There’s nothing legal about it

The law ministry recently notified the appointments of four judges, justices Hemant Gupta, R Subhash Reddy, MR Shah and Ajay Rastogi to the Supreme Court within 48 hours of the Supreme Court Collegium recommending them to the government.

Though it appears to be a welcome move, the modus operandi of the government, vis-a-vis judicial appointments, looks doubtful.

The Union government was under pressure early this year for resisting Justice KM Joseph’s elevation to Supreme Court on the ground that in the All India High Court judges’ seniority list, he was placed at serial number 42 and there were presently 11 chief justices of various high courts who were senior to him.

A brief survey of past appointments makes it evident that seniority either in appointment to the post of chief justice of the high courts or to elevation from high courts to Supreme Court, have only been given little weight.

Justice JR Mudholkar, a judge of the Bombay High Court and number 7 among permanent judges of the various high courts was elevated to the Supreme Court (on 3.10.1960) in preference to all the chief justices of the high courts. Justice RS Bachawat was at No. 2 in the list of permanent judges of various high courts when he was appointed to the Supreme Court (on 7.9.1964) in preference to the then chief justices of the high courts. Justice GK Mitter, No. 8 in the list of permanent judges of the various high courts was appointed to the Supreme Court (on 29.8.1966) bypassing three judges senior to him at the Calcutta High Court, including the chief justice.

Likewise, Justice CA Vaidialingam was appointed to the Supreme Court (on 10.10.1966) when there were two other judges senior to him in the Kerala High Court, including the chief justice. His position in the list of permanent judges of various high courts was number 23. Justice AN Grover was elevated to the Supreme Court on 12.2.1968 when there were two other judges senior to him in the Punjab and Haryana High Court, including the chief justice and his position among permanent judges of the various high courts stood at 39.

Justice AN Ray, who was number 30 among permanent judges of the various high courts and junior to three other judges in the Calcutta High Court, including the chief justice, was elevated to the Supreme Court on 1.8.1969. As was Justice KK Mathew to the Supreme Court (on 4.10.1971) when there were three other judges senior to him in the Kerala High Court, including the chief justice, and his position among permanent judges of the various high courts was number 70.

Likewise, there are many instances that can be narrated. Justice YV Chandrachud was at number 19 in the list of permanent judges of the various high courts and junior to two judges of his own high court, including the then chief justice, when he was appointed to the Supreme Court on 23.8.1972.

This trend has continued. Justice Ranjan Gogoi was elevated to the Supreme Court (on 23.04.2012) before his Supreme Court colleagues justices Madan B Lokur, Kurian Joseph, AK Sikri, SA Bobde, RK Agrawal, NV Ramana, Arun Mishra, AM Khanwilkar, AM Sapre and DY Chandrachud, who were all senior to him.

Justices Deepak Gupta and Naveen Sinha were both appointed Supreme Court judges on (17.02.2017) over the heads of 30 high court judges senior to them as of now. At the time of their appointment on February 17, 2017, they had around 40 high court judges senior to them in various high courts.

Similarly, Justices S Abdul Nazeer and Mohan M Shantanagoudar, both were elevated to Supreme Court (on 17.02.2017) in preference to 20 high court judges senior to them.

The most recent appointments of justices Hemant Gupta, R Subhash Reddy, MR Shah and Ajay Rastogi who stand at numbers 4, 5, 17 and 25 respectively in the all-India combined seniority of high court judges, has once again established that seniority has been given the go by and the choice has always been made in the name of quality and a judge’s worth on the bench.

Judicial appointments seemed to be influenced by political preferences across the world, particularly in the UK, US and India. Historically in UK, ruling political parties make every effort to appoint judges who share their ideology, and who in turn, begin to staff junior and senior ranks of the judiciary with political allies.

Similarly, politics plays an important role in the appointment of judges in the United States of America. Political influence in judicial appointments in India has a long history. George H Gadbois Jr, in his book Judges of the Supreme Court of India (1950-1989), gives crucial insights about the role of Chief Justice of India and the sway of prime minister in such appointments.

Appointment of four judges within 48 hours of collegium’s recommendation does not unveil government’s concerns towards judiciary. It rather postulates that these four judges fit in within the schematic framework of the Modi government.

The writer is associate professor of law, NLU