Modi is only the latest, not the first PM to want to control India’s judiciary
The Caravan Magazine
Narendra Modi’s Arrival in the prime minister’s office in 2014 heralded tense days for the Indian judiciary. The Bharatiya Janata Party’s manifesto had pledged to “set up a National Judicial Commission for the appointment of judges in higher judiciary.” Within months of the party taking power, both houses of parliament passed the ninety-ninth amendment to the Constitution, to create the National Judicial Appointments Commission. By the end of the year, it was ratified by 16 state legislatures, signed by the president and enshrined in law.
The NJAC, as envisioned, was to have six members, entrusted with control over appointments to the Supreme Court as well as appointments and transfers in all high courts. Led by the Chief Justice of India, it was to include the second and third most senior judges of the Supreme Court, the law minister, and two “eminent persons” nominated by a panel of the chief justice, the prime minister and the leader of the opposition. One of these persons was to either be a woman, or belong to a religious minority, scheduled caste or scheduled tribe.
The new body proposed to supplant the collegium system, which has fulfilled the same purpose since 1993. The collegium, too, is headed by the CJI, but its remaining membership is confined to their four most senior colleagues; there is no representation from outside the Supreme Court. It forwards the names of recommended appointees to the law ministry, which may, via the Intelligence Bureau, scrutinise their backgrounds. Barring any objections from the ministry, the candidates are then appointed to the court by the president. If the ministry wishes, it can send back, with its stated reasons, the names of any candidates it would like the collegium to reconsider. Should the collegium still stand by a candidate and reiterate its recommendation, the president must, despite the government’s reservations, issue their warrant of appointment. (Each high court has its own collegium, comprised of its chief justice and their two most senior colleagues. These nominate candidate judges for their respective courts, whose files must then be cleared by the Supreme Court collegium before they can be appointed.)
The NJAC hoped to give the executive branch of government a direct say in shortlisting candidates for the higher judiciary and, in optimistic eyes, could even have led to some transparency. BR Ambedkar, the main architect of the Constitution, would have preferred this over the judges-only collegium, as he had made clear before his fellow members of the Constituent Assembly. The document the assembly ratified, in 1949, did not leave higher judicial appointments to either the judges or the government alone; it hoped that both would work in tandem to find the most suitable nominees. But that hope was dashed in the 1970s.
“Indira was the worst,” a senior advocate of the Supreme Court told me recently. It is not far-fetched to imagine India’s entire legal community singing that line in unison. Indira Gandhi’s decision as prime minister to install AN Ray as the CJI in 1973—superseding the Supreme Court’s three most senior judges at the time—violated the convention of promotion by seniority that the judiciary has held dear for its entire history. The move was seen as retribution for the superseded trio’s positions in the Kesavananda Bharati case. In it, the Supreme Court, by a narrow majority of a 13-judge bench, had ruled that parliament could not pass any laws that violated the “basic structure” of the Constitution; and affirmed, for the first time, the court’s right to strike down any laws that did. Gandhi had not taken kindly to this curtailment of the government’s power.
The pernicious fruit of what Gandhi sowed arrived, most famously, with the Habeas Corpus Case, which followed her declaration of the Emergency, in 1975. Faced with the government’s use of emergency powers to detain its critics without trial, a five-judge bench headed by Ray waved away citizens’ right to appeal their detention before a court of law. Only a single judge dared to dissent.
After the Emergency, the judiciary faced the job of restoring its fallen image. Its response, always invoking the extremes of the Emergency for justification, was the consolidation of the doctrine of judicial primacy—part of which now means that judges must be pre-eminent in the appointment process. This presumed that, if left to itself, the judiciary would automatically produce competent and independent courts; never mind that, even as the abstract doctrine was made reality, comparatively minor but still relentless instances of executive influence over the courts carried on. Step by step, India’s top judges arrogated to themselves more and more of the authority to select and promote their own.
The prospect of the NJAC resurrected old fears. There was some reassurance, though, in the fact that the Supreme Court of 2015 was not the Supreme Court of 1975. The government, theoretically at least, had had no say over the court’s composition for over two decades. And the power of the judiciary had grown such over this period—through the use of its powers established in the Kesavananda Bharati case, through the rise of public-interest litigation and more—that at the beginning of this decade jurists worried about the courts’ interference in the domain of the executive, not the other way around. This time, some hoped, the court would be more resilient.
Then again, the judiciary created by the collegium system had not yet faced an executive of comparable power to that under Modi. The BJP had just secured the first single-party majority in a general election since 1984, when Indira Gandhi’s son had inherited the Congress at its height following her assassination. Modi himself was an unabashed strongman. After the anti-Muslim pogroms in Gujarat, which came during Modi’s tenure as the state’s chief minister, the Supreme Court itself had classed him among “modern-day Neros looking elsewhere when innocent children and helpless women were burning.”
To add to the disquiet, the Rashtriya Swayamsevak Sangh, the BJP’s parent body, had long wanted to inject the judiciary with its Hindutva ideology. A draft proposal for restructuring the Indian government that was circulated at a 1998 conference of the Akhil Bharatiya Vidyarthi Parishad, the student wing of the RSS, proposed the creation of a “guru sabha” comprising sadhus and sanyasis. Among other functions, this body would act as a judicial commission, with the power to nominate and impeach judges of the Supreme Court. This was reported in 2000 by Subramanian Swamy, now a member of the BJP, in a magazine article titled “The RSS game plan.”
That proposal might have seemed fanciful, but Hindutva’s seep into the judiciary was already all too real. Take, for example, the appointment of AK Goel as a judge of the Punjab and Haryana High Court, in 2001. A couple of years after the fact, it was reported that the Intelligence Bureau’s background check on Goel had noted that he was the general secretary of the All India Adhivakta Parishad, the lawyers’ wing of the RSS. Under a field titled “Reputation/Integrity,” the report had noted, “Corrupt person.” The law ministry, then headed by the BJP’s Arun Jaitley, approved Goel’s nomination anyway.
The president, KR Narayanan, refused to sign Goel’s warrant of appointment, and sent his file back to the ministry. Instead of then returning the file to the collegium, Jaitley defended Goel’s nomination himself, and dismissed the IB’s findings as a “slur.” Goel’s file was sent to the president again, this time with the signature of the prime minister, Atal Bihari Vajpayee, attached. Narayanan, now that Goel’s file had come before him a second time, reluctantly signed the warrant of appointment. “I feel that a more desirable course of action would have been to follow the same procedure … where the advice of the Chief Justice, which is integral to the selection process, was sought again and duly received,” Narayanan wrote to the ministry. “I would also appreciate if my instant observations are shared with the Chief Justice of India along with my earlier observation.”
Goel went on to serve as the chief justice of two high courts. Shortly after Modi became the prime minister, Goel was appointed to the Supreme Court. Last year, just before he retired, he headed a bench that diluted the provisions of the Scheduled Castes and Tribes (Prevention of Atrocities) Act, a long-standing irritant in Hindutva eyes.
Goel was elevated to the Supreme Court alongside Arun Mishra. Earlier, the collegium had thrice considered and decided against Mishra’s nomination; on one of these occasions, it had asked for a background check on him. According to an article in the Economic and Political Weekly, the check revealed that Mishra was close to the RSS. Any prior reservations were evidently put aside with the advent of the Modi government.
At the same time that Goel and Mishra were elevated, the Modi government had blocked the appointment to the Supreme Court of Gopal Subramanium, a former solicitor general. In a letter to the collegium, Subramanium wrote that the snub was retribution for his involvement in the trial of Amit Shah, Modi’s top lieutenant, for Shah’s alleged role in the extrajudicial killing of Sohrabuddin Sheikh by security forces in Gujarat in 2005, when Modi ruled the state. Subramanium withdrew his name from consideration.
