Are not collegium a synonym for nepotism?



May it please Your Lordships,

I have come to know from the social media that the collegium of the Supreme Court of India has recommended Chief Justice Maheswari of the Karnataka High Court and Justice Sanjeev Khanna of the Delhi High court as judges of the Supreme Court. It was further reported that justice Sanjeev Khanna is the son of Justice Khanna and nephew of the legendary Justice HR Khanna who had the courage to hold that the right to life does not stand suspended on a declaration of emergency. Justice Khanna had to pay a great price for upholding the fundamental rights and independence of judiciary, in as much as Mrs. Indira Gandhi superseded him and appointed his junior M H Beg as Chief Justice of India.

I have nothing against the elevation of hon’ble justices Maheswari and Khanna as judges of the Supreme Court. But what disturbs me is that based on the doctrine of seniority which the judges 2 case has held to be sacrosanct, Justice Khanna will become the 51st Chief Justice of India after justice Chandrachud, the office which his uncle had to sacrifice to uphold the impartiality and integrity of the judiciary, in a sense nothing but poetic justice. I said I am disturbed because the elevation of Justice Khanna would reduce the Supreme court of India, literally into the ‘sons court of India’. As I scribble these lines, I find on my table a book titled ‘God Save the Hon’ble Supreme Court’, a book authored by Fali S Nariman. The title of the book offers great surprise. How could a person as eminent as Fali Nariman prefix the word hon’ble to the Supreme Court. One could say ‘this hon’ble court’, ‘the Hon’ble High Court’, but nobody can call the Supreme court the ‘Hon’ble’ Supreme court.

When I was in the primary school, our prayer was ‘devame nee valyavan agunnu’ in Hindi ‘Bhagvan tu mahan hai’. In the 1970s, major changes were made in the liturgy of the Roman Syrian Catholic church to which I belong. Instead of ‘nee’ that is ‘tu’, our prayer changed to ‘daivame angu valyavan agunnu”; in Hindi, “Bhagawan Aap Mahan hai”. The Supreme Court does not need the prefix “Hon’ble” because the word ‘supreme’ itself is of the highest respect. By addressing Fali Nariman as Nariman, I commit no sin. A devout Hindu would call Lord Rama as Rama; me a Christian, would call Jesus as Jesus. I had addressed Nariman in the NJAC hearing as Nariman. Justice Chalameswar took offence and did not allow me to continue my argument, knowing not that Nariman a celebrity does not require a suffix.

More than Nariman, the common man of this country prays ‘God save the supreme court’. In the recent past, we had in Chief justices Lodha and Thakur sons of two former judges as CJI. The current CJI is the son of a former chief minister/an eminent lawyer. The future chief justices, namely justice Lalit and justice Khanna are the sons of former judges. Justice Bobde who hails from a family of lawyers is the son of Arvind Bobde the former AG of Maharashtra; Dr. D Y Chandrachud is the son of former CJI, Y V Chandrachud. The only exception is justice M V Ramana, a first-generation lawyer, whom justice Chelameswar says came to be a judge because of his closeness to Chandrababu Naidu. I hold all the Hon’ble judges in the pipeline to be the CJI in high esteem. I have nothing personal against anybody. I pray and hope that they will prove themselves to be worthy of the august office they are certain to occupy by virtue of the judges 2 case, but what lurks in my mind, so too, thousands of first-generation lawyers like me who come from humble backgrounds is, has not the collegium discriminated them beyond conception. If the Prime Minister, or his cabinet colleagues or the chief ministers were to appoint to a public office far less important and coveted than the post of judge of a high court or the supreme court, his kith and kin, would he not have been accused of nepotism. Papacy is the one institution which comes to my mind which can be compared to the Collegium.

The term nepotism comes from the italian word ‘nepotismo’ which is based on the Latin word ‘nepos’, meaning nephew. Since the middle ages and until the late 17th century, some popes and bishops who had taken oaths of chastity, and therefore had no legitimate offspring of their own gave their nephews such positions of preference as were often accorded by fathers to sons. Several Popes elevated nephews and other relatives to the Cardinalate. For instance, Pope Callistus III, made two of his nephews cardinals. One of them named, Roderigo became Pope Alexander VI, and he then elevated Alessandro, his mistress’s brother to cardinal, who later became Pope Paul III. Paul III, also engaged in nepotism and appointed his nephews as cardinals. Finally, in 1692, Popes were banned from bestowing offices, estates or revenue upon any relative. The judges who are going to become the future chief justices are all, I believe, worthy of the high office. However, the fact that their elevation as a judge of the high court in their early forties which is perceived to be because they are the kith and kin of those in power, howsoever one might brush aside that they are wrong perceptions, takes away the sheen of the high office they occupy. In so long as the august office of the chief justice and judges of the Supreme Court are not occupied by first generation lawyers as well who have no godfathers, the institution of judiciary will lack its democratic legitimacy. The NJAC judgment was a great error. To have dismissed the review petition of the NLC, that too in chambers, denying an open court hearing was an even greater error. The past is past and done. The NLC does not keep any grouse. The NJAC can still be revived. The Supreme Court can even suo motu recall it’s order dismissing the review of the NLC and list the case for hearing in the open court. At any rate, the NLC will pursue its struggle for an open selection of judges which will ensure that the first-generation lawyers and sons and daughters of the common man occupy the seats of justice of the Supreme Court which does not require the prefix ‘Hon’ble’ for its democratic legitimacy.

Mathews J Nedumpara
President of the NLC
Mumbai. 14th Jan.2019.