How the appointment of two new Supreme Court judges has thrown the institution out of order

The elevation of two judges to the overburdened Supreme Court should have been a welcome occasion. With the retirement of three judges in 2018, the strength of judges in the apex court came down to only 26 against a sanctioned strength of 31 judges.

However, the choice of judges for elevation to the apex court has raised both eyebrows and question marks.

Unlike last year, when it was the government which was questioning the collegium’s recommendations, which practically unified the entire legal fraternity against ‘encroachment’ by the political executive, this time, the opposition has been purely internal.

What we are seeing now is the all too human side of the exalted judiciary, the last bastion of the ‘pure and incorruptible’.

What happens when the human side of the high office becomes the subject of speculation and gossip?

According to highly placed sources, the Supreme Court collegium met on December 12. The collegiums then included CJI Ranjan Gogoi, Justice Madan B Lokur, Justice AK Sikri, Justice SA Bobde and Justice NV Ramana.

Media reports claimed that two judges who are Chief Justices of their respective state High Courts and high up in the all-India seniority list had been shortlisted for elevation to the apex court. The ‘shortlist’ however was apparently never signed by the five judges.

Congratulatory messages were conveyed to the two judges by many people.

Then, the winter holidays started and Justice Lokur retired.

On January 10, the resolution passed by the new collegium said that it had found “some new material” due to which it had decided to “take a fresh look” at the decision taken in December. It recommended two other judges, one at number 21 in the all-India list, and the other at number 33 for elevation to the Supreme Court.

On the day the deliberations took place, a sitting judge of the Supreme Court, who was consulted by the collegium, strongly objected to the elevation. The ‘secret communication’ from this judge was shared with the media — he pointed out that a supersession of so many judges will not go down well with the judiciary and the bar.

The uproar was immediate and targeted only one of the two choices — formerly number 33, since his elevation would supersede four more senior judges of the same high court.

As predicted, the lawyers as well as judges came out in public to raise their voices.

While a retired high court judge called this a “historic blunder”, three former CJIs lashed out at Justice Gogoi for failing to “uphold the tradition” of respecting seniority, and expressed “shock” at the “sorry state of affairs”.

TV anchors asked — why?

Experts discussed how supersession of senior judges has been frowned on since the 1973 decision of the Indira Gandhi government to appoint Justice AN Ray instead of Justice KS Hegde as the CJI, or to supersede Justice HR Khanna in 1977. Experts also talked about how the judiciary often disregarded all-India seniority, and pointed out examples of judges not in the top 10 of the all-India list being elevated. Multiple editorials called the collegium and the CJI into question. 

A front page article in The Times of India on Friday, January 18, gave the possible ‘reasons’ for the collegium’s decision. It included the ‘anger’ expressed by the CJI over the ‘leak’ of the names of the candidate judges before the decision was finalised.  

The gossip in the court corridors has been both vicious and malicious.

There are whispers of nepotism and of rumoured ‘personal rivalries’ between judges. Fingers have been pointed at a rumoured “strained rivalry” between one of the December candidates and a close relative of one of the collegium members, with gossips claiming that this may have played a role.

Others tell stories of a ‘favoured’ candidate, whose path to the apex court has been made easier with the supersession. Yet others talk of allegations regarding the ‘desirability’ of the candidate judges, with gleeful tales of alleged past misbehaviour. 

On Friday, the strength of SC judges rose to 28, with three posts still vacant. 

Professor Upendra Baxi, in an article on the 1977 Supersession of Justice Khanna, had written, “The court almost ceased to be an institution and became an assembly of individual judges due to the opposition within the judiciary to Chief Justice Baig.”

The Indian judiciary is no stranger to storms, but this time, the kind of allegations and speculations that are being raised may well lower the ‘majesty of the court’ in the eyes of its own members.

The people of India have long been wary of the intense internal backbiting in the world of politics and the bureaucracy.

Now, the exalted office of the Supreme Court is being laid open to the same scrutiny.

Also read: Live streaming of SC cases: Justice must be seen to be done, and now, we can all watch it