The sense of foreboding evaporated in October 2015. After considering the ninety-ninth amendment, the Supreme Court ruled that, by creating the NJAC, it violated judicial independence, an accepted basic feature of the Constitution. The amendment was hence struck down as unconstitutional. The day after the judgement, the front page of the Indian Express read, “Court supreme: Supreme Court.”
At half past ten on 20 April 2019, Bhagwan Das Road was deserted. Absent was the usual morning rush of autos and cars, the stream of harried lawyers in black and white, the queue at the security check inside Gate C of the Supreme Court. The left flank of the main block was being watered down with a hose. The resulting shower would have sprayed anyone walking towards the courtrooms, but no one was. It was a Saturday, and the court was supposed to be shut.
News had broken about an hour earlier that the serving CJI, Ranjan Gogoi, had been accused of sexual harassment by a former employee of the Supreme Court. The previous day, the former employee had sent an affidavit to sitting judges of the court, bar Gogoi, detailing her charges. She had been fired from the Supreme Court, she wrote, and she and her family had been persecuted by the police, because she had resisted “the unwanted sexual advances of the CJI.”
By around 10 am, the Supreme Court released a notice to say that Gogoi had constituted a “special bench” for a “special sitting” to “deal with a matter of great public importance touching upon the independence of judiciary.” The bench consisted of Gogoi himself, along with the justices Arun Mishra and Sanjiv Khanna. The matter had been brought before the court by Tushar Mehta, the solicitor general—though it was not clear how, since the court had not been in session.
I ran under the shower from the water hose, up the stairs to the court and across the concourse towards the central dome. A guard outside the CJI’s courtroom checked my press pass, and I paused for a few seconds to catch my breath. Inside, Gogoi was about to become the third consecutive CJI to trample upon the first principle of natural justice: Nemo judex in sua causa—no person should be a judge in their own cause.
The forty-fourth CJI, JS Khehar, had faced scrutiny after the death of Kalikho Pul, who was briefly the acting chief minister of Arunachal Pradesh in 2016. Pul, a long-time member of the Congress, had parted ways with the party and, with the support of other rebels and the BJP, formed his own government. The Supreme Court dismissed Pul’s government and ruled his appointment invalid, and Khehar, before he was the CJI, had headed the bench that delivered the verdict. An alleged suicide note in Pul’s name accused one of Khehar’s sons of having approached the politician for a bribe to sway his father’s judgement. The note also accused a relative of Dipak Misra, Khehar’s colleague on the bench, of having done the same thing.
The Supreme Court had ruled in the 1990s that no one could file a first-information report naming a Supreme Court judge without first getting permission from the CJI. Pul’s widow, Dangwimsai, sent Khehar a letter asking his permission to do just that. Khehar decided to treat the letter as a writ petition, and listed it before a Supreme Court bench of his choosing. Dangwimsai withdrew the “petition,” expressing protest. The FIR never came. During the hearing, her lawyer told the bench, “A former judge of the Supreme Court met me on behalf of the CJI. I do not want to say more.”
The forty-fifth CJI, Dipak Misra, was confronted with transcribed conversations of a former judge soliciting bribes to influence the course of a matter Misra had heard before he ascended to the top post. These were recorded as part of an investigation by the Central Bureau of Investigation. A lawyers’ group approached the Supreme Court—specifically, a bench led by the court’s second most senior judge—to ask for an independent investigation. Misra used the CJI’s exclusive power to constitute benches and assign cases to bring the group’s petition before a handpicked bench led by himself. The bench dismissed the matter without even bothering to hear the petitioners’ arguments.
Misra later became the first CJI ever to face impeachment proceedings, when the opposition in parliament put forward a motion for his removal. This was blocked by the chairman of the Rajya Sabha, the BJP leader M Venkaiah Naidu. The opposition appealed to the Supreme Court. When the petitioners asked the bench hearing the matter who had passed the order that constituted it, the bench refused to answer, and the petitioners refused to argue further.
Now it was the turn of the forty-sixth CJI, Gogoi. I stepped from the empty corridors into the CJI’s courtroom. Gogoi was in the middle of a monologue, before a courtroom only half filled by the few lawyers who had managed to rush in to watch. Mehta, the solicitor general, and KK Venugopal, the attorney general, stood at the front. Only the visitors’ boxes at the back were full, packed with journalists. It was to them, mostly, that Gogoi seemed to address himself.
Seated under the seal of the Supreme Court, the republic’s highest judge questioned the motives of the complainant. The solicitor general called the complainant an “unscrupulous lady.” Her lawyers were not present to defend her.
Gogoi stated that the complainant had faced two FIRs, including one that was still pending, and that he did not think he should stoop so low as to even deny the charges. He alleged a conspiracy against the office of the CJI, and repeated several times that the independence of the judiciary was under threat. “My peon has got more money than me,” he said, and claimed that since no one could accuse him of corruption, “they have brought this up.”
After speaking for half an hour, and having anchored the entire hearing, Gogoi announced that he would not be party to the order passed that day. It later appeared with the names of only the other two judges. The order asked the media to exercise restraint in publishing “wild and baseless allegations.” Almost every headline that followed included Gogoi’s denial of the complainant’s charges.
One of the first people to jump to Gogoi’s defence was Arun Jaitley, then the finance minister. In a blog post titled “It’s Time to Stand up With the Judiciary,” he dubbed the allegations an “assault on the institution,” and reminded everyone about “the decade of 1970s,” when “we witnessed supersession of judges, intimidation of courts and transfer of High Court Judges.” He concluded that “we should leave it to the wisdom of the Court as to how they intend to deal with it.”
The wisdom of the court was to form a three-judge panel to look into the charges. By the panel’s own admission, its mandate was not to conduct a departmental inquiry, or an in-house probe, or an investigation of possible sexual harassment. It was unclear if the panel even had the power to pass a decision against Gogoi. It did not tell the complainant what procedure it followed, did not give her any record of its proceedings, did not even allow her a lawyer when she appeared before it. She withdrew from the proceedings in protest. Meanwhile, protestors who gathered outside the Supreme Court to show their frustration with this mockery of due process were detained by the police.
The panel continued ex parte, and found “no substance in the allegations.” The court also ordered a former judge to look into whether the complainant was part of a conspiracy against the CJI. That investigation is ongoing.
The NJAC’s fate was decided by a five-judge bench of the Supreme Court led by Khehar, with a four-to-one majority. The lone dissenter, Jasti Chelameswar, got to the heart of the matter from the very first paragraph of his opinion:
We the members of the judiciary exult and frolic in our emancipation from the other two organs of the State. But have we developed an alternate constitutional morality to emancipate us from the theory of checks and balances, robust enough to keep us in control from abusing such independence? Have we acquired independence greater than our intelligence, maturity and nature could digest? Have we really outgrown the malady of dependence or merely transferred it from the political to judicial hierarchy?
Like the other judges on the bench, Chelameswar was all too aware of the dangers of executive dominance. And, also like the others, he acknowledged that the collegium system was far from perfect. But where the others held that the collegium was the least unpalatable option available for safeguarding judicial independence, Chelameswar disagreed—above all because the system was utterly non-transparent. When it came to the collegium’s deliberations and decisions, he wrote, barring the occasional leak, the “records are absolutely beyond the reach of any person including the judges of this Court who are not lucky enough to become the Chief Justice of India.”
Chelameswar saw merit, and no constitutional affront, in an NJAC with not only members of the judiciary and the executive, but also, as the amendment proposed, with two outside representatives, from civil society. This provision, Chelameswar argued, could have acted “as a check on unwholesome trade-offs within the collegium and incestuous accommodations between Judicial and Executive branches.”
