National Judicial Appointments Commission and All-India Judicial Service exams both strike at the very root of dynastic self-perpetuation in the higher judiciary.
Can an opaque institution deliver justice and, more importantly, be seen to deliver justice, even when its members are exceptionally bright, diligent, conscientious, and possess unquestionable integrity?
Indeed, at the very outset, it must be put on record that this column doesn’t doubt the intellectual ability, academic rigour, and judicial competence of Chief Justice of India (CJI) DY Chandrachud and his fellow judges in the Supreme Court. The question is about the collective silence of those at the helm of our judicial system to President Droupadi Murmu’s suggestion on Constitution Day 2023 regarding the creation of an All-India Judicial Service (AIJS)—to diversify the judiciary by recruiting “brilliant youngsters” from across the country to become judges through a merit-based process.
Her remarks have revived the debate on the existing system of recruitment, promotion, and filling positions in the judiciary at all levels. This includes roles ranging from the entry-level judicial magistrates and munsifs in sub-district courts to district judges, and high court and the Supreme Court justices. This column examines the issue from the viewpoint of constitutional provisions, the intent of the founding members of the Constituent Assembly, the political consensus, and judicial obduracy, while also addressing arguments against the AIJS.
Nepotism in judiciary
First things first. On the face of it, the National Judicial Appointments Commission (NJAC) and AIJS are distinct. The NJAC is about the appointment of the judges to the Supreme Court and high courts, whereas the AIJS is about the feeder cadre. However, both strike at the very root of dynastic self-perpetuation in the higher judiciary.
Let’s begin with some empirical data. In a YouTube video, advocate and author Sanjay Dixit stated that 20 out of the 25 chief justices of high courts were related by blood or marriage, or years of servitude as a junior to justices of high courts and the Supreme Court.
In his recent column, the former Attorney-General of India, Soli Sorabjee wrote about nepotism in the judiciary. He quoted the Punjab and Haryana High Court Bar Association’s memorandum of 5 May, which was signed by 1,000 advocates. “It has now become a matter of practice and convenience to recommend the names of those advocates who are the sons, daughters, relatives and juniors of former judges and Chief Justices,” without reference to their merit.
Even more stringent criticism came from Justice Rang Nath Pandey (retd) of the Allahabad High Court. He alleged that the high court collegiums deliberately delayed the promotion of judges from the bench to ensure the perpetuation of the near monopoly of the Bar.
This effectively blocks their entry to the Supreme Court where, since Independence, only six non-members of the Bar have been appointed as judges. SK Das, KN Wanchoo, KC Das Gupta, R Dayal, V Ramaswami, and V Bhargava were part of the colonial Indian Civil Services. Among them, only Wanchoo served as the CJI in 1967-1968. After him, no jurist has been elevated to the top court even though a provision for the same exists under Article 124(3) of the Constitution.
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