Sunday, 24 August 2014

Pick Chief Justice of India on merit, and not seniority


The present Chief Justice of India, Justice Lodha, is retiring on 27th September , 2014, and the question now is who should be appointed his successor ?


For quite some time the convention has been to appoint the seniormost Judge after the Chief Justice as his successor. In my opinion now the time has come to do away with this convention as it is often leading to undesirable results which has caused great harm to the judiciary. The Chief Justice of India is head of the judicial family, and an undeserving appointment can cause great harm which may last for several years.



It may be noted that there is no Constitutional provision or even a statutory rule that the seniormost Judge of the Supreme Court should be appointed as the Chief Justice of India.



In England and in the US there is no such rule or convention. In England the convention was that when the Lord Chancellor, who was the head of the British judiciary ( until the Supreme Court was created recently), resigned or died (there was no retirement age) the attorney general was appointed as the next Lord Chancellor. In fact in India in the early years after the promulgation of the Constitution, when a certain Chief Justice of India retired at the age of 65, the then Union law and home minister, Dr. KN Katju asked the then attorney general, Motilal Setalvad, whether he was willing to take over as the Chief Justice. Setalvad replied that he was ineligible as he had crossed the retirement age of 65 ( see Mr. Setalvad's autobiography 'My Life').


In the US there is no such convention of appointing the seniormost Judge of the US Supreme Court as the Chief Justice. In fact some of the outstanding Chief Justices of the US Supreme Court were not even judges of the US Supreme Court when appointed as its Chief Justice. For instance, Earl Warren was the governor of California when he was appointed Chief Justice of the US Supreme Court, and he proved to be one of the most outstanding chief justices, heading the Court which gave historical judgments e.g. Brown vs. Board of Education (1954). The present Chief Justice of the US Supreme Court was not even a Judge of the Supreme Court when he was elevated directly from the DC Circuit Court in 2005 at the age of 50 years as the Chief Justice of the US Supreme Court, and he is proving to be a great Judge ( see his judgment in the Healthcare case).


Perhaps the convention of appointing the seniormost Supreme Court Judge as the Chief Justice of India was adopted so as to keep away any controversies. However, experience has now shown that this convention has proved to be defective, and often results in grave mistakes.


Shanti Bhushan, former Union law minister, and presently a very senior lawyer of the Supreme Court, in an affidavit filed in the Supreme Court has stated that half of the 16 Chief Justices of India, prior to the filing of this affidavit, had been corrupt. Even subsequent to the filing of this affidavit there have been Chief Justices of India, about whose integrity grave question marks were raised. Their names are well known, and need not be mentioned. A Chief Justice of India who retired recently got his sister elevated to his parent high court although she was almost 60 years old ( the retirement age of high court judges being 62) and was widely regarded as undeserving. The Chief Justice of the high court who recommended her name was rewarded by being elevated shortly thereafter to the Supreme Court, while the Judge next in seniority ( who has the highest standard of integrity) who strongly objected in writing to her appointment as she was undeserving,was punished by being denied elevation to the Supreme Court, while his junior was elevated. This is the price which has often to be paid for honesty !


In my opinion the convention of appointing the seniormost Judge of the Supreme Court as the Chief Justice of India should now be given up for the following reasons :



(1) The seniormost judge may be a person of questionable integrity, or may have done wrong things. I have with me a dossier ( given to me by a senior member of the Committee of Judicial Accountability) of one senior judge of the Supreme Court containing documentary proof of his corruption, and yet he was appointed as Chief Justice of India being the seniormost in the Supreme Court. A copy of this dossier had been sent to the President of India and other high authorities before his appointment as Chief Justice, but no heed was paid to it.



(2) The seniormost judge may be a man of integrity, but may be a mediocre person. He, too, should be superseded, and a judge next in seniority, or one even lower down in seniority, if outstanding ( as borne out from his judgments),should be made Chief Justice of India.



I may mention in this connection that when I was appointed as Chief Justice of Madras high court I contacted Justice Venkatachaliah, former Chief Justice of India, and the father figure in the Indian judiciary, to seek his blessings. He told me that some chief justices think that their main job is administrative, and so they get bogged down in administrative work, and neglect their judicial functions. This, he said, was a total mistake and misunderstanding. The main function of a Chief Justice is to give leadership to the Court on the judicial side, by giving outstanding and landmark judgments.