Here, Chelameswar broke a taboo. In the unwritten codes of the legal and judicial fraternities, such “unwholesome trade-offs” and “incestuous accommodations,” though whispered of privately, are not to be spoken of in public. Ruma Pal, a former judge of the Supreme Court, had pointed to this before, and Chelameswar quoted her as well:
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.
Chelameswar provided two examples from the existing records of the Supreme Court. In one, Chelameswar wrote, a judge was blocked from elevation to the Madras High Court in 2009, in what appeared “to have been a joint venture in the subversion of the law” governing the collegium system “by both the executive and the judiciary”—one “which neither party is willing to acknowledge.” In the other, from around the same time, PD Dinakaran, then the chief justice of the Karnataka High Court, had been nominated for elevation to the Supreme Court by the collegium. While the nomination was under review, Dinakaran was accused of having abused his power and accumulated wealth in massive disproportion to his official income. After public calls for an inquiry, his elevation was shelved
Chelameswar noted that, by all indications, the collegium had not departed from its usual procedures in first selecting Dinakaran for elevation. The fact that, in the normal course of things, such a judge had made the initial cut “exposed the shallowness (at least for once) of the theory propounded by this Court … that the CJI and the Collegium are the most appropriate authorities to make an assessment of the suitability of candidates for appointment as Judges of Constitutional Courts.” Chelameswar noted that other examples had also been mentioned during the NJAC hearing, “to demonstrate not only the shallowness of the theory but also [that] the recommendations by the Collegium have not necessarily always been in the best interests of the institution and the nation.”
These were already heavy words at the time they were written. Since then, their weight has only grown, and in monumental proportion. Khehar’s elevation to the position of CJI, fifteen months after he led the bench in the NJAC case, inaugurated a series of crises that have left the reputation of the Supreme Court in tatters. There has been the sequence of CJIs ruling in their own cause, and the first ever move to impeach a sitting CJI. There has also been an unprecedented press conference, in which senior judges of the Supreme Court broke the judicial protocol against speaking to the media to sound the alarm over the rot within the institution. Alongside it all, there has been a marked turn in the relationship between the judiciary and the executive, in a direction that raises uncertainty over the courts’ ability to act as a check on the other branches of government.
The inescapable irony is that the judiciary, after all the effort to formally distance itself from the executive after the Emergency, has come full circle to face the same questions over its independence that it did back then. With that, the singular purpose of creating the collegium system stands defeated. The crisis in Indira Gandhi’s day was seen as one of executive imposition—the judiciary’s entire response to it presupposed that that was all it was. But now, after decades of judicial primacy, the judges cannot credibly deny that the mess is very largely of their own making.
The executive—particularly in its current incarnation—is not blameless. The Modi government, with its fixation on centralising power, is an especially potent threat to judicial independence, and has been the greatest beneficiary of the courts’ sorry state. But if it has pushed to get as much out of the courts as it can, it is akin to the executives that have preceded it, and the ones that will follow. Executives have always been assumed, and rightly so, to want to trample on judicial territory. This assumption has forever animated systems of judicial appointment in all of the world’s democracies, India among them. But where every democracy has found its own ways to guard against undue executive power over the composition of the courts, no other democracy has created anything like the collegium system.
The making of the present crisis stretches far beyond the past five years, even if it is in these years that the crisis has reached a zenith. Its causes are many—and include the courts’ habit of treating any allegations of misconduct against individual judges as contempt of the entire judicial system, and so enforcing a blanket silence. If the judiciary is not yet past the point of no return, its journey back from the brink will have to take manifold paths. What those paths are and where they will lead, there is yet no telling. But the journey will have to begin with scrutiny of the collegium.
Chelameswar wrote in his dissenting opinion that the Constitution provided “extraordinary safeguards to protect the tenure and service conditions of the members of the judiciary”—by guarding against changes in remuneration as either punishment or reward, by setting stringent criteria for dismissal, and so on. The Constitution did so in the hope that those “who hold judicial offices so protected will be able to discharge their functions with absolute independence and efficiency.” But, Chelameswar recognised, “any amount of legal and institutional protection will not supply the necessary independence and efficiency to individuals if inherently they are lacking in them.” This left the system with its greatest vulnerability—“the only way governments can think of gaining some control over the judiciary is by making an effort to appoint persons who are inherently pliable.” The factors that make a judge pliable included “individual ambition, loyalty based on political, religious or sectarian considerations, incompetence and lack of integrity.”
The collegium takes it entirely upon itself to watch over judges in the lower courts, and to keep these dangerous factors from infiltrating the higher judiciary. But the collegium’s methods, such as they are, take no measures adequate to the task. “See, how this works is that they discuss prospective names wherever they meet—there are no official meetings of the collegium,” a former member of the body told me. “The CJI discusses it one on one with other members of the collegium, and there is no list that is prepared, nothing is on paper. There is no scrutiny of judgements written by these prospective candidates. I mean, they can’t show one instance when judgements of a person were examined by members of the collegium before that person is elevated to the Supreme Court. It is never done.”
The former collegium member described a “barter system of appointments—give and take.” The judges “just talk, you know—somebody says that X is a good person. That is all. They go by impressions. When a name is brought up, they consider what they recall about that name.” Then one member might say, “All right, I agree with your names, but you add this particular name to the list.” Another might say, “I would agree with the other names if you take this one name out.”
The former collegium member threw himself back in his chair in frustration. “I mean, this is a farce, this whole collegium business.”
The process for appointing the higher judiciary was a point of contention and concern before India even had a constitution. In 1944, Mohandas Gandhi and Muhammad Ali Jinnah began talks in an attempt to heal the rift between the Congress and the Muslim League over the question of a separate Muslim homeland. The lawyer Tej Bahadur Sapru was asked to head a committee that, in its own words, would “examine the whole communal and minorities question from a constitutional and political point of view.” The Sapru committee’s report, published in 1945, dealt at some length with the judiciary. By and large, it reiterated the provisions of the Government of India Act, 1935, which had instituted the Federal Court of India—the forerunner to the Supreme Court. To safeguard the independence of the judiciary from the political establishment, the committee called for judges to have fixed salaries and tenures, to be removed only for gross misbehaviour, and to be appointed by the president, in consultation with the CJI.
When the Constituent Assembly was convened, in 1946, an ad hoc committee was formed to deal with judicial affairs. According to the constitutional historian Granville Austin, though the committee was influenced by the Sapru report, when it came to appointments it worried that Sapru left too much to presidential will. The ad hoc committee proposed two substitute schemes. Under one, judges would be nominated by the president in concurrence with the CJI, and confirmed via supermajority by a select body of high-court chief justices, legal officers of the government and members of parliament. Alternatively, the same select body would nominate three candidates for each vacant judicial post, for the president and CJI to pick one of them by concurrence.
Neither of the schemes satisfied the Union Constitution Committee, led by Jawaharlal Nehru. It urged the adoption of the Sapru committee’s proposal. In response, HJ Kania, the chief justice of the Federal Court, sent a letter to Nehru emphasising the need to insulate appointments from executive or political influence. When choosing nominees to a high court, Kania wrote, the chief justice of that court and the governor of the state in question should be in direct touch, cutting out any mediation, and possible interference, from the local state government.
In the summer of 1949, the Constituent Assembly sat down to discuss draft judicial provisions. Nehru told the gathering that the country’s judges had to be individuals of “the highest integrity,” who could “stand up against the executive government, and whoever may come in their way.” But different members had different ideas of how to make that happen.
Shibban Lal Saxena moved an amendment proposing that appointments be confirmed by a two-thirds majority of parliament. KT Shah was of the view that judges should be appointed only after the president had consulted with the council of states. B Pocker Sahib demanded that the president make appointments only with the concurrence of the chief justice.
