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Nepotism – The New ‘N’ Word?

INTRODUCTION

Nepotism, a term that has been on headlines, social media, and the talk of the town for a long time now. It is an issue that everyone shies away from talking and one blanket statement that everyone has to say about nepotism is that it is present everywhere. This article seeks to travel into the concept of nepotism and further introspect its existence in the judicial system as well. The author has also included some suggestions based on the history and cases in the conclusion.

WHAT ACTUALLY IS ‘NEPOTISM’?

The term ‘nepotism’ is not legally defined anywhere. But nepotism is defined as “the act of using power or influence to get jobs or unfair advantages for members of one’s own family.”[1] Further, in the world of business, nepotism is the practise or act of showing favouritism to a particular person’s family members, friends or relatives in terms of employment.

One of the most common arguments that is put forth against nepotism is that the emotional ties that exist between the people who are related may have a negative effect on their abilities to take a fair decision and in their professional growth. In the past, many businesses sought to avoid even minute circumstances of nepotism by prohibiting one’s kin from working together. This scenario started changing as women started entering the work force and rose to elevated positions in their work space. Often, since some female employees were too valuable for the organization to lose by virtue of marriages, the employers chose to accommodate relations of the female within a particular structure or system, instead of implementing stringent anti-nepotism policies, especially when there exists no direct or straight link between the posts of such employees in the supervisory level.

In some countries, people try to implement anti-nepotism policies to keep away with this sort of favouritism. Anti-nepotism policies are basic policies of the management, applying which an organization seeks to prohibit supervision of the work of a family member by another family member, appointment of a relative in the same department where a relative is appointed or exerting influence by a person over a relative’s appointment, promotion, pay-scale, re-appointment etc.

Craig E. Aronoff, one of the leading experts in the field of family business and John L. Ward have suggested in their book that family members start building their association with a certain business by working part-time or doing internships there during their school time. In addition to this, they have stated that the companies who employ family members should communicate clearly to those individuals that they would be fired from service for any sort of illegal or unethical behaviour, despite the family ties. Finally, they also recommend that family businesses encourage their employees to take care of outside associations so as to avoid problems related to a scarcity of creativity or accountability in management which is a very efficient and effective way to ensure that despite bringing personal contacts into the business, one can still keep away from nepotism.

NEPOTISM IN INDIAN JUDICIARY?

The Constitution of India distinctly states that the executive shall have the power to appoint judges after consultation with the judiciary. Article 124 and Article 217 of the Constitution are the provisions relevant to appointment of judges.

Article 124(2) reads: “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”[2]

THE SYSTEM OF COLLEGIUM – WHERE IT ALL BEGINS:

There is a history through which the judiciary travelled before the collegium system was devised. In the case of S.P. Gupta vs. Union of India[3], the Supreme Court by a majority, held that the concept of primacy of the judge of India isn’t found to be within the Constitution. It was also held that the proposal for appointment of judges to the Supreme Court can emerge from any of the constitutional functionaries mentioned under Article 217 and not necessarily from the judge of Supreme Court. It was also held that consultation isn’t concurrence. This means that though the President would consult the functionaries, his decision need not be in concurrence with them all. This further implied that if the President wished to do so, he / she could appoint without agreeing to any of the functionaries.

Later, in Supreme Court Advocates-on-Record Association v. Union of India[4], the 9 judge bench of the Supreme Court not only overruled the selection in S.P. Gupta Case but also reverted judicial appointments and transfers back to the CJI and stated that he/she only needed to consult two senior-most judges. This case is commonly addressed as the “Second Judges Case”.

So as to bring in more clarity into the matter, the then President sought reference from the Supreme Court and hence, in the Third Judges Case[5], the Supreme Court laid down that the CJI must consult with a plurality of minimum four senior-most judges of the Supreme Court to form his/her opinion. 

Section 5 of the Act provides for the procedure to be followed for the selection of Judge of the Supreme Court and Section 6 provides for the procedure to be followed in the process of appointment (for the selection of Judge of High Court) of a Judge of the High Court.[6]

PITFALLS OF THE COLLEGIUM SYSTEM:

Arbitrariness:

The procedure for appointment of two eminent persons to serve in the NJAC[7] provides no specific criteria or process to evaluate the ‘eminence’ of those persons. The committee comprising of the Prime Minister, opposition leaders and the Chief Justice of India are left with the freedom of determining the eminent persons. This, in itself has proved that the system has loopholes for favouritism to act up when needed. A system that fails to provide for criteria of evaluation violates the fundamental rights that provide for protection against arbitrariness.[8]

Power of Veto:

One of the major problems in the legislation relating to judicial appointments – National Judicial Appointment Commission Act[9] is that it recognises the veto power of two members of the Commission. This power given to any two members of the NJAC would again mean that there is scope for arbitrary approach in decision making within the NJAC. No criteria was laid down as to the exercise of this veto power which again proves to be violative of the Constitution.

