Of
the sanctioned strength of 31, 27 judges currently serve on the Supreme Court. Of
these 27 judges, 24 have previously been judges of one or more High Courts in
the country. While we are aware of the nature and duration of their judicial
positions before elevation to the Supreme Court, we know little about their
professional life before becoming judges. Amongst other questions, what was the
professional engagement of these justices before they were appointed as judges?
In this post, I wish to survey the past professional experience of these judges
and pay specific attention to whether Supreme Court justices have previously
been appointed as government pleaders, advocates or standing counsel for the
State or its instrumentalities.
I
identify a judge as a government advocate or standing counsel, if a judge has
been appointed to represent either the Union or State Government, Municipal
Bodies, Corporations and Companies that have government control and/or
involvement.
For
the purposes of identifying judges who have previously been appointed as
government pleaders or advocates, I rely primarily on the profile of judges as carried
and maintained on the website of the Supreme Court. However, in some cases
the profiles of certain judges on the Supreme Court website remained silent on
whether they were government advocates, while the profile on the website of
High Court on which they served did make reference to such appointment. In
these cases, I have relied on the profiles as carried on the website of the
respective High Courts.
Relying
on the profiles of the judges on the website of the Supreme Court or the High
Court have certain drawbacks, two of which merit immediate mention. First, if
the profile of a particular judge is not accurate and does not fully describe
the various professional positions he/she was appointed to, there would be a
cascading inaccuracy in the discussion to follow. For the purposes of this
post, where a profile of a Judge does not explicitly make reference to being
appointed as a government advocate or standing counsel, I have counted these
judges as not being so and assumed that they never held any such position. The
other limitation of relying on the profiles of judges on the Supreme Court
website is that they do not uniformly list the duration for which they held
such positions as government advocates or standing counsel. One is therefore not
able to accurately assess the length of their appointment and the consequent
involvement in representing the State.
From
my reading of the profiles of the Supreme Court judges, here is what I found: Of
the 27 judges, the profiles of 19 justices revealed that they had previously
represented the State. While the profile of the 8 remaining judges were silent
on this issue, forcing me to conclude that they did not represent the State or
its instrumentalities prior to being appointed as judges. This exercise reveals
that at a minimum, 70% of the judges on the Supreme Court have previously
represented the Government and would meet my definition of a government
advocate or a standing counsel. A tabular summary of the information on the
Supreme Court and High Court website(s) are as follows:
Sl
No.
|
Name
of Judge
|
Previous
engagement
|
|
Hon'ble Mr. Justice Jagdish Singh Khehar
|
Additional Advocate General,
Punjab, in January 1992. Senior Standing Counsel, Union Territory,
Chandigarh.
|
|
Hon'ble Mr. Justice Dipak Misra
|
No
description
|
|
Hon'ble Mr. Justice Jasti Chelameswar
|
Appointed as Additional Advocate
General on 13.10.1995
|
|
Hon'ble Mr. Justice Ranjan Gogoi
|
No
description
|
|
Hon'ble Mr. Justice Madan Bhimarao Lokur
|
Central
Government Standing Counsel from December, 1990 to December, 1996.
Appointed
as Additional Solicitor General of India on 14th July, 1998 and continued as
such till appointed as an Additional Judge of Delhi High Court on 19th
February, 1999
|
|
Hon'ble Mr. Justice Kurian Joseph
|
Government Pleader (1987)
Additional Advocate General (1994-96)
|
|
Hon'ble Mr. Justice Arjan Kumar Sikri
|
Counsel for numerous Public Sector
Undertakings, Educational Institutions, Banks & Financial Institutions.
|
|
Hon'ble Mr. Justice Sharad Arvind Bobde
|
No
description
|
|
Hon'ble Mr. Justice R.K. Agrawal
|
Worked as Standing Counsel of the
Income Tax Department of the Government of India. Served a number of
corporations and institutions as their Standing Counsel
|
|
Hon'ble Mr. Justice N.V. Ramana
|
Functioned as Panel Counsel for various
Government Organizations, Addditional Standing Counsel for Central Government
and Standing Counsel for Railways in the Central Administrative Tribunal at
Hyderabad and also functioned as Additional Advocate General of Andhra
Pradesh
|
|
Hon'ble Mr. Justice Arun Mishra
|
No
description
|
|
Hon'ble Mr. Justice Adarsh Kumar Goel
|
Standing Counsel and Addl.
