Politics in SC postings is nothing new

Chief Justice (CJ) of the Bombay High Court Dipankar Datta will be pipped to the post of 57th Chief Justice of India by Justice JB Pardiwalla who is six months younger than him. Pardiwalla will be sworn in as the 57th CJI on May 28, 2028 but if CJ Datta had been elevated earlier, he would have been the CJI.

That he would be elevated to the Supreme Court was a foregone conclusion as he superseded judges senior to him in the Calcutta High Court to drive down to Mumbai to be sworn in as the chief justice at 55 years of age — a post he occupied for over two years. He is the son of the late Calcutta High Court judge Justice Salil Kumar Datta and also the brother-in-law of Supreme Court judge Amitava Roy. CJ Datta’s lineage resembles that of Justice Pardiwalla whose great-grandfather was a lawyer.

In the 1950s, the first to be elevated to the Supreme Court because of perceived political leanings was Justice Govinda Menon of the Madras High Court who refused a transfer to Andhra Pradesh but was nonetheless elevated in September 1956 to the apex court. The then CJI SR Das had claimed that Justice Menon’s mind was “not-too-sharp” and “he could not write a decent judgment.” But a consultee judge BP Sinha said “Menon was seen as a distinguished jurist in the highest quarters.” Some judges opined he was a protégé of the then Union minister VK Krishna Menon.

The point here is — just as the allegation now is that the Union government blocks elevations of those who do not share their ideology, in 1958 the Law Commission in its 14th report alleged that judicial appointments were made on political, regional and communal considerations. In its chapter on the Supreme Court, the Law Commission said the ‘general impression’ was “now and again, executive influence exerted from the highest quarters was responsible for some appointments to the bench.” Apparently, this referred to elevations of high court and Supreme Court judges.

A senior advocate from Gujarat, Yatin Oza, was stripped of his senior’s gown for alleging that Supreme Court judge Mukesh Rasiklal Shah was close to Prime Minister Narendra Modi and Home Minister Amit Shah. This judge who underwent angioplasty while in Himachal Pradesh praised the prime minister during the centenary celebrations of his parent Gujarat High Court. The government stalled his transfer to Madhya Pradesh until the then CJI Dipak Misra made him chief justice of the Patna High Court in 2018 and elevated him to the Supreme Court the same year. Executive influence in judicial appointments is an old story.

But to return to the present, a few chief justices of the Bombay High Court were not elevated to the Supreme Court because the collegium opposed it. Two former chief justices, Mohit Shah and Manjula Chellur, had the ignominy of seeing judges junior to them being elevated to the Supreme Court. Seniority is not the sole criterion to elevate CJs of high courts.

To illustrate, the then CJI Altamas Kabir, declared in public that the three chief justices Mohit Shantilal Shah in Mumbai, Bhaskar Bhattacharya of Gujarat and Barin Ghosh of Uttarakhand were found to be unfit for elevation to the Supreme Court despite their seniority. Justice Bhattacharya replied alleging his elevation was stalled in revenge because he had opposed the elevation of Justice Kabir’s sister, Justice Shukla Kabir Sinha, to the Calcutta High Court as she was 59 years of age apart from other grounds.

There have been episodes in the past where senior judges have resigned because their juniors were elevated to the apex court despite their seniority. Like the late Karnataka High Court chief justice Madhav Laxman Pendse whose parent high court was the Bombay High Court. Addressing LL.M students at the University of Mumbai while he was a sitting judge, he claimed section 498-A was often misused by newly-married women against their in-laws. He gave an example of a woman who died by suicide just because she was asked to make a cup of tea by her husband during the visit of his colleague, according to Justice Pendse. After his speech was published, women’s activists staged a protest and some women lawyers wrote to the then CJI A.M. Ahmadi. Whether he took cognisance or not of these complaints is not known. Much later, CJI Ahmadi transferred Justice Pendse to the Karnataka High Court as its chief justice. Later, Justice SP Kurdukar was elevated to the Supreme Court, bypassing Justice Pendse who promptly resigned. When CJI Ahmadi was quizzed about Justice Pendse’s resignation by this writer at the Raj Bhavan in Mumbai where he had come for a visit, the CJI remarked, “Let him resign.”

The unsatisfactory method of appointing judges was an issue right from the time the Supreme Court was set up in 1950; secret letters exchanged between the chairman of the 14th Law Commission, attorney general MC Setalvad and the then home minister GB Pant were published in October 1957 by The Statesman. The then CJI SR Das alleged that certain chief justices of that time were holding back appointments of those with merit in deference to the chief minister’s candidates. Though independent in theory, high court judges are paid their salaries from the consolidated funds of various states. The government provides the infrastructure of these courts which is why if they oppose the elevation of certain lawyers as judges, those lawyers will not be elevated.

Whereas Justice MN Chandurkar’s elevation to the Supreme Court was opposed as he had attended the funeral of RSS ideologue MS Golwalkar on whom he heaped encomiums, today that situation has been reversed.

Olav Albuquerque holds a PhD in law and is a senior journalist-cum-advocate at the Bombay High Court

Published on: Friday, September 30, 2022, 11:30 AM IST