Violation of Basic Structure:

Besides the aforementioned pitfalls, the system is also violative of the basic structure of the Constitution since the body which was created by the Act possessed no salient features of the body which it sought create. The basic structure of the constitution provides for an independent judiciary and separation of powers from the legislative wing. By the introduction of the NJAC, it is seen that legislature may intervene with the process of the judiciary in its decision making.

From the above discussion, it is evident that prior to 1993, the executive have been muzzling with the judiciary regarding judicial appointments and the Collegium system was evolved to ensure the separation of powers of judiciary from executive and for independence of the judiciary. For decades together, appointment of judges have been made by the judges.

Further, Hon’ble Justice Markandey Katju publicly places allegations on the system stating that certain appointments were being undertaken based on criteria that was unknown, despite being allegedly corrupt. The renowned judge in his disclosure also created quite a storm by stating that there is corruption in the higher judiciary and the Judicial Appointments Bill. He further stated his opinion that corruption could creep into the collegium system too, despite being the best.[10] 

Different eminent jurists, from time to time, have expressed their opinions about the impartiality of the system of Collegium. Various detractors of NJAC too, have argued that the existence of political element would destroy the basic idea of judicial independence.

According to Justice Chelameswar, who was a keen external observant of the dynamics of the Collegium system for a few years, felt that since its constitution, the system had not maintained a record of its meetings. By this he indicated that an absence of record would imply that there is scope for arbitrariness in decisions. The CJI could present opinions of the Collegium as unanimous decisions thereby suppressing dissenting opinions within the body. This issue of ‘lack of record’ was in question in the nine-judge bench’s ruling within the Second Judges case of 1993.

The Supreme Court, in the Third Judges case[11], gave an advisory opinion to the President and further held that opinions of all members of the Collegium with respect to every recommendation made by them should be recorded in writing. Further, the Court held that the ascertaining views of even the senior-most Supreme Court judges hailing from different High Courts of the country, from where the recommended persons come, must also be recorded in writing.[12] From this verdict of the Supreme Court, it has been made clear that the Supreme Court made it mandatory for the Collegium to take care of the process and maintain a record of its proceedings including the reasons for recommendation or rejection a candidate by the members of the Collegium.

If one among the members of the Collegium dissents on the advice of a specific judge, then the Government can request the Collegium for reconsideration of the advice on this ground. However, such a recommendation is binding on the Government if the Collegium reiterates it, but such reiteration has got to be unanimous for the Government to simply accept it. Thus, a dissenting member of the Collegium gets a chance to exercise the choice to ‘veto’ a recommendation while reconsidering it. Paragraph 26 of the Third Judges case judgment, clearly states that only a unanimous reiteration entails a meeting. Therefore, if the Collegium fails to keep a record of its proceedings, the Government would have no knowledge as to whether the first recommendation was unanimous or the reiteration. In such a state of affairs, the Government is compelled to rely on the word of the CJI. But, if the opposite Collegium members express their dissent to the opinion of the CJI, adhering to the CJI’s word despite such opposition would create minor issues to the Government.

Hon’ble Justice Rang Nath Pandey wrote a letter to the Hon’ble Prime Minister Narendra Modi wherein he alleged “nepotism, favouritism & casteism” with regard to appointment of judges to the Higher Courts. He called this process of appointment “unfortunate”.[13]

He further condemned the 2015 judgment of the Supreme Court. This decision sought to offer the society and politicians a say in the matter of appointment of judges to various courts. It further eliminated the Act and the 99th Constitutional Amendment. It is perhaps for the primary time that a sitting Supreme Court judge has written to a major Minister criticising the method of the judicial appointment.[14]

The Kerala High Court has closed a contempt of court proceeding against a person who alleged corruption and nepotism in the process of judicial appointments in his news article. When the matter reached the division bench, the person, who initially defended his article, later offered an unconditional apology. He also proposed to publish a corrective statement-cum-apology in a regional newspaper which has wide circulation in Kochi.[15]The Hon’ble Court closed the case agreeing to his offer of publish the statement-cum-apology.

