The announcement of the Supreme Court collegium that it will exclude wannabe judges who have kith and kin as judges in the constitutional courts will boost the entry of first-generation judges. This will diversify the judiciary from its image as a staid old boys' club where fathers and grandfathers handed down the baton to their offspring. The example that springs to mind is the Chandrachud lineage, with the 16th CJI Y.V. Chandrachud’s record of over seven years as the head of the judiciary being unbeaten to date.
A large group of lawyers led by advocate Mathews Nedumpara had a grievance that first-generation lawyers are ignored when being considered for high court judgeship, along with the kith and kin of sitting or former judges of the high courts or the Supreme Court. This grievance found expression during a recent full court reference to pay homage to three former Supreme Court judges.
Due to this long-standing grievance, a Supreme Court judge who is a collegium member proposed that sitting or former judges' children who are lawyers must meet a higher benchmark for appointment as high court judges. This seems to be a more reasonable approach rather than the suggestion of the collegium eschewing considering the kith and kin of judges’ progeny from being elevated to the constitutional courts.
A collegium member opined it would be discriminatory to completely bar such candidates from being selected as judges during the selection procedure based strictly on merit and suitability. Litigation is getting more and more complex, which makes it imperative for the constitutional courts to find suitable talent. Many candidates who were overlooked were deserving cases.
Except for the 48th CJI N.V. Ramana, the last five CJIs came from distinguished lawyers’ families or were related to judges of the constitutional courts. The 50th CJI Dhananjaya Chandrachud undoubtedly had merit, although he was the son of the 16th CJI Y.V. Chandrachud. The present CJI Sanjiv Khanna is the nephew of Justice Hans Raj Khanna, whom Indira Gandhi superseded in 1977 because of his dissenting opinion in the infamous habeas corpus case where the majority of judges held the state could take away the life and liberty of any citizen.
The present collegium comprises the CJI Sanjiv Khanna, with Justices B.R. Gavai, Surya Kant, Hrishikesh Roy, and Abhay S. Oka. The collegium system of selecting judges was created in 1993.
A Kerala-based lawyer, Mathews Nedumpara, alleged this system “monopolized” appointments to the higher judiciary, where kith and kin, and “former and sitting judges of the Supreme Court and high courts, Governors, chief ministers, law ministers, celebrated lawyers, the elite” were favored. Nedumpara and his team have compiled an exhaustive chart with the names of judges and their kith and kin who were earlier judges, governors, or belonged to prominent families of lawyers and were selected for the higher judiciary.
The report mentioned previous appointments of over 88 judges from 13 high courts who were either born to a family of lawyers, judges, or worked under some legal luminaries. Nedumpara has declared the source of his information was the empirical data collected from the official websites of the Supreme Court and 13 high courts in the months of September and October 2014. If this is correct, the chart is revealing.
A fierce critic of the 46th CJI, Ranjan Gogoi, Justice Markandey Katju, divulged that in 2021, Gogoi’s daughter married the son of Justice Valmiki Mehta, a judge of the Delhi high court. Katju alleged there were serious allegations against Valmiki Mehta, which were found to be true after an inquiry by the then CJI T.S. Thakur. In March 2016, the Supreme Court collegium presided over by CJI Thakur recommended the transfer of Justice Valmiki Mehta to another high court.
Justice Katju alleged the government would implement such recommendations in a couple of weeks. But strangely, in this case, the government put the file containing the transfer recommendation of Justice Valmiki Mehta in cold storage for one year until CJI Thakur retired in January 2017. When a more amenable Justice Khehar became the CJI, the file was returned by the government to the Supreme Court (instead of forwarding it to the President of India for his signature).
The new collegium headed by the new CJI Khehar revoked the earlier recommendation to allow Justice Valmiki Mehta to continue as a judge of the Delhi high court. The total opacity within the collegium system provoked the then senior-most judge, Justice Jasti Chelameshwar, to boycott its meetings until its resolutions were uploaded on the official website. It was the 47th CJI Sharad Bobde who decided not to upload the reasons for transferring judges or not elevating those against whom there were serious allegations to save them from embarrassment.
Hence, we can draw inferences from the words “in the interest of the better administration of justice,” which figure as a reason for transferring a judge from one court to another. A judge of the constitutional court has to maintain a delicate balance between intelligence, sobriety, diplomacy, and astuteness to do justice within the narrow confines left to the judiciary so that he is not accused of overstepping into the domain of the legislature.
By the time a high court judge rises up the seniority ladder to be considered for elevation as a chief justice of a high court or for direct elevation to the Supreme Court, his performance speaks for itself and is easily seen by the collegium members. The 50th CJI Dhananjaya Chandrachud announced that a cell had been set up in the Supreme Court to monitor the quality of judgments delivered by high court judges to evaluate how suitable they were for elevation to the Supreme Court.
The transfer of Justice Devendra Kumar Upadhyay as chief justice of the Bombay high court to the Delhi high court means he still falls within the zone of consideration for being elevated to the Supreme Court as he will retire on 16th June 2027. Normally, chief justices of the Bombay high court are elevated to the Supreme Court unless the collegium opposes this for reasons they will not disclose.
If the collegium refrains from appointing the kith and kin of judges as judges, talent will overtake nepotism within the judiciary.
Olav Albuquerque holds a Ph.D. in law and is a senior journalist-cum-advocate of the Bombay high court.
