The swift elevation of two Supreme Court judges is raising more questions about probity

If last year’s press conference by four senior-most judges of the Supreme Court, including current CJI Ranjan Gogoi, had compromised the pristine institutional worth of the judiciary over its capacity to be transparent and neutral, the latest elevation of two Supreme Court judges has further aggravated that issue. For while that dealt with the system of allocation of case files, which some senior judges felt were not as part of due processes and seemed opaque and motivated, this calls into question the wisdom and functioning of the collegium. Many questions remain with regard to the out-of-turn elevations of Justice Dinesh Maheshwari, Chief Justice of Karnataka High Court, and Justice Sanjiv Khanna of Delhi High Court to two of the five vacancies in the Supreme Court. Technically, there is nothing wrong with supersession based on weightage to merit and excellence of capabilities, something which has been honoured before and has had precedents. But when the supersession concerns 32 judges, then questions are raised. Like why the collegium, headed by none other than Gogoi, overturned decisions taken by it in December about elevating two other competent names and the government rushed to appoint the new nominees? And why five names were not cleared together instead of a staggered format? Agreed, internecine matters pertaining to the highest court of the land must be kept within a certain framework of civility, decorum and not laid open to public speculation but considering the rumblings are now galloping with a frequency and the judiciary is in the end the most public of institutions, a fair amount of procedural transparency is but expected.

 Naturally, everybody would want to know why 32 judges, who have been considered good enough for their courts, were overlooked en bloc and had there been a fair bit of reasoning, nobody would be attributing ulterior motives to the process of appointment. Also, it would not have demoralised Chief Justices and judges of High Courts, who have worked hard to ascend tiers of seniority, to suddenly find that criterion being set aside arbitrarily instead of being aligned with merit as it is with all other public services. Such ambiguity leads to theories of pressure from the executive or charges of favouritism and encourages more speculation about the impartiality of a verdict.

Although the Congress may be joining the demand for transparency now, fact was judicial appointments were known to be politically expedient through the 70s, the establishment patronage mattering more than individual capability. That process has come a long way since with ex-chief Justice Dipak Misra making it mandatory for the collegium members to list their reasons for choosing candidates in the public domain, thereby streamlining the selection process. Perhaps it is the objective questionnaire of ticking off and crossing boxes on a judge’s reputation, integrity and appreciation that makes this exercise a numerical rather than a comparative assessment of strengths. Though the Supreme Court rejected the National Judicial Appointment Commission, arguing how widening the purview of selections by including politicians and civil society notables violated the constitutional requirement of separating the judiciary and maintaining its independence, the collegium, as it appears today, is clearly at risk of being seen as an oligarchical rather than a fair entity. The Supreme Court, by virtue of being at the peak of the judicial pyramid, has to appear just and inspire public confidence in its probity, not fuel public doubts.