March 27, 1948: Bombay High Court Chief Justice M.C. Chagla (sitting, extreme left) and Chief Justice of India Sir Harilal J. Kania (sitting, fourth from left) with Prime Minister Jawaharlal Nehru and the Chief Justices of other High Courts at the Gymkhana Club in New Delhi when they met to discuss the draft Constitution of India. Photo:The Hindu Archives
…………… FRONT LINE Print edition : February 7, 2014 ……
High Court Chief Justices are now considered inferior to Supreme Court judges. It was not always so, as is clear from the case of Chief Justice M.C. Chagla of the Bombay High Court who passed up an opportunity to join the new Supreme Court of India. By ABHINAV CHANDRACHUD
IN December 1949, the Chief Justice of the Bombay High Court, M.C. Chagla, did something that would be considered unthinkable today: he declined an offer to be elevated to the Supreme Court of India, preferring to remain a High Court Chief Justice. Against the backdrop of the recent events that have lowered the public image of the Supreme Court, Chagla’s decision reminds us that the Supreme Court of India should not be considered the best court in the country merely because it is India’s highest appellate court. In the winter of 1949, the Chief Justice of the Federal Court of India, Sir Harilal Kania, was preparing his court for a radical new beginning. For nearly a hundred years since 1858, India had been governed under a series of Constitutions enacted by the British Parliament. Despite becoming independent in 1947, India was still a British dominion then, regulated by the last of these Constitutions, the Government of India Act of 1935. Now, for the first time in India’s history, a new Constitution that had been written entirely by Indians was going to come into being. Kania must have known then that he would soon have to give up his knighthood, because the new Constitution prohibited Indians from receiving knighthoods even though it had long been customary in British India for senior judges such as Kania to be knighted. More importantly, however, India’s new Constitution was also going to replace the Federal Court of India with a new court called the “Supreme Court of India”, and it was with this in mind that Kania wrote a hopeful letter that winter to Chagla, inviting him to become a Supreme Court judge.
“My dear Chagla,” wrote Kania, “The Federal Court has to expand now very soon. I shall like to know whether you will like your name to be considered for an appointment before 26th January 1950.” For historical reasons, the new Constitution was going to come into force on January 26, 1950—a day on which all Federal Court judges would automatically become Supreme Court judges and the Federal Court would become the Supreme Court.
Court of lower status
At the time, it was not considered a “promotion” for the Chief Justice of a High Court like Bombay to be elevated to the Supreme Court. The provincial High Courts in India were courts of far greater antiquity, status and prestige than the Federal Court. Until 1937, India had no federal court, whereas the earliest High Courts had been set up as far back as 1862. The Federal Court of India was a weak court, with limited jurisdiction, and a tiny docket, and its decisions could be appealed before the Privy Council. By contrast, the Bombay High Court, in its colonial heyday, heard cases in the thousands and exercised vast powers of appellate jurisdiction over portions of modern-day Karnataka, Maharashtra, Gujarat, Sind and even Aden. Where High Courts like the Bombay High Court had nearly a dozen judges serving on them, the Federal Court had no more than three judges on it in the colonial era. The Bombay High Court was housed in a majestic building modelled on a castle on the river Rhine in Germany, whereas the Federal Court did not even have its own building. (It was only in 1958 that the Supreme Court got its own building.)
The fact that the Federal Court of India was inferior in status to the old High Courts of India was well known. In fact, it was for this reason that the retirement age for judges of the Federal Court was fixed at 65 even though High Court judges retired at the age of 60—the extra five years of service were meant to encourage senior judges at reputable High Courts to serve on the Federal Court of India. Even today, High Court judges retire earlier than Supreme Court judges even though the retirement age for High Court judges was raised to 62 in 1963.
Although the new Supreme Court of India was going to have more powers than the old Federal Court, it was still considered far more prestigious to be the Chief Justice of an old, reputable High Court than to become a junior Supreme Court judge. Kania knew this, and in his letter he tried his best to convince Chagla to accept his offer. “The advantage [of being appointed before January 26, 1950],” Kania explained, “will be that the Judges appointed before that date will be entitled to a salary of Rs.5500…. The Supreme Court Judgeship is bound to be offered to you later on also, but the peak of salary then will be Rs.4000 + a new…house. That may not be attractive at all.” Judges in British India were among the highest-paid officials in the world. In 1935, for example, the Chief Justice of the Bombay High Court drew a higher salary than the Chief Justice of the U.S. Supreme Court. However, salaries were going to be reduced for judges who were appointed in independent India. Kania explained to Chagla that if he were appointed to the Federal Court before it became the Supreme Court, Chagla would be entitled to the British-era higher judicial salary as a Supreme Court judge, not the new lower one.
