Home / Opinion / Rethinking the seniority convention

It is widely accepted by both judiciary and government that judicial reforms are the need of the hour. Our courts are slow, poorly staffed, ill-equipped in terms of infrastructure and unable to provide speedy and effective justice to citizens. Despite this, a critical reform that is taboo for discussion is how the Chief Justice of India, the head of the institution, ought to be appointed. Any suggestion that departs from the existing convention of seniority—appointing the seniormost serving judge of the Supreme Court as the Chief Justice—attracts the fatal charge of ‘supersession’. Supersession, in turn, brings back painful memories of Indira Gandhi’s assault on the judiciary immediately prior to and during the Emergency, rewarding judges who were sympathetic to government and punishing those who were not. Any attempt to appoint anyone apart from the seniormost judge as Chief Justice is thus inevitably conflated with a sinister design of creating a judiciary ‘made to measure’.

There was much wrong in the way in which Indira Gandhi’s government superseded unsympathetic judges. But equally, it is time to recognise that there is much wrong in blindly appointing the senior-most judge of the Supreme Court as Chief Justice of India. The end of Justice T.S. Thakur’s approximately year-long tenure as Chief Justice of India provides an appropriate juncture to make the claim that it is time to start a debate on the seniority convention. Without any disrespect to Justice Thakur, his tenure demonstrates the pitfalls of seniority—uncertain leadership and an inability to take a long-term view on reforms. Critically, it reaffirms the salient fact that good judges do not necessarily make good Chief Justices.

Need for administrative nous

There is little doubt about the fact that in over two decades of public service as a judge, Justice Thakur has a sterling record with many landmark judgments including a seminal judgment clarifying constitutional jurisprudence regarding a state’s taxation power in relation to inter-state trade and commerce. However, as Chief Justice of India, his administrative nous has often been questionable.

With the government dragging its feet in reaching a compromise on the Memorandum of Procedure for appointment of judges, Justice Thakur surprisingly engaged in a high-octane public debate on the subject. Sometimes it took the form of entreaty—he beseeched the Prime Minister with moistened eyes to appoint judges quicker; at other times it was admonishing—promising the stick if it failed to act. It is little surprise that his confusing overtures failed to establish a new procedure to appoint judges.

While responsibility for this state of affairs must be jointly borne by the judiciary, which created the situation in the first place by its poorly reasoned NJAC judgment, and the government which dug its heels in, one cannot but wonder how a different, consensus-building administrator might have performed this task.

Similarly unsatisfactory was his approach towards Justice Chelameswar who took the unprecedented step of raising his concerns about internal processes of appointment within the judicial collegium in public. Justice Chelameswar’s revelations—that the collegium did not record minutes of its meetings and followed no established criteria for appointment—and his consequent request for transparency, it appears, were simply not acted upon. For a judiciary that insists on reasoned orders, one would have imagined that it would practice what it preached. But despite its double standards being exposed publicly, it appears that no meaningful steps were taken to set the house in order.

Opacity as the norm

Instead, opacity has been the norm of Justice Thakur’s administration. In a surprising move, Justice Madan Lokur, who had headed the e-courts committee of the Supreme Court with distinction for four years was unceremoniously dropped. No reasons were provided for his removal. Second, in a mass transfer order, several judges were transferred from their parent High Courts to other High Courts. The list included transfers on apparently disciplinary grounds as well as the confounding transfer of Justice Shakhder, a highly respected judge of the Delhi High Court. Again, no reasons were provided.

The nadir of opacity was reached with a surprising and non-reasoned order issued on 13 December by the Supreme Court Registry. The order communicated that the Chief Justice had been pleased to grant an advance increment to all existing officers and employees of the court including canteen staff. On the one hand, this order appears to be legally suspect—the rule which is quoted as vesting the Chief Justice such power envisages increments to individual government servants and not to the entire staff.

Even if legally valid, more troubling is the feudal approach it reveals towards judicial administration. For the Chief Justice of India, possibly still the most trusted person in the country, to unilaterally engage in staff welfare on the verge of his retirement using taxpayers’ money is simply unacceptable. It is squarely at odds with a Constitution that is founded on the rule of law and a responsible judiciary that never misses an opportunity to underline its own role as its protector.

Conventions that make this possible

Justice Thakur’s shortcomings as an administrator are not an indictment of his ability, as much a criticism of the discourse and conventions which make his appointment possible. If there is any home truth about the Supreme Court today, it is the fact that the court manifests its own independence through overt displays of anti-government rhetoric. Having cast this as its raison d’etre, any internal dissension and consequently administrative reform is viewed primarily as antithetical to such rhetoric, irrespective of its merits.

The all-consuming nature of the rhetoric also translates into a preference for the seemingly benign convention of seniority in appointment rather than subjective, merit-based appointment of the Chief Justice of India, which would necessarily involve the government of the day.

The 1st Law Commission chaired by former Attorney-General Motilal Setalvad thought otherwise. Its report had pithily observed that good judges do not necessarily make good Chief Justices. Underlying this sentiment is a simple truth— the skills required to make a good judge— knowledge of the law, sharp observation, patience, integrity and an innate sense of fairness, amongst others— do not necessarily make one a good Chief Justice. To be a Chief Justice, one has to be a visionary leader, a competent administrator with the skill to build consensus and an astute judge of people. It is consequently unsurprising that in advanced and independent judiciaries such as the United Kingdom, United States of America and Australia, the most competent candidate, and not the seniormost judge, is appointed Chief Justice.

Equally, any successful leader of an institution needs a minimum period of time to deliver results. The 1st Law Commission noted that a Chief Justice “with a tenure of five to seven years" is essential to the administration of justice. However, blind adherence to seniority has meant that on average, a Chief Justice of India in the last two decades (since 1990) has served for 13 months with the shortest having served for a period of 17 days. This is plainly absurd. At the same time, it is pernicious—short tenures often foster individual legacy-building at the cost of the institution. Justice Madan Mohan Punchhi’s failed attempts as Chief Justice to cut the collegium down to size and exercise outsize powers of appointment as Chief Justice in his 10 months at the helm provides an illustrative example.

Worse still, the halo of objectivity that is touted as the standout virtue of the seniority convention is often a smokescreen. In 1988, seniority was seemingly a plaything of the powerful, with the order of investiture as judge of the Supreme Court facilitating a particular judge becoming Chief Justice and another missing out.

Equally troubling are the numerous instances of appointment of particular persons to the Supreme Court being delayed or fast-tracked by a judicial collegium to skew seniority for tangential considerations. Seniority today isn’t merely a benign convention; it is often a strategic tool wielded by the judicial collegium to reward or punish.

This is not to downplay the risks of change. There is much fear that independent institutions will be a casualty as the present government seeks to consolidate its grip on power. But herein lies the rub—so secretive are the judiciary’s processes, so outlandish some of its judgments, and so insidious its overreach into governance, that in the name of independence, the judiciary is making itself to a different kind of measure—opaque, clannish, resistant to necessary reform and slowly but surely losing public confidence. And a court that loses public confidence is only a step away from losing its independence. Were she alive, such a prospect, of the court’s own making, might have made Indira Gandhi happier than anything she successfully managed to engineer.

Arghya Sengupta is Research Director, Vidhi Centre for Legal Policy. Views are personal.

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