WHAT CAN BE DONE?

A major step towards reforming the state of Indian judiciary is to idealise elimination of nepotism and working towards it. A major problem referred on the lines of nepotism is the happening trend of judges having their relatives practicing in the same courts as theirs.

The government had proposed some recommendations to help reform the process of judicial appointments. Some of them are:

  • Setting an age limit for appointment of judges.
  • Giving the Chief Ministers, Attorney Generals and Advocate Generals a right to opinion in the matter of appointment.
  • Following the criteria of seniority, integrity and merit while promoting the Chief Justice of a High Court or a judge, to the Supreme Court.
  • While overlooking, a judge or Chief Justice for elevation to the Hon’ble Supreme Court, reasons for such a decision should be recorded in writing. The views of all the five judges of the Collegium must be informed or made known to the Government, in writing.
  • A committee to be constituted as an institutional mechanism to help aid the Collegium in matters regarding evaluation of prospective judges.
  • Creation of a Secretariat under the Law Ministry to help keep a record of the database of judges, the meetings held by the Collegium, for maintenance of records and for receiving recommendations/feedback with regard to the posting of judges. This would prove to be an anti-nepotism measure and help provide a wider net for better and deserving candidates and also help the Collegium make better decisions.
  • Striking down the names of those judges whose Intelligence Bureau Report is negative from the list of names kept for judicial appointment to the Supreme Court.[16]
  • The Collegium system could be replaced by a more democratic system so that the most deserving person assumes the post of judge without any streak of nepotism.

CONCLUSION:

It is quite easy for everyone to express a common opinion on judiciary and politics. A common presumption in the country is that politics and judiciary are very strange-bed mates while corruption and nepotism are the factors keeping them together. It is not false that there has been multiple instances of nepotism by which it is seen as though the system responsible for delivering justice is hamstrung. The system of judicial appointments, in our country has always been oscillated between extremessince the past few decades – be it excessive political interference or the opaqueness of the Collegium system which is claimed to be the best. No time is a perfect time to change things but now. Once the thought arises, it would be simple to strike a balance and ensure that the deserving get to the deserved places. When right thinking citizens get involved in this process and strive to provide opportunity for the judiciary to redeem itself of the power play and politics, the judicial process can act fairly, thereby, shunning the clutches of nepotism forever. 


[1] The Cambridge Dictionary (Online): https://dictionary.cambridge.org/dictionary/english/nepotism.

[2] INDIA CONST. art.124, cl. 2.

[3] AIR 1982 SC 149.

[4] AIR 1994 SC 268, (1993) 4 SCC 441.

[5] Supreme Court Advocates on Record Association v. Union of India, AIR 1999 SC 1(India).

[6]National Judicial Appointment Commission Act, 2014, No. 40, Acts of Parliament, 2014(India).

[7] National Judicial Appointment Commission, supra

[8] INDIA CONST. art. 14.

[9] National Judicial Appointment Commission Act, 2014, No. 40, Acts of Parliament, 2014(India).

[10] Anuj Agrawal, Justice Katju and judicial appointments: A summary, Bar and Bench, (2014), (https://www.barandbench.com/news/justice-katju-and-judicial-appointments-summary).

[11] AIR 1999 SC 1.

[12]  Re Special Reference Case, AIR 1999 SC 1 (India).

[13] Aditi Singh, Collegium fraught with opaqueness, favouritism: Allahabad HC judge writes scathing letter to PM Narendra Modi, Bar and Bench (2019) (https://www.barandbench.com/news/collegium-favouritism-justice-rang-nath-pandey-allahabad-high-court-narendra-modi).

[14]  Krishnadas Rajagopal, National Supreme Court verdict on NJAC and Collegium System, The Hindu; (2016) (https://www.thehindu.com/news/national/supreme-court-verdict-on-njac-and-collegium-system/article7769266.ece).

[15] Ashok K.M, Kerala HC Closes Contempt Case Against Journo Who Alleged Corruption, Nepotism In Judicial Appointments, Live Law (2017), (https://www.livelaw.in/kerala-hc-closes-contempt-case-journo-alleged-corruption-nepotism-judicial-appointments-read-judgment/).

[16]  Madan B Lokur (Rd. Judge, Supreme Court), Justice Delayed, The Indian Express, (2019) (https://indianexpress.com/article/opinion/columns/indian-judiciary-vacancies-reforms-5921765/).

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Author

Reshmitha G. Sarma
Student - SASTRA Deemed to be University