New Delhi: In a bid to dispel the perception of a judiciary mired in nepotism, the Supreme Court of India Collegium—which comprises Chief Justice of India (CJI) Sanjiv Khanna and four more Supreme Court judges—has been considering a proposal to stop recommending the names of judges’ kith and kin including their family members, relatives and close friends when it comes to the appointment of high court judges.
The five-member apex court collegium, which is tasked with deciding and recommending the appointment and transfer of judges in the Supreme Court and high courts, also consists of justices B.R. Gavai, Surya Kant, Hrishikesh Roy, and Abhay S. Oka.
“They are aware that some deserving candidates, who are close relatives of sitting or former Supreme Court or high court judges may lose out, but feel that it would not harm them as they can earn money and fame as successful lawyers, while their exclusion from the selection process would enable many deserving first-generation lawyers to enter constitutional courts, allow deepening and widening of the pool and, in turn, allow representation of diverse communities in Supreme Court and high courts,” a report by The Times of India said.
Additionally, the Supreme Court Collegium recently started the process of initiating personal interactions with lawyers and judicial officers whose names were recommended for elevation in high courts, indicating an important shift from the traditional methods, which consisted of looking at their biodatas, written assessments and intelligence reports, among other considerations, the Press Trust of India said.
Consequently, the issue started to gain ground and resulted in a full-fledged debate, with senior advocate and Congress Rajya Sabha MP Abhishek Manu Singhvi saying that such a move should be implemented sooner as judicial appointments are “non-objective”.
Highlighting that both proposals, if true, are good and should be implemented at the earliest, the Rajya Sabha MP took to X to say, “Reality of judicial appointments is much murkier and much much more non-objective than originally conceived. Mutual Back scratching, uncle judges, family lineages etc demoralise others and bring disrepute to the institution.”
ThePrint encapsulates different hues and voices from the bar and the bench to gauge how they view this move if it is implemented formally.
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Rebecca John
Welcoming the move, senior advocate at the Supreme Court Rebecca John told ThePrint that the problem of nepotism is a “reality” she has lived with since the time she started her practice.
“Any proposal which seeks to reduce nepotism has to be welcomed. How effective it will be, I don’t know, since the screening process is ultimately very opaque,” she added.
Underlining how this opacity endemic to the screening process has paved the way for a certain “quality of recommendations” which have been made in the last few years, she said, “People who should not be holding constitutional positions and have, in fact, been pulled up by the Supreme Court on several occasions, are holding those posts. So there is something terribly wrong with the whole process of selection and that is not just limited to a kith and kin problem.”
Emphasising how the quality of judicial appointments has dipped over time, John said that the entire process needs to take place in a more “holistic” and “comprehensive” manner. “Equally disturbing is the quality of people who are recommended by high courts, particularly those with very strong political affiliations, or those who show no respect for constitutional values. In fact, there have been instances where appointed persons have violated the oath of office they took as judges.”
While the collegium needs to welcome any move that minimises nepotism, they should equally look at some of these names with a greater degree of scrutiny as these are the judges who are going to remain in their posts for a substantially long period of time, and have the potential of completely violating the constitutional ethos of the country, she said.
“There should be a more comprehensive and holistic analysis of a person’s capacity and potential to hold a constitutional position. Politics is best left outside the courtroom. Although political matters are often brought to court, a judge cannot be seen to favour any political dispensation,” John said, adding that this is the most important thing that the collegium should look into.
M.B. Lokur
Explaining that the collegium’s mandate is to recommend and not eliminate candidates for judgeship, former Supreme Court judge Madan B. Lokur said to ThePrint, “The mandate of the collegium is to recommend candidates for judgeship, not eliminate candidates, The proposal to eliminate one category of persons for appointment negates the collegium’s mandate.”
Gopal Sankaranarayanan
Senior Supreme Court advocate Gopal Sankaranarayanan, on the other hand, disagreed with the need for a “blanket rule” to eliminate nepotism, adding that such selection should happen purely on the basis of merit.
“I don’t think any such blanket rule should be there. It should be purely on merit. We have excellent judges who have been related to others—the Kanias, the Chandrachuds, the Bhagwatis, the Venkataramaiahs, the Khannas and the Chaglas are all proof that you can have good judicial minds from the same family. However, if there is a choice to be made between an equally meritorious and capable relative versus a non-relative, one should go for the latter to allow the system to be more inclusive,” Sankaranarayanan told ThePrint.
Jayna Kothari
“I believe it is a good suggestion by the collegium but it should come in the form of a circular or some guidelines to make its effect permanent,” senior Supreme Court advocate Jayna Kothari said to the Print. Additionally, the collegium must also consider increasing the number of women in the higher judiciary and issue some guidelines in that regard, she said.
