Daily Times

When I was chief justice of a high court, there used to frequently appear before me a lawyer who on several counts deserved to be elevated as a judge of the court. I found him learned in law and courteous and never heard anything against his integrity. I was thinking of recommending his name for elevation but ultimately decided against it on learning that he was in a live-in relationship with a woman. For this, I have been criticised by many people. I owe the public an explanation.

We are living in a transitional period of Indian history. It is a transition from a feudal to a modern society. A clash of values is taking place in our society. Old feudal values are clashing with new modern ones. For instance, the caste system, which is a feudal institution, is still entrenched, but is being challenged by enlightened people. Gay sex has been decriminalised by the Supreme Court, but is still frowned upon by most people. Inter-caste and inter-religious marriages have started taking place, though still on a small scale. Dalits are still looked down upon by many, and for a dalit boy to marry a non-dalit girl is often an invitation to a death sentence by the girl’s relatives (the so-called honour killing ).Thus, a churning is going on in Indian society.

Personally, I see nothing wrong in a live-in relationship, as that is a private affair. But the truth is it is still frowned upon by a majority of Indians. For a lawyer to be in a live-in relationship may be acceptable, but not for a judge of a high court or supreme court.

Indian society being still conservative, I was of the opinion that the name of that lawyer, who was otherwise deserving, would almost certainly be blocked at some stage

Had I recommended the name of that lawyer who was in a live-in relationship I doubt that the recommendation would have been accepted. When the collegium of a high court (which consists of the chief justice and two senior-most judges) recommends a name for elevation as a high court judge, the recommendation has to pass through several stages. First, the name goes to the chief minister of the state. When the chief minister approves, it is sent to the Union law minister. The Union law minister sends it to the chief justice of India, who places it before the Supreme Court Collegium (which in the case of high courts consists of the CJI and the two senior-most judges of the supreme court ). When the Supreme Court Collegium approves it, the name is sent back to the Union law minister, who then forwards it to the prime minister. The Union government is ordinarily bound by the recommendation of the SC Collegium (according to the judgment in the Judges Case) but if it has some objection it can return it to the CJI (though it is bound if the name is again recommended by the SC Collegium). Finally, the prime minister forwards the name to the president for his signature. The president is ordinarily bound by the opinion of the prime minister, but if he has some objection he too can return the name for reconsideration.

Thus, a recommendation of the collegium of a high court has to pass through several stages before it culminates in an appointment by the president. At each of these stages it can be blocked, for a variety of reasons. And Indian society being still conservative, I was of the opinion that the name of that lawyer, who was otherwise deserving, would almost certainly be blocked at some stage.

This was the reason in my mind why I did not recommend that lawyer for elevation as a judge of the high court. The reader is free to judge whether I was right in my decision or not.

In England, at one point, the Lord Chancellor used to recommend names for elevation as a high court judge to the King (the system has been changed). When a Lord Chancellor was asked what was the criteria he adopted for such a recommendation, he replied “He should be a gentleman, and it would do no harm if he knew a little law”. The second part of the statement was, of course, in a lighter vein. The emphasis, clearly, is on the nominee being a gentleman.

Whether a person in a live-in relation is regarded as a gentleman (or a lady) can provoke a heated debate in today’s transitional Indian society.

The writer is a former judge if the Supreme Court of India