Former Supreme Court judges discuss the influence of caste in judicial appointments

14 June 2018

In the 1980s, George H Gadbois Jr, a young American scholar, conducted over 116 interviews with more than 66 judges of the Supreme Court of India—19 of whom had served as the chief justice. Through the interviews, in which the judges were surprisingly forthcoming, Gadbois took down detailed notes. In February 2017, Gadbois, by then a professor emeritus in the department of political science at the University of Kentucky, died due to a terminal disease. His typewritten notes survive him.

Relying on these notes, Abhinav Chandrachud, a writer and lawyer at the Bombay High Court, wrote the book, Supreme Whispers. The book covers a range of issues discussed during the conversations, including judicial rivalries, the lack of dissenting judgments, the judicial backlog and workload of judges, as well as judges who declined offers of elevation to the Supreme Court. In the following excerpt from the book, Chandrachud refers to Gadbois’s conversations with judges about the role and influence of caste identities in the decisions to appoint judges to the higher judiciary.

Caste considerations have had a role to play in judicial appointments. In June 1983, Justice Rajagopala Ayyangar told Gadbois that the backward community got all the advantages, that there were only a handful of Brahmins at the Madras High Court at that time. Likewise, TV Balakrishnan, son of the 1950s Supreme Court judge TLV Ayyar, said that since 1960, appointments to the Madras High Court were made on the basis of community and caste, that members of the forward community were discriminated against at that court and appointed late, and that there were just two Brahmins at the high court by June 1983. Balakrishnan said that the Madras High Court had not been appropriately represented at the Supreme Court because appointments to that court were made on communal considerations, not merit, and that consequently there were few competent judges at the Madras High Court.

Appointed in September 1956, Justice P Govinda Menon was the first non-Brahmin judge from south India to be appointed to the Supreme Court. He was previously a judge of the Madras High Court. Menon’s son said that there was an exclusiveness to south Indian Brahmins because they were Brahmins. He said that south Indian Brahmins were very traditional, not cosmopolitan. Justice ES Venkataramiah said that south Indian Brahmins were generally exiting to the US on account of a lack of opportunity in India. Chief Justice [BP] Sinha was accused of appointing judges who belonged to his Rajput caste, but he was able to convince Prime Minister Nehru that those charges were bogus.

Justice AP Sen told Gadbois that Brahmins used to dominate the judiciary at Calcutta, Bombay and Madras, but that caste was not a factor in the decision-making of courts. Justice P Jaganmohan Reddy believed that Brahmin judges were more conservative than others, because the whole Brahmin ethos was conservative. In 1980, Justice Krishna Iyer said that the Supreme Court was mainly Brahmin and upper class (no Scheduled Caste judge had been appointed to the court at that time). He concluded that judges’ backgrounds affect their decisions. Justice Madon added that since the time of Chief Justice PB Gajendragadkar, Brahmin judges from Bombay were preferred at the Supreme Court. He seemed to be especially angry with Chief Justice [YV] Chandrachud for seeking to appoint Brahmin judges from Bombay to the Supreme Court. He said that many high court chief justices made recommendations for judicial appointments on caste considerations and that it was not only the government which was doing so. He suggested that for this reason, the transfer-of-judges policy of the government, under which the chief justice of a high court was appointed from outside the state, was a good one, as it prevented chief justices from enforcing their own deep-seated caste prejudices in their own high courts. Another judge felt that his appointment to the Supreme Court was held up in 1979 because Chandrachud wanted to appoint a Bombay Brahmin, VS Deshpande, to the Supreme Court (though Deshpande was a Delhi High Court judge and chief justice).