Vikas Pahwa
The recent move by the Supreme Court Collegium to exclude lawyers with ties to judges from being elevated to the bench reflects an “earnest attempt” to address concerns of nepotism and safeguard the judiciary’s independence and integrity, senior advocate Vikas Pahwa told ThePrint.
Highlighting the need for transparency in judicial appointments as critical, Pahwa said that such a move could help in maintaining public trust in the institution.
Cautioning against a “blanket exclusion”, he said, “A blanket exclusion of individuals solely based on their relationship with a current or former judge risks discounting highly capable and deserving candidates who could contribute significantly to the judiciary. Merit, legal acumen and judicial temperament should always be the primary criteria for such appointments.”
Disqualifying candidates based on familial connections may inadvertently create a perception that pedigree, rather than performance, defines their eligibility, he said.
Advocating for a “more balanced approach” that entails the stringent scrutiny of credentials and a transparent evaluation process, he added that “both merit and independence must be preserved” to avoid any unjust exclusions.
Pahwa also spoke on the need to navigate this issue “delicately” in a way that fosters confidence without compromising on fairness. “Ultimately, the goal should be to ensure that the bench comprises the most competent individuals, regardless of their personal affiliations,” he said.
Mahesh Jethmalani
“The collegium is the master of its own procedure and guiding principles, so nobody can question that,” senior Supreme Court advocate Mahesh Jethmalani said.
Acknowledging that reducing nepotism is a good idea, he said, “While I think it is a good idea to reduce nepotism, if there is a question of exceptional merit, then the norm of appointing family members of former or sitting members of the judiciary can be waived.”
Prashant Bhushan
Terming the proposal a “good” one, Indian author and public interest lawyer at the Supreme Court Prashant Bhushan told ThePrint, “I think it is a good proposal but they will need to define who is considered a relative.”
Rohin Bhatt
Flagging nepotism as a real problem not just in the legal profession but across professions, Delhi-based lawyer and author of ‘The Urban Elite vs. Union of India: The Unfulfilled Constitutional Promise of Marriage (In) Equality’ said, “That is how traditional structures of power through caste and class have been maintained. However, it is much more so in the legal profession because so much of one’s success here becomes a function of caste and class privilege.”
Making a reference to “Uncle Judge Syndrome”, which was dealt with in the Law Commission of India’s 230th Report, Bhatt said, “Several judges of the high courts had their kith and kin practising in the courts where their relatives or parents were judges. I think that’s a really serious problem, not just in terms of success to individuals but in a broader perception of what the system is perceived as. When so many judges have their relatives practising in the same court, even if not the same courtroom, it leads to a real perception of bias which, in turn, is very dangerous for the legal system.”
He added, “In the past, we have also seen the collegium make declarations on factors that are considered when elevating a judge to the Supreme Court.”
He also said that several factors such as gender have not been given due credit.
Abhik Chimni
Delhi-based lawyer Abhik Chimni said, “I don’t think this will help beyond a point. The relationship between judges, the government, relatives and senior counsel is complicated—from relatives practising in the same courts to heavy empanelment of relatives in panels of central government or major private limited entities to certain relatives of judges strategically being promoted for unethical reasons by law firm partners and seniors.”
However, Chimni clarified that although appointing a judge’s relative is no issue, given that the collegium has appointed some great judges from lineage, “the actual elephant in the room is corruption and the old boys’ network”. Appointment of judges is the least important symptom, he said.
More mixed reactions from the bar
“Why start implementing this with only future judges? Why not implement it for the existing ones as well?” a senior Supreme Court lawyer, who wished not to be named, asked while speaking to ThePrint.
“How many people would be able to argue against this proposal because they all have someone or the other who can stand to benefit from the prevailing norm?” another senior Supreme Court advocate, who wished not to be named, asked.
Advocate on Record Ameyavikrama Thanvi, while welcoming the step to address nepotism also cautioned, “Simply because someone is related to a judge does not mean that they are not qualified enough.”
Pointing to how such a method of appointment could lead to a loss for the legal fraternity, she said that considerations such as a massive vacancy in the judiciary are still very relevant, and must be kept in mind.
Lavkesh Bhambhani, a practising advocate before the Supreme Court, however, said that while at first glance, the proposal might seem like a positive step towards addressing the nepotism issue, the real challenge lies in the details.
“Defining clear and objective criteria for excluding candidates with familial ties to judges will be a complex task. Another challenge will be determining the duration of this disqualification for relatives of judges while ensuring that deserving candidates with such connections are not unfairly excluded,” he said.
(Edited by Radifah Kabir)
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Indian judiciary is a bastion of nepotism and has been so since Independence.
It is a system by the families, of the families and for the families. And it will remain so forever because the SC Collegium will keep it that way.
By families I am referring to the elite judicial families of India. For example, the Chandrachud family, the Khanna family, etc.