While I am interested by the fine legal arguments and counter arguments which have been made here regarding the retirement of Justice A.P. Shah, and the wider debate concerning the elevation of judges to the Supreme Court, in this piece in the Indian Express, I take a step back: arguing that the hierarchy of the forum from which a judge retires should not concern us as much as it seems to do in India, especially when we’re measuring the difference between the posts of High Court Chief Justice and Supreme Court judge. I am informed that Ronald Dworkin was said to have turned down a clerkship at the American Supreme Court after having clerked with Judge Hand: a gentle reminder that the forum’s status can only matter so much when we go to measure a person’s contributions to the development of the law.
Dworkin had Hand
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I admire your piece today for the refreshing discussion of an unexplored issue.
But if you look at the reactions to Justice Shah's non-elevation, it is mostly disappointment over his non-elevation, because of the age of retirement of HC judge. If the age of retirement is 65, and equal to that of Supreme court judge, then there would not have been this degree of disappointment. In fact, had he moved to the SC in 2008, when Collegium considered him, he could not have authored some landmark judgments which he did in the HC.
Therefore, both the discernible schools of thought surrounding Shah's retirement, which you articulated may not be valid. I am disappointed with his non-elevation, but I don't subscribe to either or both schools of thought.
A very intersting analysis, but preposterous is what i would say.
You say "Indeed, our perception seems to have suffered a tectonic shift from what it once was: judges were often rumoured in the past to have turned down offers to rise to the SC, if they were in contention for the post of high court chief justice."
Are there any examples of this in Indian judiciary?
You also say "The quality and calibre of a judge, thus, cannot be equated or confused with the court to which she belongs".
The quality or calibre is not being equated. But is not logical to expect a judge of calibre and quality to be elevated to the Appellate Court of the Country. And when this logic is defeated, the ills of the system lay bare for everyone to see.
I think Lord Denning could be added in the same league. He too had been reluctant to go to the House of Lords (read Supreme Court) while he was in the Court of Appeals (read High Court)because he believe that it might reduce his chances of becoming a Master of the Rolls (read Chief Justice, High Court).
Infact he became a member of the House Lords in 1957 but stayed there only for some 5 years after which he reverted back to the Court of Appeals where he was appointed as the Master of Rolls. A post he held till his resignation in 1983.
Hi Abhinav,
Thanks for an interesting yet hitherto unexplored facet of the discussions surrounding Justice Shah’s non-elevation. However on merits, I would disagree. There are two basic points which you seem to be making. First, is that the quality and intellect of a judge should not be confused with the stature of the Court where he happens to be adjudicating. Sure. That seems to be rather obvious and hardly requires elaborate argumentation. Second, that elevation to the Supreme Court should not be seen as a measure of success. This argument is surely counter-intuitive. And to make such a counter-intuitive hold, you provide two arguments both of which are unconvincing. First you say, that the view that the Supreme Court is qualitatively superior to the high courts is a mistaken. The key question is what you mean by qualitatively. If you mean that the judges in the Supreme Court are “better” in some sense, then that takes you back to your first point which I agree with. But the simpler view which you do not consider is that the Supreme Court is judicially superior to the high courts, by dint of which judges in the Supreme Court can lay down the law of the land, which a High Court judge can, only if his superiors in the Supreme Court, don’t think otherwise. Surely some of Justice Shah’s seminal decisions would have firmly become the law of the land and not subject to a precarious appeal in the Supreme Court, had Justice Shah been on the SC himself (on the assumption that he would have heard the case). Appellate superiority is certainly superiority and for Justice Shah not having held this position of authority is surely something people are rightly complaining about. Second, you suggest that the elevation to the Supreme Court is not a reward for good performance or at any rate should not be seen as such. Two points in response- current practice indicates that if anything elevation to the Supreme Court is a measure of performance of judges in the HCs. And at any rate it should be given that it is a subjective decision. It’s better than personal favourites being picked for extraneous considerations. Second, the point that you make of all-India seniority being followed is flawed. Yes, Supreme Court judges are certainly old but as The Third Judges’ Case clearly says merit is the only criterion for appointment and seniority can be given a go-by for appointment to the Supreme Court. So it is certainly on law, not a function of the age but certainly a function of performance, as it should be as well. (Though how the performance is analysed currently is an entirely different matter).
