So far, we know why lawyers and judges turned down offers to become high court and Supreme Court judges. But at a more fundamental level, what were the criteria employed to decide whom to select for a judgeship in the first place? This chapter examines the qualities which were considered to be crucial for the quintessential judge in the 1980s. We will see that, above everything else, an effort was made to ensure that the Supreme Court was reflective of the diversity of India in terms of region, religion, caste and, to a far lesser extent, gender. Apart from diversity, the ideological leanings of the judge were important.
In the 1970s and 1980s, chief justices and governments considered the social and economic philosophy of judges, and even their political leanings, in order to decide whether they were fit for appointment. A person who even remotely identified himself with an opposition party was blackballed—this is what happened to Chief Justice M.N. Chandurkar of the Madras High Court, whose only offence was attending the funeral of and eulogizing an RSS leader.
We will also see that chief justices looked at the family background of judicial candidates—a person who came from a well-known family was considered an especially suitable candidate. In this matter, selecting a judge for the high court or Supreme Court, thought Gadbois, was very much like selecting a match for one’s son or daughter in an arranged marriage. The personal life of potential judicial candidates was also investigated, often by the government’s intelligence agencies. For example, a person was considered unsuitable if he was a ‘womanizer’ or taken to ‘drunkenness’. One wonders whether a candidate’s personal life ought to be taken into account in this manner for determining whether he or she is fit for appointment to the Supreme Court if these matters have no impact on the judge’s professional performance.
Of course, these were not the only criteria for judicial selection. 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. Many of the criteria for judicial selection discussed in this chapter continue to remain relevant in the present day. 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 to the Supreme Court 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 to the Supreme Court. 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. 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 S.K. Das lamented that the Supreme Court was ‘a zoo with all species’.
In 1958, the Law Commission (which included among its members Chief Justice M.C. Chagla of the Bombay High Court, who was a Muslim) in its 14th report strongly deprecated this practice of ‘communal and regional considerations’ which had ‘prevailed in making the selection of the Judges’, calling them ‘extraneous considerations’ and attributing them to ‘executive influence’ in the judicial appointments process.
There has been a steady attempt to ensure that the different regions of India are represented in the Supreme Court. 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 A.M. 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. Three Gujarat judges, D.A. Desai, P.N. Bhagwati and M.P. Thakkar, had retired from the Supreme Court in May 1985, December 1986 and November 1988 respectively, leaving Gujarat completely unrepresented at the Supreme Court. Likewise, Justice K.N. Saikia agreed that the fact that he was from the North-east ‘must have been’ a factor in his appointment to the Supreme Court in December 1988.
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 (probably judges like M. Patanjali Sastri, N.C. Aiyar, or T.L.V. Ayyar). 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 (probably either Aiyar or Ayyar) to wear trousers on the bench, not a dhoti as was customary in the south.
Likewise, some southern judges felt discriminated against. Justice Chinnappa Reddy said that his transfer from Andhra Pradesh to Chandigarh as a high court judge helped him, because no matter how good a southern judge was, he hardly got noticed in Delhi. Being a Chandigarh judge gave him visibility where it mattered. Justice A.P. Sen felt that Supreme Court judges ‘are a bunch of strangers, disparate elements drawn from distant parts of this vast subcontinent’. ‘We have nothing in common,’ he said, adding, ‘[we] can’t make friends, there is no sense of brotherhood, we come from different states, and we don’t have mutual respect for each other.’ Perhaps this was why the transfer of judges policy instituted later on was not an entirely misconceived experiment, as it sought to promote national integration. Under the policy in place at present, most Supreme Court judges serve as chief justices of a high court apart from the one in which they served as puisne judges. The Supreme Court judge of today is, therefore, more culturally integrated with his brethren from the different regions of India than his counterpart was in earlier times.
Excerpted with permission from “Supreme Whispers: Supreme Court Judges, 1980-90” by Abhinav Chandrachud, published by Penguin India.