BR Ambedkar, in charge of drafting the committee, rejected all three proposals. “There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself,” he said. “It seems to me in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent to which we find it in the United States, it would be dangerous to leave the appointments to be made by the president, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day. Similarly, it seems to me that to make every appointment which the executive wishes to make subject to the concurrence of the legislature is also not a very suitable provision. Apart from its being cumbrous, it also involves the possibility of the appointment being influenced by political pressure and political considerations. The draft article, therefore, steers a middle course. It does not make the president the supreme and the absolute authority in the matter of making appointments. It does not also import the influence of the legislature.”
As to the president requiring the concurrence of the CJI, Ambedkar said, “it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the chief justice and the soundness of his judgement. I personally feel no doubt that the chief justice is a very eminent person. But after all the chief justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the chief justice practically a veto upon the appointment of judges is really to transfer the authority to the chief justice which we are not prepared to vest in the president or the government of the day. I therefore think that is also a dangerous proposition.”
The ratified constitution would state, “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose,” provided that “in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”
It is widely held in the scholarship on the Supreme Court that in the years that followed Independence, while Nehru was the prime minister, the executive and judiciary maintained a certain esprit de corps as guardians of the Constitution. In the light of what followed in the decades after Nehru’s death, in 1964, the skirmishes of the Nehru era, though hardly innocuous, have been conveniently forgotten.
Three days before the Constitution was formally adopted, in 1950, Nehru sent a private letter to the home minister, Vallabhbhai Patel. He wrote to express his reservations about HJ Kania, the country’s highest judicial officer, becoming the first CJI. Nehru felt that Kania’s efforts to block the permanent appointment of the judge Basheer Ahmed to the Madras High Court smacked of communalism. Patel replied that he had already cleared Ahmed’s appointment, and had warned Kania to not act against him.
When Kania died, in 1951, Nehru was not keen on the next most senior judge, Patanjali Shastri, taking up his post. The job was first offered to MC Setalvad, the attorney general, but he, more than 65 years old, was past the age of retirement for judges of the Supreme Court. Setalvad suggested that MC Chagla, the chief justice of the Bombay High Court, be appointed instead. When the judges of the Supreme Court heard of these plans, they all threatened to resign if seniority was not respected. The government caved in. It was at this point that the principle of seniority became an unwritten law of judicial appointment.
India’s first major corruption scandal arrived in 1957, when it was discovered that the Life Insurance Corporation had bought stocks worth millions of rupees in a private enterprise. The finance ministry was accused of funnelling public money into private hands. Chagla headed the one-man tribunal that inquired into the affair. Even while the high-profile inquiry was ongoing, Nehru spoke publicly in defence of the finance minister, much to Chagla’s annoyance. After the inquiry, the minister was forced to resign. “I had done my work conscientiously,” Chagla later wrote in his autobiography, “and had come to my conclusions irrespective of whether they pleased or displeased the Prime Minister or any one else.”
Nehru’s heir and successor, Indira Gandhi, would not stand for such behaviour, as AN Ray’s appointment as the CJI made clear. At his elevation there was no revolt in the Supreme Court, as there was when Nehru threatened to supersede Shastri. When Ray retired, amid the Emergency, the next judge in line by seniority was Hans Raj Khanna—the single judge who had dared to rule against the Emergency government in the Habeas Corpus Case. Gandhi superseded Khanna for a judge who voted in favour of the government in that case.
During the Emergency, the government also transferred a raft of high court judges who had defied its use of draconian powers against its opponents. The judges were sent off to courts seen as punishment postings, or where they occupied diminished positions by seniority, curtailing advancement. In keeping with the letter of the Constitution, the transfers were effected by presidential decree, after consultation with the CJI. Such transfers had earlier also required the consent of the transferee, but Gandhi’s government paid no heed to this convention.
Once the Emergency was lifted, the Janata Party pushed the Congress out of power. But, hollowed out by infighting, the new government did not last. The Congress, with its matriarch at the head, was elected back to power in 1980. The CJI’s chair was held by YV Chandrachud, who had sided with the majority in the Habeas Corpus Case. PN Bhagwati, the second most senior judge of the Supreme Court, sent Gandhi his “heartiest congratulations” on the “resounding victory in the elections” and her “triumphant return as prime minister of India.”
The court-packing resumed. The Constitution mandated that additional judges of the high courts serve tenures of two years, but Gandhi’s government appointed them for only a few months at a time, and would not grant extensions until the last minute. This left the judges constantly at the government’s whim. A similar tactic had been used during the Emergency as well, when two additional judges were refused extensions after they ruled against the government.
Gandhi’s government proposed to have a third of the judges of each high court originate from outside that court’s jurisdiction—a move that required mass transfers on an unprecedented scale. This time, though, it felt the need to respect, even if cosmetically, the convention of consent before transfer. The law minister, P Shiv Shankar, issued a circular to the chief ministers of the states, instructing them to obtain the consent of additional judges in their jurisdictions to be appointed as permanent judges elsewhere in the country.
This proposed composition of the high courts had been mooted earlier by the Law Commission, responsible for recommending judicial reforms, as a way to combat provincialism and aid “national integration.” But the commission had suggested achieving it through the distribution of judges’ initial assignments, not through transfers. Gandhi’s government claimed to be acting in the interest of “national integration,” but anyone with a grasp of judicial history could recognise this as a fig leaf.
In SP Gupta and others vs President of India, a seven-judge bench of the Supreme Court considered, among other things, the validity of the law minister’s circular. This came to be known as the First Judges Case. A majority of the bench ruled that the circular did not deal with transfers, since a judge’s reappointment in another state would only come after their present tenure ended. (The jurist Nanabhoy Palkhivala later said of the majority opinion that it was technically true, just as in The Godfather the title character spoke “the technical truth when, after getting his rival murdered by an assassin, he told his wife, ‘I did not kill him.’”) The government was left to continue with its desired transfers.
The judgment in the first judges cases also considered the exact role of the CJI in the process of higher judicial transfers. During the Emergency, one of the high-court justices to be punitively transferred had challenged the government’s decision to move him. The Supreme Court concluded that, as per the Constitution, the government had to seek the CJI’s opinion before proceeding with a transfer, but was not compelled to follow it. But the court added on a rider—the consultation with the CJI had to be “real, substantial and effective,” and the court could review and strike down any transfer if it was thought to be motivated by “an extraneous reason.” Looking back at that decision, the Supreme Court did away with the rider. The CJI’s opinion was not binding, it ruled, and the president’s transfer orders were wholly immune to judicial review.
The First Judges Case specifically concerned transfers at the high-court level, but as the judgement was rooted in an interpretation of the constitutional language that also governed judicial appointments, it had implications for that larger question too. And, by giving the president unfettered power, it invited widespread manipulation of rank within the high courts.
In 1985, the Supreme Court heard the case of a judge challenging his transfer from the Allahabad High Court. As reported in India Today, the bench for the case heard arguments alleging “that in some high courts, senior judges had been moved out to clear the way for a junior to act as chief justice or take over as permanent chief justices of their own high courts.” Examples of this trend abounded. With its chosen chief justices in place, the government could then influence new appointments to the high courts; the bench hearing the 1985 case accused the government of filling the courts with “sycophant judges.” India Today recorded how one judge “observed that after the retirement of the chief justice in Madhya Pradesh, the next judge in seniority was ‘kept as the acting chief justice so that he clears all the 10 names recommended for appointment’ to the court by the Government. The message was clear: keep a judge in an acting position so that he concurs with the Government’s recommendations on appointments to the bench in the hope of getting confirmed himself.”