Advocate General for the State of U.P. in the Supreme Court and as Standing
Counsel (Civil) for NCT Delhi in Delhi High Court (from the website of the Gauhati High Court).
|
|
Hon'ble Mr. Justice R.F. Nariman
|
Solicitor General of India from
July 27, 2011 to February 4, 2013
|
|
Hon'ble Mr. Justice Abhay Manohar Sapre
|
Standing counsel for Income Tax
Department, in Madhya Pradesh High Court (from the website of the Gauhati High Court).
|
|
Hon'ble Mrs. Justice R. Banumathi
|
No
description
|
|
Hon'ble Mr. Justice Prafulla Chandra Pant
|
No
description
|
|
Hon'ble Mr. Justice Uday Umesh Lalit
|
Appointed Special Public
Prosecutor for CBI to conduct trial in all 2G matters.
|
|
Hon'ble Mr. Justice Amitava Roy
|
Senior Government Advocate of the
Government of Arunachal Pradesh in the Gauhati High Court from 1991 to 1996
|
|
Hon'ble Mr. Justice A.M. Khanwilkar
|
Appointed as Standing Counsel for
the State of Maharashtra for Supreme Court matters in October, 1985. Worked
as Additional Government Advocate for the State of Maharashtra till December,
1989. Appointed as Panel Counsel for Union of India in January, 1990 (From
the Himachal Pradesh High Court
website)
|
|
Hon'ble Dr. Justice D.Y. Chandrachud
|
Additional Solicitor General of
India from 1998 until appointment as a Judge
|
|
Hon'ble Mr. Justice Ashok Bhushan
|
Standing Counsel of Allahabad
University, State Mineral Development Corporation Limited and several
Municipal Boards, Banks & Education Institutions
|
|
Hon'ble Mr. Justice L. Nageswara Rao
|
Additional Solicitor General of
India from August 2003 to May, 2004 and again from 26.08.2013 to 18.12.2014
|
|
Hon'ble Mr. Justice Sanjay Kishan Kaul
|
Senior Counsel for the Delhi High Court and for the Delhi
University, Senior Panel of Union of India and Additional Senior Standing
Counsel for DDA.
|
|
Hon'ble Mr. Justice Mohan M. Shantanagoudar
|
State Public Prosecutor of
Karnataka State from 1999 to 2002
|
|
Hon'ble Mr. Justice S. Abdul Nazeer
|
No
description
|
|
Hon'ble Mr. Justice Navin Sinha
|
No
description
|
|
Hon'ble Mr. Justice Deepak Gupta
|
Standing counsel of Himachal
Pradesh Road Transport Corporation, Himachal Pradesh Housing Board and New
India Assurance Companies (from the Himachal
Pradesh High Court website)
|
This
information is helpful for a variety of reasons. First, it helps us gain some
insight into the professional background of Judges, before they assumed
judicial positions. It opens our eyes to the kinds of practice areas these
judges were exposed to and their involvement in representing the Sate’s
interests in courts and judicial fora. I would however caution against reading
this information as pointing to some sort of government bias in Supreme Court
judges. I think merely because these judges once represented the State, should
not automatically mean that they are ideologically predisposed in favor of the
State and/or its conduct.
