By Abhinav Chandrachud
Selecting a judge for the high court or supreme court…was very much like selecting a match for one’s son or daughter in an arranged marriage.
The merit of candidates was looked into. Some chief justices went through judgments of the potential candidate in order to determine his ability. Subject matter expertise was, at times, an important consideration. Integrity was essential. Interestingly, in the early years, a judge’s knowledge of English and American cases was considered an advantage while determining whether he was fit for elevation to the supreme court.
Apart from the ideological orientation of judges, which has been abandoned in today’s collegium system of judicial appointments, it would be safe to assume that many of these criteria continue to be employed today while determining whether or not to appoint a person as a judge.
Among other criteria, appointments are made on the basis of region, religion, caste and gender. An effort is made to ensure that judges from different regions and states in India, and from religious minority communities, and backward castes are appointed… In countries like the US, diversity in courts is officially considered to be important, but in India it is spoken of in a negative manner.
In the US, diversity in courts is considered important, but in India it is spoken of in a negative manner. The feeling which is often harboured in India is that diversity comes to the court at the cost of the merit of judicial candidates. Quoting someone else, Justice SK Das lamented that the supreme court was “a zoo with all species.” In 1958, the law commission in its 14th report strongly deprecated this practice of “communal and regional considerations” which had “prevailed in making the selection of the judges.”
Larger, politically significant states now have 2-3 seats reserved in the supreme court, while smaller states get no more than 1-2 seats. Justice AM Ahmadi agreed that part of the reason he was appointed to the supreme court in December 1988 was that the state of Gujarat, where he had served as a high court judge, required representation at the supreme court.
In the 1950s, justice Vivian Bose, who came from the Nagpur high court, found it difficult to build lasting bonds with the supreme court’s south Indian judges. He said that they were hard to get to know, and culturally very different from the north and central Indian judges. Bose was not alone. Another judge, justice Mehr Chand Mahajan, who was from the north, once asked a newly appointed judge from south India to wear trousers on the bench, not a dhoti as was customary in the south. Likewise, some southern judges felt discriminated against.
A matter of faith
There has, of course, been a “Muslim seat” at the supreme court since its inception, i.e., one seat at the court has been reserved for a Muslim judge.
As the number of judges at the supreme court has risen over the years, the number of seats reserved for Muslims has also gone up.
In the 1960s, when the time came for PB Gajendragadkar to supersede Imam, a Muslim, because Imam was suffering from a mental infirmity, Nehru allegedly expressed concern about what Pakistan would think if a Muslim judge were superseded.
Justice M Hidayatullah was the one exception to the “Muslim seat” phenomenon—he insisted that he wanted to be appointed to the supreme court on his own merit, not on the Muslim seat, and he was accordingly appointed to the supreme court in December 1958, when Imam was still at the court.
Not caste in stone
In June 1983, justice Rajagopala Ayyangar told Gadbois that the backward community got all the advantages, that there were only a handful of Brahmins at the Madras high court at that time. Likewise, TV Balakrishnan, son of the 1950s’ supreme court judge TLV Ayyar, said that since 1960, appointments to the Madras high court were made on the basis of community and caste, that members of the forward community were discriminated against at that court and appointed late, and that there were just two Brahmins at the high court by June 1983. Balakrishnan said that the Madras High Court had not been appropriately represented at the supreme court because appointments to that court were made on communal considerations, not merit, and that consequently there were few competent judges at the Madras high court.
Justice AN Sen was disillusioned with the involvement of caste criteria in judicial appointments. He believed that if a scheduled caste judge was 40% competent, and a forward caste judge was 60% competent, then it would be fine to appoint the scheduled caste judge. However, if the scheduled caste judge was 0% competent, and the forward caste judge was 90% competent, then the scheduled caste judge ought not to be appointed. Sen was referring to the appointment of Justice BC Ray to the supreme court in October 1985 during the tenure of chief justice Bhagwati.
The other half
The first woman to be appointed a high court judge in India was justice Anna Chandy, who was appointed to the Kerala high court in February 1959 and served until April 1967. Chief Justice of India SR Das had recommended her appointment, and he mentioned this as an “achievement” at his farewell dinner while retiring from the court in September 1959. However, the first woman to be appointed to the supreme court was justice M Fathima Beevi, also a former judge of the Kerala high court, in October 1989. Since then, only a handful of women have served in the supreme court (justices Sujata Manohar, Ruma Pal, Gyan Sudha Misra, Ranjana Desai and R Banumathi). Chief justice Leila Seth of the Himachal Pradesh high court was the first chief justice of any high court in India.
Chief justice Chandrachud said that prime minister Gandhi urged him to appoint a woman to the supreme court, but at that time there were no candidates who were senior enough. He met one woman judge from a southern state in India who was very senior, but he did not think that she was competent enough, and had even heard that she used to sleep in court.
Judicial appointments started being overseen by the law ministry in the government instead of the home ministry, and ministers in the Indira Gandhi government thereafter started attempting to pack the court in order to overrule the judgment of the supreme court in Golak Nath. One of those ministers was S Mohan Kumaramangalam, cabinet minister for steel and mines. Kumaramangalam had been the advocate general of Madras who had appeared in Golak Nath, on the losing side, at the supreme court. Kumaramangalam openly advocated the doctrine that the ideology of judges must be considered while determining whether they were fit for appointment to the supreme court. He became bold about saying this while justifying the supersession of the three judges, JM Shelat, KS Hegde and AN Grover, after they had decided against the government in the Basic Structure case, where the court held that parliament did not have the power to amend certain “basic features” of the constitution. Though Kumaramangalam died in a plane crash in May 1973, Kumaramangalam’s legacy, said justice Pathak in 1983, was that the social philosophy of judges had begun to be considered while appointing them.
The government also rejected judges who were too independent-minded. For example, GP Singh, chief justice of the Madhya Pradesh high court, was recommended by chief justice Chandrachud for appointment to the supreme court…However, the government rejected this appointment. This was because, as chief justice, Singh had refused to recommend names for appointment to the high court which were suggested by a Congress (I) chief minister.