Later in the decade, an additional judge of the Madhya Pradesh High Court had his permanent appointment stalled even after he was recommended by successive chief justices of the high court and the CJI. According to another India Today report, this came as retaliation for the judge’s decision to strike down a policy that had granted seven industrialists the exclusive rights to manufacture and distribute liquor in the state. The policy had been instituted when Arjun Singh, a Congress leader, was the chief minister of Madhya Pradesh.
In the early 1990s, a government audit report accused V Ramaswami, a judge of the Supreme Court, of having misused public funds at the high court where he earlier worked. This came during a brief interlude in Congress rule—between the defeat of Rajiv Gandhi’s government in 1989, and the election of PV Narasimha Rao’s minority government two years later. A motion to remove Ramaswami, the first of its kind in the country’s history, came before parliament in 1993. By then, Rao’s government was already in power. The Congress’s members of parliament abstained from voting, and the motion never passed.
At the same time that the Ramaswami scandal broke, high courts across the country faced their own crises. In Bihar, there were suspicions that the chief minister was having judges transferred out at will. At the Bombay High Court, judges accused their own fellows on the bench of corruption, and bar associations threatened a boycott of four judges in whom they had lost all confidence. To rein things in, the CJI, Sabyasachi Mukharji, proposed that a conference of high-court chief justices look for a mechanism to handle allegations of malfeasance. The consensus, India Today reported at the time, was to have an informal collegium at each court to look into them—and, at all costs, to avoid executive intrusion into the matter. The latter desire was particularly strong in light of the fact that the government of VP Singh, who had succeeded Rajiv Gandhi, had proposed to create a national judicial commission for the appointment of judges, amid howls of protest from the judiciary.
In this atmosphere, a three-judge bench of the Supreme Court heard a batch of public-interest litigation that asked for pending judicial vacancies across the country to be filled. This bench saw a need to revisit the court’s own ruling in the First Judges Case, and called for a larger bench to consider it. The central question was what exactly the framers of the Constitution had meant when they wrote that the president had to “consult” with the CJI before making a judicial appointment.
The nine-judge bench in this, the Second Judges Case, created the collegium system. It held, in 1993, that the constitutional mandate for the president to act in consultation with the CJI amounted to a requirement for the CJI’s concurrence. In ruling that the president had no choice but to approve any candidature reaffirmed by the collegium even after the government expressed reservations, the bench made the CJI, as the head of the collegium, the prime authority in the appointment process.
The majority opinion in the Second Judges Case was authored by JS Verma. “The collective wisdom of the constitutional functionaries involved in the process of appointing superior Judges is expected to ensure that persons of unimpeachable integrity alone are appointed to these high offices and no doubtful persons gain entry,” he wrote. “It is not unlikely that the care and attention expected from them in the discharge of this obligation has not been bestowed in all cases.”
Verma noted that the Constituent Assembly had agreed that high judicial appointments “should not be left to the absolute discretion of the executive.” He argued that the provision for consultation with the CJI “was introduced because of the realisation that the Chief Justice is best equipped to know and assess” a candidate for judgeship. But he glossed over Ambedkar’s clear warning to the assembly against transferring “the authority to the chief justice which we are not prepared to vest in the president or the government of the day.”
AP Shah, a former chief justice of the Delhi High Court, pointed me to a critique of the Second Judges judgement by the jurist Robin Cooke, which appeared in the New Zealand Law Journal in 1994. Cooke’s analysis, while scathing, shunned the typical solemnity of law reviews in favour of a jocular wit. “Granted that the meaning of the Constitution can evolve with time,” he wrote. “It is still not easy to see how in less than half a century ‘consultation’ as the term presumably must have been understood by the Constituent Assembly has been transmuted into ‘concurrence.’ Nor would it seem easy to find in the majority judgments convincing reasons for circumventing the difficulty.”
Verma, in the judgement, had quoted Shakespeare’s famous phrase from Measure for Measure that “it is excellent/ To have a giant’s strength; but it is tyrannous/ To use it like a giant.” He presented this as a note of caution, before going on to argue for the primacy of the CJI over the executive. Cooke noted that in the same play, shortly below Verma’s chosen lines, Shakespeare had written something equally well known:
but man, proud man,
Drest in a little brief authority,
Most ignorant of what he’s most assur’d,
His glassy essence, like an angry ape
Plays such fantastic tricks before high heaven
As make the angels weep; who, with our spleens,
Would all themselves laugh mortal.
With the exception of Ranganath Misra, the twenty-first CJI, and KN Singh, the twenty-second, no judge to hold the country’s top judicial post had faced a corruption scandal before the institution of the collegium system, in 1993. Since the retirement of MN Venkatachaliah, the twenty-fifth CJI, in October 1994, such scandals have become commonplace.
AM Ahmadi, the twenty-sixth CJI, quashed the charge of culpable homicide against Union Carbide in a case arising from the Bhopal gas disaster. As a gesture of conciliation, he ordered the corporation to set up a hospital in the city. After he retired, Ahmadi was appointed the chairman, for life, of the trust managing the hospital. In 2010, the Supreme Court was petitioned to order an inquiry into Ahmadi’s alleged mismanagement of the hospital, and compel the release of the trust’s financial records. That order never came, but the court accepted Ahmadi’s resignation from his position. It took care to note its appreciation of his good services to the hospital.
MM Punchhi, the twenty-eighth CJI, faced the threat of dismissal before he assumed the office. The Rajya Sabha was presented with a motion for his impeachment on charges of copious wrongdoing. He had gone beyond the provisions of the law to acquit a businessman earlier convicted of breach of trust. His daughters had received plots of land at the discretion of the chief minister of Haryana, the Congress leader Bhajan Lal, on the same day that Punchhi dismissed a case alleging malfeasance by the chief minister. Punchhi had fixed cases, tried to hear matters in which he was an interested party, and more. The motion did not receive the required number of signatures in the Rajya Sabha before Punchhi was sworn in. JS Verma, the twenty-seventh CJI, had recommended his elevation to the president.
AS Anand, the twenty-ninth CJI, was accused of nepotism, and involvement in corrupt real-estate deals. The charges surfaced after his elevation, and he never faced impeachment proceedings.
Soon after Anand became the CJI, the Supreme Court responded to a formal query from the president asking it to clarify the workings of the collegium system. The court’s reply, in what came to be remembered as the Third Judges Case, noted, “We have heard with some dismay the dire apprehensions expressed by some of the counsel appearing before us.” Clearly, the system had not restored confidence in judicial integrity. The court insisted that it did not share the apprehensions, yet added, “We take the optimistic view that successive Chief Justices of India shall henceforth act in accordance with the second Judges case and this opinion.”
Chelameswar, in his NJAC opinion, dwelt upon this last line:
No wonder, gossip and speculations gather momentum and currency in such state of affairs. If a nine-Judge Bench of this Court takes an optimistic view that successive Chief Justices of India shall henceforth act in accordance with the Second Judges case, the only logical inference that can be drawn is that the law laid down by the Second Judges case was not faithfully followed by the successive Chief Justices, if not in all at least in some cases attracting comments. Instead of Ministers, Judges patronised.
YK Sabharwal, the thirty-sixth CJI, passed a series of orders to demolish illegally constructed commercial complexes in Delhi. This caused the value of floor space in legal commercial properties such as shopping malls to shoot up. After Sabharwal’s retirement, it was reported that, at the height of the demolition drive, his sons’ businesses had received millions of rupees in funding from owners of malls in and around the capital. Sabharwal wrote a public reply to dismiss the “reckless insinuation,” and to say that he worried “not as much about my individual pain and agony, but about the adverse impact such unwarranted public verdicts can have on the independence of the judiciary.” The journalists who broke the story were found guilty of contempt by the Delhi High Court. The Supreme Court overruled the verdict a decade later.