Justice DA Desai, himself a Brahmin, found it humorous that the Karnataka reservations case, KC Vasanth Kumar versus State of Karnataka, was decided by a bench of five judges, none of whom belonged to the backward castes. He joked about five Brahmins making decisions about Scheduled Castes and backward castes. Chief Justice Pathak pointed out to Gadbois that all the five judges who decided the historic case of Kehar Singh versus Union of India, involving the scope of the presidential power of pardon, arising out of the Indira Gandhi assassination case, were Brahmins. In fact, Gadbois made a note that “Some Brahmin judges [are] very much aware of other Brahmins in high posts.” In 1988, Justice Khalid criticised the Brahmin dominated Supreme Court and suggested that both chief justices Chandrachud and Pathak preferred Brahmin judges. Justice Hidayatullah said that his name was proposed for appointment to the Supreme Court ahead of Justices K Subba Rao and KN Wanchoo, but that Nehru pushed him down in favour of Wanchoo, a Kashmiri Brahmin.

Justice AN Sen was disillusioned with the involvement of caste criteria in judicial appointments. He believed that if a Scheduled Caste judge was 40 percent competent, and a Forward Caste judge was 60 percent competent, then it would be fine to appoint the Scheduled Caste judge. However, if the Scheduled Caste judge was 0 percent competent, and the Forward Caste judge was 90 percent competent, then the Scheduled Caste judge ought not to be appointed. Sen was referring to the appointment of Justice BC Ray to the Supreme Court in October 1985 during the tenure of Chief Justice Bhagwati. Sen had recommended AK Sen (a senior Calcutta High Court judge) for the appointment, but Ray was appointed instead. Interestingly, Gadbois noted that Ray’s father was a zamindar, and his family was relatively well off. In fact, Chief Justice Pathak referred to BC Ray as being “very rich.”

Others disagreed. Justice Sabyasachi Mukharji, for instance, said that caste was never taken into account at the Calcutta High Court while making judicial appointments. Justice MH Kania said that while caste was not a factor at the Bombay High Court, it may have been taken into account in places like Andhra Pradesh, Uttar Pradesh and elsewhere. In a long, handwritten letter to Gadbois in 1984, Justice Chinnappa Reddy, who belonged to the Reddy caste, whose father was a fifth-generation Roman Catholic and mother a non-Brahmin Hindu, eloquently wrote, “I refuse to be classified to any religion or any community. I prefer to be a human being and an Indian. I will certainly feel offended if you call me a Hindu or a Christian or a member of any caste.” He also added, “I must say that I profess and practice no religion, my wife does not and my children do not.” Reddy was quick to point out that whatever the “origins” of Supreme Court judges were, “almost all” belonged “to the socially elite classes,” that  “human beings change their attitudes” with the “acquisition of knowledge, wealth, status and other symbols,” and that judges were no exception to this. Reddy also said that inquiring about the religion at birth of a judge was meaningless, because judges could change their religious views over time. He wrote about his friend, Justice Gangadhara Rao of the Andhra Pradesh High Court, who came from “a devout Brahmin Landlord family,” but was “an atheist and an ardent believer in Socialism and Marxism,” and about his friend Justice KA Muktadar, “at one time an agnostic and a believer in the humanism of Bertrand Russell,” who had “now suddenly found faith in Islam, the religion of his forefathers.”

Ironically, Chinnappa Reddy was appointed to the Supreme Court in July 1978 as a replacement for Justice KK Mathew, who had retired in January 1976. Mathew was a devout Christian, and Chief Justice Chandrachud, who appointed Reddy, thought that Reddy was a Christian too. It was only later that he realized that Reddy was not really a Christian. Reddy found it particularly amusing that after he retired, he was replaced by Justice TK Thommen, a Christian, who was appointed at least in part because he was a Christian, and was meant to represent Reddy’s identity on the court.

This is an excerpt from the book, “Supreme Whispers” by Abhinav Chandrachud, published by Penguin Random House in 2018. It has been edited and condensed.

Abhinav Chandrachud is a writer and a lawyer in the Bombay High Court. He is the author of Republic of Rhetoric: Free Speech and Constitution of India.

Keywords: caste Brahmins Supreme Court judiciary Judicial Appointments
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