So if a Judge is mediocre he will be unable to give outstanding and landmark judgments, even if he is a man of integrity. In my opinion such a mediocre Judge should be superseded.



(3) If there is an outstanding Chief Justice of a high court, he can be directly appointed as the Chief Justice of India. In this connection it may be mentioned that when the then Chief Justice of Bombay high court, Justice Chagla, who was known to be outstanding, was sought to be directly appointed as Chief Justice of India when the then Chief Justice of India retired, this move was strongly opposed by the then Supreme Court Judges who threatened to resign en bloc, and hence the move could not fructify ( see Justice Chagla's autobiography 'Roses in December'). In my opinion it was highly improper for Judges to give such threats, and Justice Chagla should have been appointed Chief Justice of India, and the Government of India should not have succumbed to such threats. If the Judges resigned, so be it. They could be replaced by others. No one is indispensable.



I have already given the example of the present Chief Justice of the US Supreme Court, Justice John Roberts, who was a Judge of a Court lower than the US Supreme Court ( the DC Circuit Court) when directly appointed as Chief Justice of the US Supreme Court, and he is proving to be an outstanding Chief Justice, though much younger than his colleagues.



At present I know of some outstanding Chief Justices of High Courts whom I regard as deserving to be appointed directly as Chief Justice of India.



In conclusion I repeat : when the present Chief Justice of India, Justice Lodha retires, the Government of India should not go by seniority but choose the fittest person and appoint him as the Chief Justice of India.

(Published in The Times of India on 24/08/2014 : Link )

21 comments:

  1. How we could accept this statement sir...! It may cause to choose the acquaintance of majority party. why the government or judiciary department (self) they can conduct a quality test.

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  2. It has been proposed by Justice Katju that when the present Chief Justice of India retires, the government of India should not go by seniority but choose the fittest person as the Chief Justice of India. The parameters for assessing fitness have been stated to be integrity and efficiency (giving outstanding and landmark judgements). Justice Katju has taken USA and UK as examples and averred that this system is working well there. As a principle, it sounds good. But, this works only in ideal situation. Is India mature and ready for such an excellent idea? Let us examine. Our society cannot be compared with that of USA and UK as they are highly developed and egalitarian societies. On the contrary, ours is not an egalitarian society and most Indians genuinely do not believe in equality. Discrimination/oppression on the basis of caste, gender and religion is still prevalent in India. Justice Katju is aware of this fact. Please refer to his blog dated 17/8/2014 "How to be true Indians", in this regard. In such a scenario, while assessing integrity and efficiency, there is high possibility of subjectivity. This may lead to cronyism as well. Therefore, before implementing this idea, we must find out solutions and adequate safeguards to avoid such subjectivity. Changing the present system, without streamlining the new system and strengthening the processes, is fraught with danger.

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    1. Very fair review. I do want to remind you that don't we have dangers in present approach. During the past 10 years judiciary is seriously damaged because CJI is changed every few months. Most of them were proved to be costly for nation. Any new danger you envisage is just overreacting.

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  3. This comment has been removed by a blog administrator.

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  4. This is long overdue for india. Few here are still not convinced even after your lengthy and substantial explanation.I completely agree. I do want to see their term is expanded to 9-10 years. Idea killers always line up to oppose any and every idea since they grew up in a blinded nation. But wisdom in Modi government should see great benefits to nation and simply embrace your suggestion in totality. They have mandate too. Elevate meritful judge from lower too, if needed. The nation reached a tilting and boiling point. If I see with wisdom, a kindergarten admission could not be settled in any democratic forum, except the supreme court. Few corroded minds wants UPSC exams stopped. Why india could not settle every little issues at lower courts firmly. I see thousands of cases reach supreme court every week. US supreme court, for example, reviews only 70 or so cases every year. In fact in most cases even appeals are not done. Because the trial courts do fantastic jobs US, that even some High court judges of India cannot match performance. Appeal courts seldom reverse judgements of lower courts in US. Unless india embraced many new innovations in judiciary, india will end up hopeless nation, many already believe that and do not bring in FDI.

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  5. Change we must. But only after strengthening the processes. Lest same problems we are facing in the present system would revisit. We should not ape west blindly.

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  6. Is India prepared for such a progressive thought? Experts in the field should debate and decide. In telugu there is a proverb " Annaprasa roje avakaya" meaning giving avakaya pickle to an infant on the day of weaning.