KG Balakrishnan, the thirty-seventh CJI, saw his family’s fortunes rise dramatically during his tenure. One of his sons-in-law acquired assets worth over ten crore rupees. Balakrishnan’s brother, an officer of the Kerala High Court who resigned after charges of corruption, came to own a farmhouse in Tamil Nadu. The judge’s nephew started large business ventures. A former member of parliament alleged that Balakrishnan’s son-in-law and brother had struck deals for favourable verdicts and judicial postings. A former judge of the Kerala High Court said he was once asked to be introduced to Balakrishnan’s relatives by a person looking to influence a case in the Supreme Court. A former Supreme Court judge accused Balakrishnan of concealing an attempt by A Raja, the former telecommunications minister, to influence a judge of the Madras High Court. When Balakrishnan retired, in 2010, the Congress-led government made him the chairman of the National Human Rights Commission.
In 2009, the lawyer Prashant Bhushan, a stubborn crusader for judicial probity, told Tehelka magazine that, in his view, half of the last sixteen or seventeen CJIs had been corrupt. He soon faced charges of contempt of court. Hearing the matter, the Supreme Court observed that the present case had more serious ramifications for its credibility than even earlier contempt cases heard against the former law minister P Shiv Shankar and Bal Thackeray. Shiv Shankar, while a cabinet minister in the late 1980s, had said that the Supreme Court was home to “anti-social elements,” including violators of foreign-exchange regulations, “bride burners and a whole horde of reactionaries.” Thackeray, the head of the Shiv Sena, had said that he pissed on the judgements of the courts, and likened judges to plague-ridden rats.
The Supreme Court challenged Bhushan to prove his allegation. He pointed to the many hurdles to investigating judicial conduct, including those created by the court itself, as a reason for the lack of hard evidence. His father, Shanti Bhushan, who served as the law minister right after the Emergency, made himself party to the case too, and submitted a sealed list naming the allegedly tainted CJIs.
The Supreme Court has put the case on the back-burner, but its own image has not improved since. Altamas Kabir, the thirty-ninth CJI, who heard the case against Bhushan, was later accused of engineering his sister’s appointment to the Calcutta High Court, and punishing a judge who had objected to it. JS Khehar, Dipak Misra and Ranjan Gogoi were to come after him.
Despite everything, supporters of the collegium could argue that the Second Judges Case minimised the executive’s influence over the judiciary. That is more or less true, but it does not mean that the government was denied all avenues to sway judges.
The academics Madhav S Aney, Shubhankar Dam and Giovanni Ko have compiled a dataset covering Supreme Court judgements from 1999 to 2014. It isolates cases in which the Union of India was a party, in which the judgement was unambiguously in favour of or against the government, and which were decided by two-judge benches, since it is only to such benches that cases are meant to be assigned at random. In a second dataset, they note the retirement dates of the judges involved, and, in a third, any post-retirement jobs they received from the government—posts as state governors, for instance, or as members or chairpersons of the National Human Right Commission, the Competition Appellate Tribunal, the Law Commission, and other official bodies.
In a paper titled “Jobs for Justice(s): Corruption in the Supreme Court of India,” the researchers focus on “judges manipulating decisions in salient cases in favour of the government in order to increase the likelihood of obtaining a post-SC job.” They consider a judge’s “pandering incentives” to be determined by two factors. The first is the salience of a case, as indicated by who represents the government in it. Any case that the attorney general appears in, for instance, is considered of prime importance. The second is whether the judge is due to retire at least 16 months before the next election. The assumption is that if the judge is not, there might not be enough time before the government is possibly voted out for it to install them in a choice post.
The paper finds that “judges do engage in corruption by favouring the government when the case is salient and the judges retire long before an election,” and that “judges who have authored favourable judgements in salient cases are more likely to receive prestigious government jobs.” The results, the researchers note, “are not driven by ‘rotten apples,’ i.e., type differences in the integrity of judges, but rather by a rational behavioural response to institutional incentives in the form of career concerns.” The existence of corruption “is the most parsimonious and compelling explanation that fits the data at an aggregate level.”
These findings fit neatly with something that has long been suspected. The Law Commission, as far back as in 1958, had considered it necessary “to safeguard the independence of the Supreme Court Judges by enacting a law barring further employment except as ad hoc Judges of the Supreme Court.” MC Setalvad endorsed that view in his autobiography, and recommended “that a constitutional bar should be imposed on Judges accepting office under the Union or State Governments similar to the bar in the case of the Auditor and Comptroller-General and members of Public Service Commissions.”
KG Balakrishnan’s appointment as the chairman of the National Human Rights Commission by the Congress-led government in 2010 is only one example of a retired Supreme Court judge taking up such a post. AS Anand was earlier installed in the same post by the BJP-led government of Atal Bihari Vajpayee, and Ranganath Misra had been given the job by a Congress administration. The Congress also elected Misra to a term in the Rajya Sabha.
While he was still at the Supreme Court, Misra had led a commission of inquiry into the anti-Sikh pogroms that followed Indira Gandhi’s assassination in 1984, and cleared the ruling Congress of culpability.
Soon after the Modi government took power, it chose P Sathasivam, the fortieth CJI, to be the governor of Kerala. Sathasivam had been on a Supreme Court bench that dismissed a plea for the Central Bureau of Investigation to take over a probe into the anti-Muslim pogroms in Gujarat under Modi’s rule. He also led a bench that dismissed an FIR naming Amit Shah in connection with the encounter killing of Tulsiram Prajapati, an associate of Sohrabuddin Sheikh. The same bench clubbed the Prajapati case together with the case regarding Sheikh’s killing, in which Shah was already facing trial. In 2015, Sathasivam was a guest at a wedding reception for Shah’s son.
More recently, in 2018, the Modi government appointed AK Goel to head the National Green Tribunal.
JS Khehar, on his arrival as the CJI, inherited the relationship between the judiciary and the executive in a state of open strife. His predecessor, TS Thakur, had shared a stage with Modi six months after the NJAC judgement, and was moved to tears as he pleaded for the government to move on new judicial appointments. It appeared that the executive, chafed by the NJAC setback, was stonewalling, refusing to either move ahead with or send back the files of the collegium’s nominees. The law minister, Ravi Shankar Prasad, told a gathering on 29 November 2016—Constitution Day—that “courts may quash the order of the government, courts may set aside a legislation, but the governance must remain with those who are elected to govern.” On the same occasion, the attorney general, Mukul Rohatgi, said that “the judiciary must realise that it also has a lakshman rekha”—a line it must not cross. Khehar, then about a month short of being sworn in, also spoke, and gave no sign of a lapse in hostilities. He said the judiciary had struck down some constitutional amendments that were “unprincipled, self-serving and reprehensible,” and that the Supreme Court had “consistently tried to uphold the basic ethos of the constitutional philosophy.” This, he pointedly told the attorney general, “is the lakshman rekha that you seek.”
By February 2017, a different tone prevailed. Modi, at a public gathering, complimented Khehar’s “quick decisions,” and said he wished Khehar could remain the CJI beyond the six months remaining until his retirement. Khehar assured the prime minister “that we will keep within our boundary.” With Khehar in office, the government had started to clear judicial appointments.
In the interim, the Supreme Court had dealt with the Kalikho Pul affair, with its allegations that Khehar’s son had solicited bribes, and heard a petition for an investigation into the Sahara–Birla papers. The petition alleged that income-tax officials had failed to act on documents, found during raids on two corporate entities, which listed apparent payments to “Modiji” and “CM Gujarat,” among others. The case was dismissed.
“Regrettably one gets an impression that on one hand state government and central government were not taking any action on the suicide note, and on the other hand Supreme Court was deciding the Sahara–Birla matter, giving clean chit to alleged recipients from across political spectrum,” the senior advocate Dushyant Dave told an interviewer.
