A Self Selecting Elite - By Ashok Malik

The higher judiciary today precludes an MS Dhoni, an outsider who rises in the ranks

At Independence, Indian institutions were dominated by a small elite.A key success of the republican project in the past 70 years has been the widening of this social base.The legislature is no longer the preserve of old aristocrats; it has room for those from a very humble background. The upper echelons of the army represent sons of poor peasants and former non-commissioned officers. The civil service reflects the diversity of India, both vertical and horizontal.

The one institution that has escaped this widening is the higher judiciary . It is important to understand this relative insulation while discussing the current crisis in the judiciary . Equally, this clash between democratisation and a selfperception of elitism cannot and must not be interpreted as a provocation to dilute standards in the judiciary , bring in a culture of reservations and so on.That is not the point at all.

The fact is the higher judiciary has become a sanctum sanctorum into which only the initiated or those in the networks of the initiated can get entry .Some would trace this to the 1990s judgment whereby the Supreme Court set up the collegium of judges, which now makes appointments to the higher judiciary and has senior judges choosing their successors. Actually , that collegium ossified a delicate mechanism going back to the earliest years of the Republic.

Writing on the process of judicial appointments in the 1950s, Granville Austin in “Working a Democratic Constitution“ refers to an exchange of letters in 1957 between then home minister G B Pant and then Law Commission chair M C Setalvad. Pant cites two relevant examples. First, he lists 41 judges appointed to high courts since he became home minister in 1955: “There was not a single case among them where the final result did not follow the advice of the Chief Justice of India.“

Setalvad replies alluding to political interference in the pre-1955 period. Pant responds strongly . “Pant enclosed,“ Austin writes, “a list of high court appointments from March 6, 1950, through 1954. He pointed out that, with two exceptions, all the 75 judges appointed during the period had been agreed to by the high court chief justice ... and the Chief Justice of India.“

Broadly , this acknowledgement of the primacy of the leadership of the judiciary in making judicial appointments ­ but doing so without disturbing the institutional balance ­ has been there from the 1950s. It was mangled only in the 1970s by Indira Gandhi's recklessness, in which sections of the judiciary colluded. What the collegium system, its overreach and its implications have done is seek to punish all governments for all times to come for Indira Gandhi's actions in the early 1970s.

A corollary of the collegium has been self-selection and its twin, in-breeding. In practice, the pool for choosing judges is both narrow and shallow. It begins when personal connections lead to placing children and associates of influential lawyers and judges in chambers of senior lawyers. The naming of senior advocates, so controversial in certain high courts, is done from among those lawyers. As a next step, the selection of judges to the higher judiciary , with the transactionalism and trade-offs that have been hinted at by judges themselves, is confined to a predetermined group that has already had the advantages of the previous stages described above.

It is possible for a rank nobody like M S Dhoni to emerge from lower middle class Ranchi and captain the Indian cricket team. Had Dhoni been an exceptional graduate from a Ranchi law college, however, how easy would it have been for him to aspire to become a judge in the Supreme Court?

If that sounds trivial, consider the near absence of promotions from trial and district courts to the higher judiciary .The hero of the Emergency and valiant dissenter in the Habeas Corpus case, Justice H R Khanna, began as a district judge in Punjab. By dint of merit, he made it to the Supreme Court and was (till superseded) expected to take the Chief Justice's seat. Today , is that route realistically available? How would the current system of self-selection have treated the candidature of District Judge H R Khanna?

The obsession with appointments ­ as well as an attendant tendency for certain verdicts and obiter dicta to be either driven by media headlines or driven towards them ­ has crowded out muchneeded debate about reform in the judicial and legal system. For instance, there is recognition that a generalist civil service is now unequal to the complexities of a sophisticated and globalised economy .What about a generalist judiciary?

The dynamism and evolution in business and trade law, in financial markets, intellectual property , technology , the digital sphere and internet law and governance, to quote but some examples, necessitate a re-imagining of the higher judiciary and greater room for judges' in-service education and specialisation. The fact that Singapore is such a favoured arbitration destination for disputes related to investments in India is an example of the gap the Indian judiciary has allowed.

Unfortunately little of this is being discussed and the focus is entirely on appointments. As such, despite his unquestioned integrity and rich professional and personal experience (son of a distinguished judge who also served as a minister and governor), Chief Justice T S Thakur's term is likely to end in January 2017 with a disappointing legacy and a wistful sense of underachievement. Hopefully his successor will signal a renewal.

(The author is distinguished fellow, Observer Research Foundation)

(Source- TOI Hyderabad)