Finally, you provide examples of some sterling judges who weren’t judges of the highest courts of their land. Certainly that doesn’t make them less great as judges. But with Justice Shah’s case, unlike Lord Denning who resigned from the House of Lords, or any of the American judges you mentioned who work in a system of political appointments to the Supreme Court, Justice Shah as a judge has been denied a Supreme Court position, for what it seems, are extraneous considerations. Not only would a Supreme Court judgeship given him three more years, as Venkatesan rightly points out, but there was a seeming injustice in his non-appointment, against which there is and must be rightful vocalisation of disappointment. Detecting subtle undertones of denigrating High Court judges in this lamentation would be missing the point. And perhaps even giving those expressing their disappointment a little less respect than they deserve.
Thank you all for your incisive comments. VV: I agree with you entirely that this debate ought to be one about age of retirement and greater transparency. Renu: I respect your point of view, even though I may find it equally “preposterous”. While it is certainly “logical” to “expect” a judge of high caliber to be elevated to the apex court of a country, I am more concerned with two things: first, whether reality meets expectations; second, whether these expectations make underlying assumptions about the “quality” of lower court judges. If no assumptions exist, I am satisfied. Which brings me to the cogent argument made by Ajat. I am glad that we agree on the first point, which I would stress more than the second. However, here are my answers to your second thought, unsatisfactory though these answers may seem: first, the ability to “lay down the law of the land” does not carry with it any concomitant qualitative “superiority” (forgive the primitive phraseology). Notice that I emphasize the word “superiority”, which is not to take away from the high quality law that the Supreme Court “lays down for the land”. I certainly do not suggest that the Supreme Court is in any way inferior to the High Courts – that would be "preposterous". I agree that appellate superiority is superiority nonetheless, but it is not “qualitative” superiority – here I emphasize the word “qualitative”, without losing sight of the emphasis in my previous sentence. Second, I agree that subjective decisions should be exercised to reward performance and not pick personal favorites, and will say no more. Third, you’re right in that seniority can be given a go-by while picking judges for the Supreme Court – but notice that you have to have a certain level of seniority in order to make the cut. For example, Judge X whose position is 15th in High Court A will not be considered for the job, while Chief Justices Y and Z at High Courts B and C may compete for a post on the Supreme Court, and Y may be picked over Z even though Z was more senior. However, X is nowhere in the running in this contest. Contrast that with Story – don’t get me wrong though, the American system is certainly flawed. But the emphasis here is on seniority, which is why I emphasize (in my space-bound piece in the IE) the “near” absence of qualitative standards for appointment: the collegium can certainly pick between two senior judges, but they have to be "senior" judges – at least that seems to be the practice. Fourth, I agree that this debate should certainly center around the age of retirement from the High Court, and Justice Shah and all High Court judges certainly do deserve three more years on the court. Finally, if I have at all been misunderstood let me take this opportunity to clarify my position: by thinking out aloud I mean no disrespect to anyone, but I’m glad, even if I’ve “missed” any point, that this debate has arisen from the point so missed. It's hard to always agree on everything, but you may agree that our thinking benefits by our disagreements.
Hi Abhinav,
Two quick points and a comment in response. First, the differing emphases on "qualitative superiority" in two different sentences is something I quite don't get. We agree that there's appellate superiority and also that there's no superiority in terms of actual judging standards between the High Courts and the Supreme Court, so perhaps we should best leave it at that lest we get caught into a semantic tangle of a kind that often leads nowhere.
Second, I agree entirely with your understanding of seniority in response to my comment. It is only above a certain threshold that seniority is not a factor for appointment. Perhaps this would be yet another reason for a transparent system of appointment, where if the 15th senior HC judge is an exceptional talent, then his elevation should not have to wait for more senior people to have their shot, as cogent reasons, accessible to the public, can be provided for elevating him at a relatively younger age than most.
Finally, I must thank you again for raising the points you did. It's seldom that people have perspectives on current controversies, especially perspectives not readily apparent. You clearly do and as long as we agree to disagree, if and when we do, this exchange would have served its purpose.