Dipak Misra, before he became the CJI, had passed an order making it mandatory for the national anthem to be played in cinema halls before every movie screening—a step that dovetailed with the Modi government’s nationalist agenda. The cordiality between the Supreme Court and the government continued with his arrival at the head of the judiciary, and peaked with the Loya judgement.
BH Loya, a judge in a special court in Maharashtra, died suddenly in late 2014, while hearing a case on the killing of Sohrabuddin Sheikh. The main accused in Sohrabuddin’s killing was Amit Shah, by then the president of the BJP. In 2017, Loya’s family spoke out to say his death had not been natural, as was officially claimed, and that he had been offered a bribe to sway his judgement. The Supreme Court considered several petitions asking for an independent investigation. A matter this sensitive would typically have been heard by the most senior judges of the court, but Misra assigned it to a bench headed by the relatively low-ranking Arun Mishra, despite the judge’s known connections to the RSS and BJP.
On the day Mishra’s bench was to hear the petitions, the four most senior judges after the CJI, including Ranjan Gogoi and Jasti Chelameswar, called a press conference. This was another scandalous first in the history of the Supreme Court. The four judges said many undesirable things had been happening at the institution, and that democracy would not survive if it was not protected. They had gone to the CJI that morning with a particular request, which he did not entertain. With no other recourse, the judges came before the media. When asked if the request had to do with the Loya case, Gogoi replied, “Yes.”
Mishra recused himself from the matter. The CJI formed another bench to take it up, headed by himself but without any of the judges who had called the press conference. This bench dismissed the petitions, since, it said, judicial officers claiming to have been with Loya at his death had stated that there was no foul play. The opposition’s move to impeach Misra came the day after the verdict was delivered.
Soon after, AP Shah, the former chief justice of the Delhi High Court, described the Loya judgement as “utterly wrong and jurisprudentially incorrect on so many counts.” The court had relied on statements from the judicial officers while ignoring inconsistencies in their accounts. It also overlooked the fact that the statements had not been delivered under oath, and did not call the officers forward to be cross examined as witnesses. The statements were trustworthy, the judgement said, because they had “a ring of truth.”
All of this came amid the allegations of Misra’s personal corruption. “The executive is blackmailing the chief justice,” Prashant Bhushan told an interviewer. “The chief justice is clearly working under the government’s pressure.”
Gogoi’s term as the CJI has been defined by what some have called “sealed-cover” jurisprudence. In a number of cases of enormous importance to the ruling government, Supreme Court benches led by Gogoi have asked for all critical information from the government to be submitted under seal. These have involved scrutiny of the controversial purchase of Rafale fighter jets, the removal of the director of the Central Bureau of Investigation, the National Register of Citizens and more. Without this information in public, there is no way to analyse Gogoi’s decisions, most of which have fallen in the government’s favour.
In early 2018, the Modi government instituted electoral bonds, which allow for anonymous donations to political parties. The Supreme Court was asked to consider the constitutional validity of the scheme, but the matter was kept pending. All the while, parties were allowed to continue raising funds through the bonds as they prepared for the 2019 general election. The court took the matter up earlier this year, almost on the cusp of the election, and Gogoi passed an interim order not to stay the bonds scheme. For the sake of transparency, he ordered political parties to submit details of their donors to the Election Commission after the election, under sealed covers. As of last year, over ninety percent of all funds donated via electoral bonds had gone to the BJP.
This January, on Facebook, the former Supreme Court judge Markandey Katju posted a call for Gogoi to “come clean.” Katju wrote that in 2016, when Thakur was the CJI, the collegium had recommended the transfer of the chief justice of the Delhi High Court, Valmiki Mehta, because of “some very serious charges” against him. The government took no action until Khehar took over, and the collegium then rescinded its view. Gogoi’s daughter is married to Mehta’s son. “What I have heard,” Katju wrote, “is that Justice Gogoi, who was then a puisne Judge in the Supreme Court, went to PM Modi or some other high ranking Minister in Modi’s cabinet and begged that his sambandhi be not transferred.” If this was true, Katju reasoned, “then Gogoi has obviously taken an obligation from the BJP govt which he has to return.”
When the former Supreme Court employee went public with her allegation against Gogoi, it emerged that the head of the Delhi police and the home minister had been aware since at least January that the CJI stood accused of sexual harassment. The Supreme Court panel that looked into the charges and concluded Gogoi was blameless did not make its report available to the complainant or the wider public, though it did submit a copy to Gogoi. The report remains, in essence, under sealed cover.
In a speech in 2008, JS Verma distanced himself from his opinion in the Second Judges Case. Judicial appointments, he said, had become “judicial disappointments.” In an interview that year, he said his words in the judgement had been “very much misunderstood and misused.” It said “the appointment process of High Court and Supreme Court Judges is basically a joint or participatory exercise between the executive and the judiciary,” he elaborated, with “both taking part in it.” But this did not square with the power the judgement gave the collegium to compel the president to issue a warrant of appointment by reiterating its recommendation for a nominee.
Asked if he thought that a judicial commission could address “aberrations in the appointment process,” Verma seemed to have given up on any systemic solutions. “Whatever the system,” he replied, “it is the honesty of purpose of the persons who are in charge of working that system that matters.”
Shielded from sight, those persons have been free to indulge particular biases. Writing in 2002 to urge “overhaul and democratisation” of the appointment process, VR Krishna Iyer, who served on the Supreme Court through much of the turbulent 1970s, held that the collegium system had “aggravated the malady of favouritism, arbitrariness, dilatoriness and injustice to women and Scheduled Castes, Scheduled Tribes and like communities.” These groups remain badly underrepresented in the higher judiciary. George Gadbois, a scholar of the Supreme Court, found that, up to 1990, over ninety percent of all the judges of the Supreme Court were either Brahmins or from what he called “forward castes.”
There have been 243 judges appointed to the Supreme Court. For its first 39 years, the court had no women judges at all. To date, there have only been eight—two of them appointed just last year. No woman has ever been the CJI. Ruma Pal, who served on the court from 2000 to 2006, could have been the first, but something curious happened at the time of her appointment. She was meant to be sworn in alongside YK Sabharwal and Doraiswamy Raju. In such simultaneous appointments, whoever takes the oath first is accorded seniority—as happened with Jasti Chelameswar and Dipak Misra, who were sworn in on the same day. But the swearing-in ceremony that Pal was scheduled to attend was brought forward at the last minute, just by a day, to coincide with the fiftieth anniversary of the Supreme Court’s foundation. By the time Pal arrived in Delhi, Sabharwal had already taken the oath. He went on to become the thirty-sixth CJI.
Other biases creep in with what are known as “uncle judges”—members of the judiciary who have relatives practising as lawyers in the courts. Often, those relatives receive preferential treatment from the courts, on occasion as a prelude to consideration for judicial appointment. The law commission acknowledged the existence of uncle judges in 2009. When I reported a profile of Khehar during his tenure as the CJI, several lawyers told me about his son’s rising profile at the Punjab and Haryana High Court, thanks to judges’ reluctance to displease the son of the man empowered to decide if they—and, often, also their relatives or associates—deserved elevation. Dipak Misra is the nephew of Ranganath Misra, the twenty-first CJI. His rise as a lawyer at the Orissa High Court overlapped with his uncle’s career at the Supreme Court. In elevating him to judgeship in 1996, the collegium—barely three years into its pursuit of “persons of unimpeachable integrity”—overlooked a prior judicial order indicting him of land fraud.
To add to this, the collegium allows for personal vendettas. Altamas Kabir’s sister was appointed to the Calcutta High Court in 2010, while her brother was a judge of the Supreme Court, and in line to become the CJI. A former member of the higher judiciary told me that the three-judge collegium of the Calcutta High Court had recommended her appointment by a majority of two to one. “The person who dissented wrote something very harsh about her practice as a lawyer, which was non-existent,” the former judge said. After Kabir became the CJI, in 2012, the dissenting judge’s name came before the Supreme Court collegium. According to the former judge, Kabir blocked the dissenter’s elevation.
