Khanna and Ma­hesh­wari were ap­pointed without the faintest ob­jec­tion be­ing raised on sim­i­lar grounds re­veals the truth about seniority – it is a wolf of favouritism in sheep’s cloth­ing of con­ven­tion.

Taken to­gether, this episode points to a fun­da­men­tal dis­junct in matters per­tain­ing to the Supreme Court. We have an un­stated ex­pec­ta­tion that vin­tage con­ven­tions from a more gen­teel time will pre­vail in the court, iso­lated, as it is, from the hurly-burly of politics. But in fact, the writ­ing has been on the wall from the time of the NJAC judg­ment – ju­di­cial ap­point­ments are no longer about con­ven­tion, they are pri­mar­ily about power.

This is pre­cisely why seniority, time and again, is cast aside, without ar­tic­u­lat­ing a clear al­ter­nate prin­ci­ple of merit or an op­ti­mally trans­par­ent process of se­lec­tion. The rep­u­ta­tional dam­age that such opaque de­ci­sion-mak­ing causes to other­wise up­right col­legium judges, com­pe­tent prospec­tive ap­pointees and the in­sti­tu­tion of the ju­di­ciary is im­mense. It is also en­tirely avoid­able.

There are enough good rea­sons for the seniority con­ven­tion to be given a de­cent burial. It isn’t as ob­jec­tive it pre­tends to be, leads to ab­surdly short tenures for chief jus­tices and is a strate­gic de­vice wielded when con­ve­nient. But for that we need an al­ter­nate, clearly ar­tic­u­lated method of ap­point­ment to take its place. Without that, all ap­point­ments, no mat­ter how well-in­ten­tioned, will ap­pear like skul­dug­gery. Just as it would, if se­nior mem­bers of the Bar sud­denly found no empty chairs to sit on in court and were left won­der­ing why.

The writer is Re­search Di­rec­tor, Vidhi Cen­tre for Le­gal Pol­icy. Views are per­sonal

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