Saturday, September 17, 2016

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)


  1. "The upper echelons of the army represent sons of poor peasants and former non-commissioned officers."
    Very strange and unbelievable,from where Mr.Ashok Malik could gather such authenticated data.He should vouch for it

  2. MS Dhoni will become judge of supreme court,Tendulkar will become president of India,very nice

  3. Chief of Army staff is son of a @rengana51...what more proof u need. There are 4 ltgens today whos father had a very bumble backgroung. Many Maj gens a Brigadiers i know who are from the family of farmers and unskilled workers. Mr Malik is bang on target...chashma hattaiye nafrat wala jisnei aap ko kast liya hei...get balanced please.

    1. I apologise,DEV saab I do not know about it.But during my tenure (1960s), I witnessed the other way round."Officers son officer"-. Leave it alone.But one thing I can not understand is that ,if they are all from such a humble back ground,as you said,then why so much hangaama in projecting our problems to RM and PM.They top brass themselves knew about the pathetic status of our jawans,they themselves could project it to the higher ups.What prevents them in helping jawans and pensioners.Why don't they speak out?

    2. karunakaran a ex havildarSeptember 17, 2016 at 5:27 PM

      one or two isolated cases of JCOs sons are officers, take overall selection of officers category, it is there still dynastic aspect inherited and maintained from british legacy.
      I am an NCO my son got selected in SSB then he refused to join quoting reason that your pension is very meagre and not enough to pull on our life

      now he is abroad, if the chiefs are true to the principle and ethos, they should take other rank matter at first, even without informing the agenda they met the DM and presented the list of anomaly

    3. You are right mr renganath I agree with you

  4. Dear rengana51@

    Problem is that govt hardly listens to chiefs as they are taken as obeying machine and as defence forces are totally committed to nation...any govt choosen by our people has the sanction of people Chiefs have their task cut out...they cant take a stand beyond a limit..else it will look defiance and that is against not only to the loyalty to the flag but also to the ethoes of our brave forces. Chiefs are not boxers that they can knock down every thing if they are not listened to. In democracy babus are always strongest because its they have all administrative and financial control and can twist things beautifully in front of PM,FM etc that they go speachless and even if they want to do something they cant do. So blaming our chiefs is not desired. Our retired jawans are too emotional and think that when a CO can do so much in a unit why not such a big officer like generals can do and they just have no idea as to how the govts are run and thus start talking ill of officers which is very hurting and against the fauzi good discipline and ethos. Many here have called me names and have called me a a bad officer iny serving days but how can i reply to these stupidities when i know that i had been fighting for my jawans each and every day but does it make a difference to them if i say so. Also will it make any difference to them if i tell them that i alsobwas a jawan for 7 years before i took commission and that i have seen both lives and i respect both. No officer will ever criticize his jawans because we always loved them and still do from bottom of our heart but for few coins a few misguided people talk filth here and take out the frustrations of their lives on officers. Officers have nothing to do with their sanction of less money by Govt and also govt has given nothing so special to officers either. Yes i say openly that MSP and all other field allowances should be equal to all ranks and should be done but our jawans do not understand that jawans are more in number and govt knows that giving the same rate to all will entail huge expenditures and hence they give it as per basic pay......officers will be happy if all Jcos and jawans get same allowances.....i can say this with authority. In fauz today also there is a close relation between officers and jawans....which is no where else available. Lets all be proud of that fact and desist from mudslinging.

  5. @ karunakaran....childish this dear. Far from truth. It does not happen.

  6. Dev Saab,thanks for the valid points.I agree with you 99% of what you said.But I have little reservation in your last statement that "but our jawans do not understand that jawans are more in number and govt knows that giving the same rate to all will entail huge expenditures and hence they give it as per basic pay".It means you agree with me either a jawan or an officer undergoes same degree and level of hardship.But just because officers are less in count ,they are paid more and jawans get less is quite illogical and not based on humanitarian approach.When the country can not afford to spend for rendering invaluable service by a jawan ,then it is matter of high level dispute.Thanks God you did not ask me a question(as I was asked while in service,by a DESHPREMI officer)that who invited me to join armed force.)which is another time bound matter.Like Mr Karunakaran ,my son also who had watched me very close my defence life was interested to join my fold.When I left service he was 9 years old but quite matured to understand the life of a sailor and an officer.He was extra ordinary brilliant.I asked him to decide for himself.Result-He is a Scientist in a research Institute, one of the top 10 ranked universities in USA.He managed himself with all educational monetary assistance he got from the universities he studied.Well I wish happy and amicable solutions to our problems.

  7. Wish u and your son wonderful life. God bless! I dont wish to add anything more to what i said above