What
we should read this information as, is having the potential to throw light on
the past professional conduct, learning and experience of more than half of the
Supreme Court judges. While working as lawyers for the government, these judges
necessarily would have worked closely with law officers and government
officials of various designations and in different positions of power. They
would have been briefed by such officials, attended meetings within such
organizations and been closely associated with the departments/organizations
they were called upon to represent. Such an association with government
servants and officials would have exposed them to the inner working of the
government and/or its instrumentalities, the manner in which decisions are made
within such bodies and areas of contentious government policy/action that are
the subject matter of challenge. Those judges that were previously special
public prosecutors (Justice UU Lalit and Justice Mohan Shantanagoudar) or
standing counsel for revenue departments (Justice RK Agarwal) were involved in
essential state functions (Crime and Revenue) and were therefore intimately
associated with the conduct and interests of the State. More importantly,
through the process of such representation, these judges would have been
exposed to and understood the institutional strengths and weaknesses of the
agencies/departments they were called upon to defend. In this learning, it
would be natural to assume that these judges also became familiar with
arguments canvassed in defense of the State: exclusion of the jurisdiction of
constitutional courts where an alternative remedy exists, issues of standing
and whether a cause of action accrues to the petitioner or claimant, whether
the impugned action is in the realm of government policy (and therefore not
strictly subject to constitutional challenge) and whether the appropriate
government department/bodies have been impleaded in the concerned litigation.
A
natural question to ask in this context would be: what happens to this
professional learning when government advocates and standing counsel assume
judicial office? Do these positions of law and arguments which were previously
routinely invoked, form part of their fundamental understanding of the law and
judicial process or is it appropriately contextualized as a professional
strategy employed in the defense of state action. Does their professional
experience form the backbone of their judicial outlook or are these judges able
to adopt an understanding and practice of the law that is detached from their
prior professional experience? These are difficult questions and I frankly do
not have any answers. But I do think that these questions form preliminary
concerns in meaningfully trying to understand judicial behavior within our
Supreme Court.
In
fact, this data begs the question of whether judges who have previously
represented the State are likely to be biased against it? I think it is also
plausible to foresee a situation where a judge who previously represented and
defended the State, is likely to have been exposed to and called upon to defend
various inefficiencies in state functioning. After all, much of the litigation
before constitutional courts is concerned with the wrongdoing or failure in the
conduct of the State. Is a judge who was previously a public prosecutor likely
to be harsher on the prosecution given his/her first-hand knowledge on the
state of affairs within the police and investigation agencies in the country.
Similarly, would a judge who has represented the revenue department be more
likely to sympathize with an assesse given his/her understanding of the manner
in which tax and revenue authorities are committed to revenue collection,
irrespective of legal sanction for such levy.
The
other reason why this information is interesting, is because it helps
contextualize the manner in which judicial appointments to the Supreme Court
and High Court are made. For some time now, there has been a widely held belief
that in order to be appointed as a Judge to the Higher Judiciary, one must have
represented the State or its instrumentalities in some capacity. There are immediate
benefits of being appointed as a government advocate/ standing counsel for
persons interested in judicial office: one is exposed to various facets of
public and administrative law and one is able to closely observe the working of
other constitutional actors. Not to mention that the sheer volume of work
entrusted to government advocates and standing counsel guarantees repeated
appearances in court, thereby facilitating observation and assessment of their
performance and professional conduct by sitting judges and consequent
recommendation to be appointed to a judicial position. This data can then both
explain and guide the career choices of persons interested in judicial
positions.
In
our discussion concerning the appointment of judges, commentators of the Court
have argued that there must be some mechanism to assess and gauge the judicial
philosophy of the judges being appointed. Such an assessment is virtually impossible
without first asking what these judges did before they became judges. What was
the nature of their professional experience and in what manner and to what
extent has this impacted their judicial thinking. Without exploring their
professional past, there is no meaningful manner in which we can assess and
investigate the judicial thinking inside our Supreme Court.
[Note
– The description of the prior professional experience has been copied from the
information carried on the Supreme Court and High Court website(s) and has only
been edited for minor language changes].
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