The proposed Judicial Appointments Commission provides an opportunity to discontinue the seniority convention that privileges age over merit in appointing the Chief Justice of India

Mohan Kumaramangalam is perhaps most infamously remembered for his strident advocacy of a method of appointment of the Chief Justice of India that would take into account a candidate’s social and constitutional philosophy as assessed by the government rather than seniority alone. Pejoratively viewed as seeking a “committed judiciary,” his justification was widely seen as an attempt to vindicate the supersession of Justices Shelat, Hegde and Grover in favour of Justice Ray as Chief Justice of India. Undoubtedly, Kumaramangalam’s motives were sinister given that Indira Gandhi’s government, in which he was a Minister, had been continuously thwarted by a powerfully counter-majoritarian Court. But in dismissing his suggestions based on his motives, a genuine conversation on a rigid adherence to the seniority convention in the appointment of the Chief Justice of India was foreclosed.

Fortunately, a recent difference of opinion between the former Chief Justice of India, Justice P. Sathasivam and the incumbent, Justice R.M. Lodha, provides a long overdue opportunity to restart this conversation. In an interview given after he took office as Chief Justice of India, Justice Lodha said he believed that the Chief Justice of India should not have a fixed tenure in office. If there was fixed tenure, he said, “the legitimate expectations of other judges would be taken away.” This was a distinctly contrarian view to the one expressed by his predecessor Justice Sathasivam, who had said before demitting office that the Chief Justice of India should “most certainly” have a fixed tenure. Giving his own example, he said that the lack of a fixed tenure meant that “there were many things that I [he] wanted to do but couldn’t do due to short tenure.” To be fair to Justice Lodha, had he agreed with Justice Sathasivam, his concurrence might have been perceived as self-serving, given that his term as Chief Justice of India is for five months. The difference of opinion however points to a deeper enquiry — how the Supreme Court of India grapples with tradition and the need for objectivity in a rapidly modernising and rampantly corrupt nation.

The issue of having a fixed tenure for the Chief Justice of India arises owing to the short tenures that Chief Justices have on average. In the last 20 years, there have been 16 Chief Justices of India. Out of them, only four have had tenures of more than two years. On the other hand, eight have served for less than a year with one having served for less than a month. The limited length of such tenures, in turn, is directly attributable to the rigid adherence to the seniority convention, by which, at the time a vacancy in the Chief Justice’s post arises, the senior-most judge in the Supreme Court is appointed irrespective of the length of tenure remaining before his retirement. Thus, if there were no seniority convention, the question of proposing a fixed tenure would not arise as length of tenure would be one of the factors considered for appointment.

Now, it can be nobody’s case that such a quick turnover of Chief Justices is healthy for the Supreme Court — it is well accepted that excessively frequent transitions lead to systemic inefficiencies, increase incoherence in strategies to deal with ongoing problems and hinder the stability of leadership that a large and widely respected institution requires. The reasons for persistence with such a convention are primarily twofold — the legitimate expectations of future Chief Justices to hold such offices would be taken away in the absence of its strict application, a point Justice Lodha makes, and any other method would be subjective with considerable potential for the independence of the judiciary being adversely affected, as Kumaramangalam’s proposal was seen as doing.

No legitimate expectations

The argument that fixed tenure, which modifies the seniority convention as it applies today, upsets legitimate expectations of future Chief Justices, is curious since no judge of the Supreme Court can have a “legitimate expectation” to be Chief Justice of India. In law, as Justice Lodha himself held in a recent judgment, “The protection of legitimate expectation does not require the fulfillment of the expectation where an overriding public interest requires otherwise. In other words, personal benefit must give way to public interest and the doctrine of legitimate expectation would not be invoked which could block public interest for private benefit” — (Monnet Ispat and Energy Ltd. v. Union of India And Ors., (2012)11SCC1). The overriding public interest in this case lies in the need for stable leadership of the Indian judiciary and its attendant public benefits; on the contrary, future judges becoming Chief Justice is on the other hand a matter of great personal honour and no more. In these circumstances, it is trite that the public interest ought to prevail. At most, propriety might require this change to be introduced prospectively after the current crop of puisne judges slated to become Chief Justice of India on the basis of the seniority convention retire. However this is simply an act of courtesy; “legitimate expectations” of Chief Justiceship that individual judges may harbour cannot provide a principled ground against fixed tenure and modified application of the seniority convention.

Revisiting tradition

But the issue of fixed tenure is a fig leaf — the core issue is whether to repudiate the seniority convention itself. Seniority in the appointment of the Chief Justice of India is at the confluence of two powerful forces shaping the functioning of the Indian judiciary today — tradition and the insistence on objective criteria. A strict adherence to tradition has served the Supreme Court well in many respects. But the seniority convention represents a facet of tradition that is patently antiquated. At a time when age functions as a de facto criterion for appointment of judges to the Supreme Court, with no judge since 1979 having been appointed before the age of 55, a high rate of turnover of Chief Justices is inevitable. To stick to seniority despite this can only be explained by the objectivity that seniority is perceived to lend, thereby obviating threats to judicial independence.

The significance attached to such objectivity is overstated for two reasons. First, seniority is determined not simply by age, but rather by the date of appointment to the Supreme Court. The process of appointment by a collegium led by the Chief Justice of India is opaque, functioning without any transparency or accountability for decisions taken. Certain appointments have raised wide speculation in legal circles for their timing with cases of unexplained expedition or delay, regarding which neither can information be sought nor review requested. It is thus within the realm of possibility that the objectivity that the seniority convention engenders is often founded on a ruse.

Second, it is a peculiar consequence of the accountability discourse that is sweeping India currently in response to rampant corruption in public life, that a premium has been placed on objective criteria in decision-making. Independent commissions are regularly demanded since they are expected to decide more objectively than ministries; major political disputes of the day end up in a court of law which promises more objective resolution; routine decisions by government officers are questioned since the criteria required the officer to be subjectively satisfied. Objectivity today has become a byword for fairness and more worryingly, any decision not on objective criteria often automatically leads to claims of corruption or hanky-panky. This disincentivises good decision-making and creates perverse results, worse than the malaise it set out to cure.

Competence, not seniority

Doing away with the seniority convention in the appointment of the Chief Justice of India provides an ideal opportunity to reverse this trend. With the Judicial Appointments Commission (JAC) on the anvil, the power to appoint judges is being vested in a high-powered bipartisan institution. It is true that further reforms to the Bills seeking to establish the commission are necessary. However in principle, a carefully constituted commission is a body which should be empowered to select the person, who in its opinion is the most competent to deal with the administrative, judicial and leadership tasks expected of a Chief Justice of India. This, as the seminal 14th Report of the Law Commission of India chaired by Motilal Setalvad indicated, “would be no reflection on the senior-most puisne judge since the considerations which must [therefore] prevail in making the selection to this office must be basically different from those that would govern the appointment of other judges of the Supreme Court.”

It is a shame that both Justices Sathasivam and Lodha, apart from numerous Chief Justices that India has had for extremely short durations, could not serve for longer; or several others seen widely as deserving of the office never served at all. The proposed establishment of the JAC provides an opportunity to prevent such unfortunate incidents from recurring by dispensing with the seniority convention, a tradition that has outlived its time. It would demonstrate that as a mature polity, India is prepared to trust decisions taken by accountable public authorities following well-established and transparent processes. And with it hopefully bury the ghost of Kumaramangalam and the rhetoric of the present accountability discourse that equates all subjectivity with nefariousness.

(Arghya Sengupta is research director of Vidhi Centre for Legal Policy, a New Delhi-based legal policy think tank and a former lecturer in Law, University of Oxford.)

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