“They should live all together on an equal footing; merit to be their only road to eminence, and the disgrace of evil, and credit of worthy acts, their one measure of difference between man and man.”
- Plutarch, Parallel Lives, (100-125 C.E.)[i]
Since the inception of basic forms of governance, the basis of power holding has always been challenged, debated upon and fought over. As the concepts of democracy, equality and transparency evolved, the process of power holding changed from the discernment of a small group of people to more accessible, universal and equanimous indices. Institutions, mechanisms and standards were thus developed to cater to a level playing field and a formidable system was laid down governing the power-holding process,. However, there exists a lacuna in establishing a suitable basis for the same.
The Constitution of India[ii] has rightfully established the process of power-holding, reflective in the autonomous functioning of the three primary organs of governance. However, the Indian Judiciary has always been a fiercely independent institution owing to the principles of constitutionalism enumerated through its framework. Based on the same framework, the judiciary has developed an overarching stance on the Judicial independence by construing it to mean ‘Judicial exclusivity, opacity and arbitrariness’ thereby blatantly obliterating the procedure established by the constitution, owing to a poorly defined basis.
Moreover, Judicial Power Holding is mainly signified through judicial appointments, elevation and promotion. The objective criteria of the basis of appointments and elevation (i.e. seniority) limits judicial, legal and moral discernment and favours luck over other factors of equality. The subjective criteria of basis (i.e. merit), on the other hand, either gives way to arbitrariness or has a mere token status on paper.
This paper thus seeks to critically analyze the current basis of judicial appointments and elevations and thereby propose a more wholesome model that limits arbitrariness and attempts to create a systematic basis, reflecting our ideals of our governance.
Seniority as a basis of Elevation – A curtailment of discernment and a Luck based factor but the only option?
Judicial appointment is the representation of judicial commitment to equality, unbiasedness and adroitness. It not only has a considerable impact on dynamics between all three organs of governance but also reflects public faith in the judiciary.[iii] Seniority as a primary basis for elevation not only casts a doubt on judicial prowess of the judges but also makes the entire process seem like a hereditary dynasty in public eye.
Astuteness and skill aren’t always incidental to age and seniority. In fact, there have been ample instances, such as in Congress Syndicate[iv], where seniority has curbed fresh perspective on important matters, making such institution a monochromatic in thought.
Often referred to as the Old boys’ club,[v] Judiciary has largely been dominated by a very specific section of the society. Seniority, is an underlying reason for both, the lack of diversity and meaningless justifications regarding the same. The importance given to seniority in collegium, cases and even benches, leads to lack of representation within almost all organs of the judiciary. It leaves little room for demarcated promotion of certain sections of the society in judiciary such as Women, Legal Scholars, Transgenders and so on[vi]. As a result, whatever representation there is of these sections, is either based on sheer luck or is token representation in ways, as stated by Justice Sabrina McKenna of Hawaii Supreme Court.[vii]
While the second judges’ case[viii] grants ‘judicial primacy’ in matters of appointment and elevation, seniority as a basis casts a doubt on such principle itself. Since seniority is an objective standard with no dimensions to it beside a mere number, it limits judicial discretion and primacy with respect to appointments and thus to a great extent renders the entire system ineffective. It construes discretion to be a nod in consonance to the seniority principle and thus, takes away the power of effective appointment from judiciary as well.
The Seniority rule also leads to frequent changes in appointments due to the upper age limit. This not only disrupts court functions as some judges only get to stay in for mere days, such as Justice K.N. Singh whose tenure lasted 17 days, but also puts a large burden of basis of ‘luck of the birth month’[ix]. As a result, this golden rule does away with any decent chance of level playing field that the judiciary could offer.
Seniority, thus breaks down several pillars of constitutionalism, principles of natural justice and laws of equal opportunity in order to adhere to a mere judicial norm and convention, the genesis of which is unknown, for it is nowhere to be found in the Indian Constitution. While one may argue that the third judges case[x] offers an alternative to the seniority principle, it is important to ponder upon the fact that whether or not should a flawed norm be followed at all, just because it gives a token objective basis, which is flouted as per will, and used as a justification to refute equality in the higher chambers of Justice in India.
A worthy alternative to the seniority norm- Merit?
While the basis of Seniority garnered a fair bit of criticism from within and without the judiciary, the Supreme court clearly laid down the extent of merit and seniority in second[xi] and third judges cases[xii]. The third judges case expressly stated the two conditions under which merit is a consideration in judicial appointments. Firstly, with respect to the ‘at least meritorious condition’ wherein the Supreme Court noted – “Obviously, this factor applies only to those considered suitable and at least equally meritorious by the Chief Justice of India, for appointment to the Supreme Court.[xiii] Secondly, when the court has noted “Unless there be any strong cogent reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court”[xiv].
The Supreme Court has thus, repeatedly and lucidly stated that Seniority is the primary basis, and ‘merit’ is not an alternative but is either a basic consideration factor under seniority, where seniority is subject to basic merit, or an additional measure for appointment under ‘strong cogent reasons’.
Apart from the fact that merit has less validity as an alternative in judicial appointments, it is often misconstrued to serve the needs of an elite section of the society, due to its vagueness. In no statute, case or precedent does the Supreme Court mention the extent and the components of such ‘outstanding merit’, neither does it mentions any specifications regarding the process and application.
