Appointment of Judges
Markandey Katju 20 Jan 2023

These days a lot of controversy is going on regarding appointments of judges of the High Courts and Supreme Court, with the Supreme Court and the Government of India at loggerheads. So let me narrate my own experience in the Madras High Court.
I took over as Chief Justice of the Madras High Court on 30th November 2004, and was immediately faced with the problem of getting judges appointed in the Court.

At that time the sanctioned strength of the High Court was 49, but the incumbents were only 25, a few of whom were retiring shortly.
This happened because each of the 2 major political parties in Tamilnadu, the DMK and the ADMK, wanted their own nominees to be appointed, and got the recommendations of the High Court Collegium ( which consisted of the Chief Justice of the High Court and his 2 seniormost colleagues, as per the decision of the Supreme Court in the Judges case ) stalled in some way if they thought it contained names of persons aligned to the other party.

Although under the decision of the Supreme Court in the Judges case the High Court Collegium, which had to recommend names for appointment, consisted of only the 3 seniormost judges of the High Court, I decided to considerably expand the consultative process. 
So I sent letters to 20 seniormost judges in the High Court, and also to about 10 or 12 senior and highly respected lawyers of the High Court ( including the Advocate General of Tamilnadu, the President of the High Court Bar Association, and former Advocate Generals ) requesting them to give me a list of those whom they thought deserved to be appointed. Thus I got about 25 lists.

I then sat with my 2 seniormost colleagues, Justice N. Dinkar and Justice N.V. Balasubramaniam, and went through these lists. We found many names common in many lists, but I personally made confidential enquiries even about these names regarding their reputation of integrity and competence. If anyone was known to be strongly aligned to any political party, he was eliminated no matter what his other qualities may be, because to my mind he could not be impartial, as a judge should be.

This process took about 2 months, and I sat with my 2 seniormost colleagues frequently to discuss the names submitted by the judges and senior lawyers. Ultimately, when a consensus was reached, I recommended 20 names for appointment.
The political party which was then an ally of the Congress in the Centre strongly opposed these recommendations, as the names of those they wanted were not included. In fact one of their leaders had earlier met me and submitted to me a list of 16 names which the party wanted, but I made enquiries about them and found them undeserving ( some were not even practising in any court,though technically enrolled as lawyers, and were full time workers in their party ). Consequently appointments of my collegium's recommendees was held up for several months. 

In view of this impasse, the then Chief Justice of india, Justice Lahoti, asked me to meet him, and so I flew over to Delhi and met him at his residence.
I explained to Justice Lahoti the procedure I adopted for recommending these names. I told him that none of the recommendees were my friends or relatives, and in fact I had not even heard of them before I became Chief Justice of the Madras High Court. If any name was rejected, for whatever reason, it would not bother me, because that person was not personally connected to me in any way. However, I added, I would not recommend any name, come what may,  unless I was satisfied that the person was deserving, and would prefer the vacancies to remain, rather than filling them with undeserving persons. I told him that I had done my duty, and now the ball was in his court and that of the Govt of India.

After I returned to Chennai some senior lawyers met me and said that they had  told leaders of the political party which was opposing my reoommendations that the persons recommended by me were not aligned to the opposite political party but were neutral, and were good names, and hence should not be opposed.

Ultimately 17 of the 20 persons I recommended were appointed ( the other 3 should also have been appointed, but were rejected for some extraneous considerations, which I need not mention here ).

I suggest a similar transparent procedure be adopted for appointments in the High Courts and the Supreme Court.

By Justice Markandey Katju, former Judge, Indian Supreme Court
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