Criteria that were never conceived in the Constituent Assembly now determine who gets to sit on India’s apex court. Each of these unwritten qualifications, age, seniority, and diversity, is problematic in its present form. By ABHINAV CHANDRACHUD Frontline May 3 2013
Broadly speaking, India’s Constitution provides that there are three categories of individuals considered eligible to be appointed judges of the Supreme Court—High Court judges with five years’ experience, High Court lawyers with 10 years’ experience, and “distinguished jurists”, that is, well-regarded law professors. An outsider reading India’s Constitution might mistakenly guess that the court has historically had a healthy mix of judges from each of these three categories. However, the recruitment of judges to the court between 1950 and 2012 tells us that words written down in a constitution rarely reflect reality. Over the past 60 years, the qualifications necessary to be appointed to the Supreme Court of India have silently changed though the “law on the books” remains the same.
Consider that no full-time law professor has ever been appointed to the Supreme Court. “Distinguished jurists” could not be appointed to the Federal Court of India under the Government of India Act of 1935, but, inspired by the United States Supreme Court and the International Court of Justice, the framers of the Constitution wanted the Supreme Court of India to have at least one “jurist of great reputation” on it.
However, though some of the court’s judges have gone on to write reputable doctrinal treatises on law over the years, no full-time legal scholar has ever made it to the Supreme Court. Further, between 1950 and 2012, only four lawyers (S.M. Sikri, S.C. Roy, Kuldip Singh, Santosh Hegde) were directly appointed to the court, one in each decade barring the 1950s and the 2000s. In short, despite the fact that India’s Constitution permits three categories of individuals to be appointed to the court—judges, lawyers, and academics—only one of these categories, High Court judges, has any significance.
Then again, despite what the Constitution says, being a High Court judge with five years’ experience is no longer enough. A High Court judge now has to accumulate three baseline qualifications before he can be considered eligible for elevation to the Supreme Court—age, seniority, and diversity.
The first of these is that a person cannot be below the age of 55 when he is appointed to the Supreme Court. This was not the rule in the 1950s, 1960s or 1970s, but since the 1980s, no judge has been appointed to the Supreme Court of India before reaching the age of 55. This is no coincidence but a consciously followed, unwritten rule. Interestingly, at the time of the framing of the Constitution, some external commentators had suggested that only those above the age of 55 should be appointed to the Supreme Court, but this suggestion was expressly rejected by the constitutional adviser to the Constituent Assembly of India, B.N. Rau, who said that it would prevent the President from appointing a person of “outstanding merit” to the court if he was under 55.
The ostensible purpose of the age rule is to ensure that judges appointed to the Supreme Court are sufficiently “mature” for their office, which is a little far-fetched. After all, the great M.C. Chagla was only in his forties when he became the first Indian Chief Justice of the Bombay High Court, and he was anything but “immature”. Going by the age rule, even Barack Obama would not be considered “mature” enough.
Since all Supreme Court judges retire at the age of 65, the age rule ensures that the maximum tenure that any judge on the court can have is 10 years, though most tend to serve on the court for much less time. On average, the Indian Supreme Court judge serves in office for approximately five years—an incredibly short length of time when compared with other systems. The U.S. is a bad point of comparison because its judges have life tenure and serve in office for overwhelmingly long periods of time, but consider that countries such as Germany and South Africa require their judges to serve in office for a fixed non-renewable term of about 12 years—more than twice the average tenure in India. The short tenure of the Indian Supreme Court judge has far-reaching policy implications for the country. Since the law is not an autonomous body of neutral principles, and doctrines change according to the individual value choices of different judges, the Supreme Court of India may articulate rules less consistently or predictably on account of the “revolving door” nature of its judgeships. The short tenure on the court can also affect the quality of its judicial candidates, making a Supreme Court judgeship seem less attractive for top-ranking senior lawyers who would rather continue their lucrative careers into their seventies and eighties.
The next unwritten rule is that a person will only be considered eligible for appointment to the Supreme Court if he is a High Court Chief Justice or, in exceptionally rare cases, a very senior High Court judge. Again, like the age rule, the High Court Chief Justice rule is of relatively recent vintage. Approximately 88 per cent of the judges appointed to the court in the last decade were former High Court Chief Justices—overwhelmingly higher than in any previous decade. (The rest were either acting High Court Chief Justices, or senior High Court judges on the verge of being appointed High Court Chief Justices.) One of the benefits of picking a Supreme Court judge from amongst a pool of existing High Court Chief Justices is that these judges are tried and tested: their capability as judges can be objectively measured, their ethics and integrity may be known, they may already have been investigated by intelligence agencies, and they have considerable experience in deciding cases. However, this policy is also deeply problematic. Amongst other things, the post of High Court Chief Justice, which was once considered by some to be more prestigious than even a Supreme Court judgeship, may be reduced to the status of a temporary pit stop on the journey to the Supreme Court. The High Courts of India stand to lose if their Chief Justiceships are seen as having merely instrumental, rather than intrinsic, value.
The final unwritten rule is that judges on the Supreme Court must reflect India’s regional and demographic diversity. Not more than two (or in rare cases, three) judges belonging to the same High Court serve on the Supreme Court of India at the same time. What this means is that if there are three judges from, say, the Karnataka High Court serving on the Supreme Court at one time, a fourth Karnataka High Court judge will not be considered eligible for appointment to the court no matter how exceptionally qualified a candidate she may be.
The Supreme Court has grown more geographically inclusive with every passing decade, though a large share of its seats now go to Delhi, which is not even a State. Delhi gets a minuscule share of seats in Parliament, so the cynic might ask: why does it get a share equivalent to (or sometimes higher than) the almighty States of Maharashtra, Tamil Nadu and Uttar Pradesh on the Supreme Court of India? The intuitive answer is that the Delhi High Court is now one of India’s premier High Courts, and Delhi itself is one of India’s busiest commercial centres. However, the cynic could always argue that Delhi gets such a high share of seats on the Supreme Court because its judges are most geographically proximate to (and therefore visible to) the Supreme Court collegium.
In theory, ensuring “diversity” on a court is a laudable aim—“inclusive” courts are considered more legitimate the world over. For example, diversity in some form has always been an important criterion in the judicial appointments process for the U.S. Supreme Court, though race and gender are now considered more important than region and religion. However, in India, on account of the obsession with preserving a regional balance on the Supreme Court, not enough of an effort is made to appoint judges with other claims to diversity—religion, caste, and gender. Amongst 189 judges appointed to the court between 1950 and 2009, only three were women. Amongst approximately 50 judges appointed to the court between 2000 and 2009, only two were Muslim. Judges from “backward” castes have only made it to the court since the 1980s, and in small numbers. It is puzzling why regional diversity matters more than gender, religion, and caste in the Supreme Court appointments process.
In short, criteria which were never conceived in the Constituent Assembly of India now determine who gets to sit on India’s most powerful court. Each of these unwritten qualifications—age, seniority, and diversity—is problematic in its present form. A 50-year-old judge can hardly be termed “immature” on account of his age, and High Court Chief Justices should not be the sole legitimate claimants to Supreme Court judgeships.
Further, though the court is geographically diverse, ironically, its members still come from an overwhelmingly homogeneous professional background—all of them have spent a vast portion of their careers as High Court judges. Of course, these unwritten qualifications do not guarantee a Supreme Court appointment; they only make a candidate eligible to be considered for it. In other words, unwritten rules have replaced a portion of the text of India’s Constitution and now inhabit its shadows.
Abhinav Chandrachud is a doctoral student at Stanford Law School, U.S.