For as long as a judicial appointments commission was at least a theoretical possibility, the conversation around reforming the courts turned periodically to what the best composition of such a body might be. In 1987, the Law Commission suggested one that included, besides the CJI and his top colleagues, several senior chief justices of the high courts, the law minister, the attorney general, a reputed legal academic and the CJI’s most recent predecessor. Krishna Iyer once proposed that non-judicial participants include academics, statesmen “not involved in the political polemics of the country,” representatives of bar councils, as well as the law and home ministers.
The NJAC judgement made all such deliberations utterly pointless. But even there, Kurian Joseph, a member of the NJAC bench who concurred that the ninety-ninth amendment was unconstitutional, wrote that “all was and is not well.” In his opinion in the case, he agreed with Chelameswar “that the present Collegium system lacks transparency, accountability and objectivity.” Joseph would not go into the details of why this was so, but he felt “that it is not the trusteeship that failed, but the frailties of the trustees and the collaborators which failed the system.” He still believed the system could be repaired, and called for “glasnost” and “perestroika”— openness and reform, in the vocabulary of the Soviet Union as it tried to salvage itself in the late 1980s under Mikhail Gorbachev.
Khehar, speaking for the majority in the NJAC case, wrote that the functioning of the collegium system “may well not be as bad as it is shown to be.” But even he was ready for a new memorandum of procedure to govern the mechanics of the process, and he tasked the government with drafting it. If this was meant as an act of conciliation, it was also an act of folly. If the executive’s intentions in pushing for the NJAC were suspect, as Khehar himself seemed to suggest in the judgement, then those same intentions were sure to influence any new procedure it proposed.
In the event, the government insisted on a clause in the memorandum that would let it block any appointment on grounds of “national security”—a euphemism not too distant from the “national integration” of Indira Gandhi’s day. The memorandum has not been finalised to date. The only change to the system since the NJAC judgement came in 2017, when the collegium began making its resolutions public. Its deliberations remain entirely private.
That leaves the judiciary moored at the same point at which it arrived in 1993, after the stormy journey it began during the Emergency—at the mercy of, as Verma put it, “the honesty of purpose of the persons who are in charge.”
Gogoi’s appearance in the judges’ press conference had nurtured hope that the judiciary might regain some of its lost esteem under his impending stewardship. But since he has taken office, even discounting the questions surrounding the stalled transfer of Valmiki Mehta and the allegations of his sexual misconduct, the list of judges elevated to the Supreme Court by the collegium under his charge has told a dispiriting story.
First, in January, came Dinesh Maheshwari and Sanjiv Khanna. Last year, while Maheshwari was the chief justice of the Karnataka High Court, Chelameswar called for a full meeting of the Supreme Court to discuss Maheshwari’s conduct. The issue, again, was executive interference in the judiciary. Chelameswar wrote in a letter to Dipak Misra, then the CJI, that Maheshwari had shown himself “more loyal than the king” in trying to block the appointment of a judge at the behest of the government. No full-court meeting was called, and Maheshwari continued to head the Karnataka High Court until his elevation to the Supreme Court.
Sanjiv Khanna, formerly of the Delhi High Court, is the nephew of Hans Raj Khanna, the storied dissident in the Habeas Corpus Case. His appointment to the Supreme Court was “a big surprise,” as Khanna himself put it in a speech while taking leave of his parent court.
On 12 December 2018, about a month before Khanna was appointed to the Supreme Court, the collegium, headed by Gogoi, had in fact recommended two different candidates for elevation—Pradeep Nandrajog and Rajendra Menon. Nandrajog, like Khanna, was also of the Delhi High Court, and both he and Menon were senior to Khanna by several years. But the collegium’s decision to nominate the two was never forwarded to the government. Khanna, in effect, was made to supersede the two more experienced judges.
Madan Lokur, who retired from the Supreme Court at the end of December and was part of the collegium meeting on 12 December, questioned the reasons for this in a subsequent public interview, but no answers were forthcoming. Khanna’s appointment was cleared after Lokur’s retirement, which changed the composition of the collegium.
A former member of the higher judiciary offered me a possible explanation. The collegium, the former judge said, had already decided to elevate Bhushan Gavai, a judge of the Bombay High Court. In 2017, after BH Loya’s family voiced suspicions over his sudden death, Gavai broke the judicial prohibition on media contact to invite journalists from select publications directly into his chamber. He disparaged the family’s fears, and dismissed their demand for an investigation. As things stood, if Gavai were elevated, given his age and seniority he would succeed DY Chandrachud as the CJI in November 2024. The problem with that, the former judge said, was that both Chandrachud and Gavai came from the Bombay High Court, and having consecutive CJIs from the same high court does not look good.
“So they needed a buffer candidate between the two,” he explained. Menon and Nandrajog did not serve that purpose. Given their ages, both would retire before Chandrachud’s term came to an end. Khanna, on the other hand, is perfectly placed to take over as the CJI from Chandrachud in November 2024, before he retires in May 2025. That leaves Gavai, who was installed in the Supreme Court this May, just over six months to enjoy the office after him.
I asked the former judge, “Are you saying that the collegium actually went looking for a candidate with a specific birth date to fit into that bracket?” He replied, with a benign smile, “These are the things that get considered, you see. What is their birth date? When will they retire? Will they get to be the CJI?”
I asked another former Supreme Court judge, who had also served on the collegium, if he found this explanation believable. He nodded. “It is very sad,” he said. “I am just so disappointed with the lot sitting there.”
Gavai was elevated at the same time as Surya Kant. Since 2012, an affidavit accusing Kant of being involved in shady real-estate dealings has been pending before the Supreme Court. A few years ago, a prisoner in Punjab also alleged that Kant had accepted bribes to grant bail in numerous cases. Last year, when Kant became the chief justice of the Himachal Pradesh High Court, AK Goel, by then a judge of the Supreme Court, wrote a letter of protest to the CJI, Misra, to complain that there had been no scrutiny of these charges. Nothing came of it then, or afterwards. Kant, who is known to be close to Gogoi, is in line to be the CJI for 15 months, starting in 2025.
It took JS Verma 15 years to admit to problems with his judgement in the Second Judges Case. In a recent public appearance, not four years after the NJAC judgement, Kurian Joseph already regretted the position he had taken in it. Seeing the state of the Supreme Court, he said, “The other way would have been better.” The judicial glasnost and perestroika he wished for remain elusive dreams.
It is tempting to read allegory into Joseph’s choice of terms. In the Soviet Union, any criticism of the ruling apparatus was tantamount to an assault on the communist project as a whole. To question a single policy was to question Stalin, Lenin and the revolution itself. After seven amnesiac decades, when the Soviet government opened some part of its archives as part of Gorbachev’s glasnost and perestroika, history came flooding in. The national narrative could no longer be controlled. Gorbachev later admitted that these policies were perhaps the most significant factor in the collapse of the Soviet empire.
The Supreme Court seems in no mood to open such floodgates, which has meant perpetuating the amnesia, the evasion of accountability, the stifling of dissent. Gogoi defended this predisposition in April. A lawyer was arguing that the CJI’s office is bound to disclose information about the appointments process under the Right to Information Act. Gogoi, sitting in the CJI’s courtroom, replied that nobody wants “a system of opaqueness” or to “live in darkness,” but throwing things open could not come at the cost of judicial independence and he was not sure where to draw the line. With a flash of piercing clarity, he added, “In the name of transparency, we can’t destroy the institution.”
This story first appeared in The Caravan Magazine on July 01, 2019 here.