The letter was written on December 1, 1949. For many days, Chagla did not respond. Kania grew anxious and wrote to Chagla again on December 22: “My dear Chagla,” he said, “Over two weeks ago I wrote to you a personal letter about your future career. I have not got from you any reply so far.” Chagla wrote two letters to Kania, on the 17th and 30th of December 1949 respectively, declining Kania’s offer. No copy of these letters survives in the Chagla papers at the Nehru Memorial Museum and Library in New Delhi. Instead, we know that Kania wrote back to Chagla soon thereafter, in a letter dated December 31, 1949, in which he said, “Your letter of the 30th instant, sent by express delivery, has just reached me…. I appreciate your point of view in remaining at Bombay, in any event at present. The future will take care of itself.” We can therefore guess that Chagla informed Kania that he preferred to stay on as Chief Justice in Bombay, politely adding that he might accept an offer to become a Supreme Court judge later on, sometime in the future. Thus, Chagla declined an offer to serve on the Supreme Court despite its many benefits—a higher salary, a later retirement date, and a chance to serve on the highest appellate court in India.
Three years later, a new Chief Justice of the Supreme Court of India, M.C. Mahajan, wrote a letter to Chagla, gently reprimanding him for not accepting a Supreme Court judgeship. Mahajan wrote: “I have always felt that it is men like [you] who should adorn the Bench of the Supreme Court. I wish you had made some sacrifice in this matter and not stuck to your high office which brings greater emoluments and more patronage in Bombay. We require in the Supreme Court men like you who will shed luster on this court. I am sure that in course of time you will transplant yourself here. But unfortunately I shall not have the privilege of sitting with you.”
The rise of Supreme Court
In the world we live in today, it is inconceivable to think of another Chagla: of a High Court Chief Justice who will decline an offer to serve on the Supreme Court of India. Serving on the Supreme Court is considered far more prestigious now than serving as the Chief Justice of a High Court. This is strange because High Court Chief Justices in India arguably wield far greater powers than junior Supreme Court judges. For example, High Court Chief Justices in India compose Benches, assign cases to judges, recommend names for judicial appointments, and oversee the entire administrative apparatus of the judiciary of a State. Courts in India usually sit in panels of two judges called “Division Benches” and High Court Chief Justices always “preside” over these Division Benches, which means that they exercise great authority on the Bench. By contrast, after being elevated to the Supreme Court, a High Court Chief Justice becomes the junior-most judge of the Supreme Court and ceases to preside over a Division Bench for a long time. High Court Chief Justices in India usually get grand, palatial bungalows to stay in, but the junior-most judges of the Supreme Court of India sometimes have to temporarily stay in apartments because there are 31 Supreme Court judges and not enough bungalows in Lutyens’ Delhi to go around. High Court Chief Justices are also paid the same salary as Supreme Court judges, which means that they are regarded as having the same status as one another.
Of course, the Supreme Court of India has risen in stature and importance since the 1950s. The size of its docket has expanded ominously and the court has become vastly more powerful than it was in Chagla’s time, which has brought the court a great deal of media attention. It is perhaps for this reason—the ability to more visibly exercise power at the national level—that High Court Chief Justices now prefer to give up their positions for a seat on the Supreme Court of India. Given our hierarchy-obsessed culture, retired Supreme Court judges might also be able to get better post-retirement government jobs than retired High Court Chief Justices.
In India’s legal profession, becoming a lawyer who practises at the Supreme Court Bar, or a judge who sits on the Supreme Court Bench is often considered to be the pinnacle of success. But should the Supreme Court of India be considered India’s best court merely because it has the final say in all cases? Recent events suggest otherwise.
A few years ago, the Delhi High Court decriminalised homosexual intercourse among consenting adults, by reading down Section 377 of the Indian Penal Code. This landmark judgment was recently reversed by the Supreme Court in a callous judgment, which has drawn harsh criticism from constitutional law scholars the world over. The Delhi High Court’s judgment in that case is considered far superior to the Supreme Court’s judgment. Perhaps even more worryingly, one of the Supreme Court’s former judges now faces allegations of a very serious nature: that he sexually harassed an intern in a hotel room in New Delhi. One wonders whether the Supreme Court of India is today a court of any greater status and prestige than the court Chagla declined to serve on in the 1950s.
Unfortunately, hierarchy has become a deeply ingrained part of our judicial culture. Judges are selected for the Supreme Court on the basis of seniority over merit. Young, junior High Court judges under the age of 55 are considered ineligible for a Supreme Court appointment no matter how brilliant they are. Lawyers who are under the age of 45 are likewise considered ineligible to be appointed to the High Court Bench, no matter how brilliant or deserving they are. Seniority counts for more in India’s judiciary than talent or merit. It is perhaps for this reason that High Court Chief Justices are now considered inferior to Supreme Court judges because they are less “senior” than Supreme Court judges. For India’s judiciary to return to the Chagla era, we must discard our penchant for seniority and hierarchy.
Although historians should avoid being presentist, Chagla’s decision to refuse to serve on the Supreme Court of India must remind us that the status and prestige of a court cannot be measured in terms of its position in the appellate hierarchy of the judicial system.
The Supreme Court of India may have the power to reverse High Court judgments, but in what might very well be its lowest hour, it has a long way to go before it establishes itself as India’s finest court.
Abhinav Chandrachud is a doctoral student at Stanford Law School, where he is writing a history of the Bombay High Court during the colonial era.