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  7. My experience. Anonymous people are gone from mr.Kathie blog now. I was a bit ruthless on them, because they were nuisances and noises. Same way, india also needs a mix democratic and dictatorial governing to get out of current impasse India has entered into. Share your thoughts.

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  8. What are going to be criteria to pick “MERIT-Chief JUDGE”…Who is going to pick? Does it going to be Executives or Parliamentarians or both together....or will it be an Ultra-UPSC….OMG what will happen to the Independence of Judiciary? If MERIT CRITERIA is followed at threshold while appointing Judges; be it for Supreme Court, High Court or even Munsif Courts, the question of picking meritorious CJI will not arise.

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  9. I am wondering why many are confused about meritful candidate. Is it because the reservation which had choked nation's progress far too long and permanently damaged thought process of young indians? I am a school product of 1970s, great teachers I had.

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  10. At least in your profession you should give a complete solution. Just saying that CJI should be selected on merit basis is not correct. There are so many people in your profession who would not agree on single person since its subjective. Also the integrity and honesty of person is subjective as there are many retire judges who claim to be honest but for them their job is more important than disclosing scams in their profession and wakes up after 10 years to shows their honesty?

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    1. Democracy's core provisions of letting human being live free itself is subjective for Dictators! Democracy thrives exactly on the Subjective is transformed into objective throuth the means of Debates and Discussions in Parliaments, Senate, Cabinets, Commissions, Committees, Judiciary, Arbitrations..etc!. People like you who do not even open a discussion and want to shut the idea, are the reasons behind the politicians been looting the nation for too long time. No wonder why Storming of Bastille will never happen in India.

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    2. I wonder how much low a person like you can go to form negative image of India to please america where you work and you have objection if someone calls you american Dog?

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  11. Please refer to Shri Gopal Sankarnarayanan's rejoinder to article by Justice Markandey Katju “Pick CJI on merit, and not seniority” (August,25,2014). Shri Gopal Sankarnarayanan is a senior advocate of Supreme Court. It is a wonderfully well written, well researched and insightful article. In the present system, High Court judge is elevated as Supreme Court judge by the collegiums. The problems in the present system of appointing judges of doubtful integrity or mediocrity can be corrected by strengthening the present system of elevation of High Court judge as Supreme Court judge. The concerns raised by Justice Katju can be addressed by elevating only the fittest judges in terms of integrity and efficiency (giving outstanding and landmark judgements). It may be noted that few decades back, system of supersession (similar to what Justice Katju is recommending) was in-vogue in various government departments. It lead to, inter-alia, cronyism, yes-boss culture, servility and aversion to taking bold decisions and ultimately was scrapped. It is said, "If it isn't broken, don't fix it". The present system is not broken fully and hence, over-hauling is not necessary. In conclusion, Justice Katju's idea of promoting excellence in judiciary is appreciable and can be achieved by strengthening the processes of present system. There is no need to try a failed concept.

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  12. Those who are following this blog of Justice Katju might have noticed that earlier there used to be abusive comments. Is the blog discontinued because of such comments? Blog manager has solved the problem by just removing such comments. Just by strengthening the present system, problem is solved.

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    1. This is irony of India's constitutional inefficiency, ambiguousness. South Sudan put up new constitution matching US constitution. In US no single person can take ownership of party. And there is no party highcommand nomination process in any election. Talented have freedom to contest any election. India's party high command taking ownership of party needs review and amendment.

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  13. merit judges in the SC sounds a meritorious idea though it is difficult to execute. Any thing will have some difficulty but once we agree in principle on merit appointment, other issues could be resolved.

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    1. I split the retrogression of Post 1947 India into to 3 periods. 1. Nehruvian Time. Best times of India given the nature of the nation at that time. 2. Before Emergency time. Kind of good time....things started falling apart in the political system. ..3. Post-Emergency period. This is the bad time of India and getting worse election after elections.
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      What an irony that India could not even agree to Meritorious Idea for CJI? This is scientifically and theoretically possible only if 50% or more of people of India are Evils!. I quote 49% FDI rule, 51% of india will get control of the company back if a War is declared on India!!? This is the assumption, reality and wisdom behind why 49% only for FDI, right?

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  14. You are absolutely right Mr Anurag.

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