Since the judicial appointment process hardly requires any justification or reasoning, ‘merit’ that limits the rigidity of seniority, instead of being an equalizing basis, becomes the very basis for all forms of bias, unfairness and unhealthy supersession. If one looks at supersession cases of the past, it is safe to say that none analyzed merit, but were plagued by political, bureaucratic and opportunistic motives.[xv] This leaves ‘merit’ as a mere token on a paper, instead of it being an effective basis that replaces Seniority, thereby overlooking an age old norm not only when its politically dire, but when it is meritoriously worthy to be so, just like in the army or civil services.[xvi]
While seniority and merit do not establish a suitable, lucid and fair basis for judicial appointments, they have laid down the foundations for the same. While seniority utterly fails to encapsulate the spirit of constitutionalism, merit, in its ideal form does. Merit, if extrapolated precisely, should be the basis of power – holding, in a democracy like ours. It is thus important to set standards to this basis of merit, akin to the ones as proposed by Section 12(2) of the NJAC bill[xvii] that gives directives for merit-based appointment, or alternatively the precise discretionary pointers[xviii] highlighted under several foreign statutes such as the AJS, ABA[xix] and the South African Constitution through its additional criteria[xx]. Some of the key takeaways from these statues would entail a merit-based selection, wherein the judges’ independent nature and spotless integrity is reflected through a reputable conduct. In order to ensure such independent nature and commitment to judiciary, a sworn statement can be sought from the judges, which would contain a comprehensive list of clients and professional associations and their stakes in such entities. Moreover, the ability of striking a balance between the level of productivity and quality of cases needs to be preferred to deciding of landmark decisions. Overall, the elected judges must elicit public confidence through the impact of their judgments in order to comprehensively evaluate merit.
Judicial Appointments, Elevations and Promotions signifies a window into the judiciary’s ethics. The commitment of the judiciary towards these principles of equality cannot be tainted enough to cast a doubt on the entire justice delivery system. Thus, we as a society need to be assured that the just morals that our courts guard with great penchant, are timeless, universal and eternal.
[i] Hanover College History Department, Plutarch Parallel Lives, available at https://history.hanover.edu/courses/excerpts/211plu1.html.
[ii] The Constitution of India, 1950.
[iii] Madan B. Lokur, India’s Judiciary Is Facing An Increasing Lack Of Trust By Public, 13th January, 2020, available at https://www.outlookindia.com/magazine/story/india-news-indias-judiciary-is-facing-an-increasing-lack-of-trust-by-public/302545.
[iv] Outlook, ”Syndicate blocking young Congress leaders from rising’’, 28th October, 2019, available at https://www.outlookindia.com/newsscroll/syndicate-blocking-young-congress-leaders-from-rising/1650271 (Last visited on 14th August, 2020).
[v] Prabha Sridevan, Judiciary, an old boys’ club, 30th March, 2016, available at https://www.thehindu.com/opinion/op-ed/judiciary-an-old-boys-club/article8410065.ece.
[vi] Abhinav Chandrachud, Age, seniority, diversity, 3rd May, 2013, available at https://frontline.thehindu.com/cover-story/age-seniority-diversity/article4613881.ece.
[vii] Economic Times, India has token representation of women in higher levels of judiciary: Hawaii Supreme Court judge, 7th April, 2019, available at https://economictimes.indiatimes.com/news/politics-and-nation/india-has-tokerepresentation-of-women-in-higher-levels-of-judiciary-hawaii-supreme-court-judge/articleshow/68761699.cms?from=mdr.
[viii] Supreme Court Advocates on Record Association vs Union of India, (1993) 4 SCC 441.
[ix] Malcolm Gladwell, Outliers – The Story of Success (2008).
[x] Special Reference No. 1 of 1998, RE, AIR 1999 SC 1.
[xi] supra note 9.
[xii] supra note 11.
[xiii] Id., at ¶8 (4) (per S.P. Bharucha J.).
[xiv] Id., at ¶11 (3) (per S.P. Bharucha J.).
[xv] Dhananjay Mahapatra, Supersession of judges: Indignation of activist-lawyers, ex-judges very selective, 21st January, 2019, available at https://timesofindia.indiatimes.com/india/supersession-of-judges-indignation-of-activist-lawyers-ex-judges-very-selective/articleshow/67617254.cms.
[xvi] R.K Raghavan, Seniority v. Merit, 19th December, 2008, available at https://frontline.thehindu.com/columns/article30198667.ece (Last visited on 14th August, 2020).
[xvii] Judicial Appointment Commission Bill, 2013, §12(2).
[xviii] Centre for Law and Policy Research, Recasting the Judicial Appointment Debate, (Working Paper No. 1/2014).
[xix] American Bar Association Coalition of Justice, Judicial Selection- The process of Choosing justice, (2008), available at https://monsieurdevillefort.files.wordpress.com/2014/12/judicial_selection_roadmap-authcheckdam.pdf.
[xx] Judicial Service Commission 2010 SA (South Africa).
The author is a 2nd Year student at NUJS, Kolkata.
Image Credits: theleaflet.in