THROUGH THE FIRST, SECOND AND THIRD JUDGES CASES decided in the 1980s and 1990s, the judiciary gradually reasserted its authority over judicial appointments by the creation of the Collegium system. Ever since, critics have rightly pointed out the absence of transparency in the judicial appointments process. There is a lack of clear, publicly available criteria for selection or denial of appointment and a failure to disclose reasons as to how or why a candidate is suitable for appointment or not. The critics argue that this opacity and the absence of recorded reasons have fostered a climate in which corruption and nepotism can thrive, undermining both public trust and the integrity of the system. This problem persists today.
Although the Third Judges Case had held that the inter-se seniority of Judges within their High Court and their all-India seniority should be the primary ground for appointment to the Supreme Court, other considerations, such as merit and ensuring regional, religious and gender diversity, would also be valid considerations. However, due to the continuing opacity and secrecy, the departure from the seniority rule is often a point of speculation because the reasons for it are rarely disclosed.
In this piece, we look at a particular component from the various factors the Collegium takes into consideration in appointing or denying judgeship: the political affiliation of the candidate.
Why political affiliations of judges remains of concern
Two recent examples bring the problem to the fore. In December 2024, Justice Shekhar Kumar Yadav of the Allahabad High Court spoke at a Vishwa Hindu Parishad event. Though addressing the Uniform Civil Code, he endorsed majoritarian rule and used phrases like "Humaari Gita, aapki Quran", our Bhagavad Gita and your Quran, and the derogatory term "kathmullah", used against Muslims. Following widespread outrage over his remarks, 55 Rajya Sabha MPs wrote to the Vice President, who chairs the Upper House, asking to start impeachment proceedings against the judge.
Notably, back in 2018, as a puisne judge of the Supreme Court, Justice D.Y. Chandrachud had opposed elevating advocate Yadav to the Allahabad High Court, citing Yadav’s limited experience, ties to the Rashtriya Swayamsewak Sangh (‘RSS’), and close relationship with a BJP Rajya Sabha MP who later became a Union minister. Despite these concerns, the Supreme Court Collegium- led by then Chief Justice Ranjan Gogoi had recommended Yadav’s appointment as a judge of the Allahabad High Court.
Another important example is the elevation of Justice Lekshmana Chandra Victoria Gowri to the Madras High Court in February 2023, who had openly been affiliated with the BJP and had been state in charge of its Mahila Morcha. Her appointment was challenged on this basis, and also on the basis that her statements constituted hate speech against Christians and Muslims.
In various articles and videos, published between 2012 and 2018, Justice Gowri delivered statements such as:
“As far as India is concerned, I would like to say Christian groups are more dangerous than Islamic groups. Both are equally dangerous in the context of conversion, especially Love Jihad.
…
The list of Christian aggression is not ending. ‘Where there is a temple, there must be many Churches’ (sic) is their aggressive motto.”
In February 2023, the challenge to Justice Victoria Gowri's appointment was dismissed by the Supreme Court primarily because the Court found that it could not interfere with the suitability of a judicial appointment, only its eligibility and that issues of hate speech fell under "suitability".*
While those who have a direct affiliation to the Party in power or socio-political organisations connected to it have been appointed despite opposition, others who have been even mildly critical of the political establishment and had been recommended face an impasse or have withdrawn consent to become judges.
Senior Advocate John Sathyan is a case in point. He was recommended for Madras High Court judgeship in February 2022, but an Intelligence Bureau report objected to two social media posts that were “critical of Prime Minister Narendra Modi”. Despite reiteration of the recommendation by the Collegium, no official notification of his appointment had been issued.
There is a lack of clear, publicly available criteria for selection or denial of appointment and a failure to disclose reasons as to how or why a candidate is suitable for appointment or not.
Another example is that of Senior Advocate Aditya Sondhi. He was recommended for Karnataka High Court judgeship in February 2021 by the Supreme Court Collegium. Although the government sent back his file, the Collegium reiterated its proposal. Despite the reiteration, the Centre did not notify his appointment. Eventually, he withdrew his consent and as per an interview with the media, he suspects that his remarks at a public event against the Citizenship Amendment Act, 2019 could have been a reason.
These examples raise important questions: Does direct political affiliation itself make one unsuitable for judgeship? What has been the history of appointments of Judges with direct political affiliations or who have expressed a clear political ideology?
In making appointments to Constitutional courts, namely the High Courts and the Supreme Court, is mere 'technical' professional competence enough ? And if a lawyer of integrity has professional competence, are those enough to warrant her appointment to the Bench?
Distinguishing political affiliations and prejudice
We ask this question, in the specific context of the relevance of a Judge's political views and political past. The problem, we argue, is not one of political beliefs or world views. In fact, we argue that it is essential that judges of Constitutional courts have political understanding, which can only come either from participation, exposure or at least a deep understanding of the political process.
One of us has, in an article in The Print, argued, with examples, that the problem is not of political beliefs but of partisanship, as there is a rich history of Judges having political pasts. Two judges in the Supreme Court’s history were jailed during the freedom movement. Justice Bachu Jagannadhadas, a Congress member, was jailed during the Quit India Movement, and Justice Jeevan Lal Kapur was jailed in the 1930 Salt Satyagraha.
Justice K.S. Hegde, once superseded for the position of the Chief Justice of India in 1973, entered politics as a Lok Sabha Speaker after his judicial career. Justice V.R. Krishna Iyer was an independent MLA supported by the Communist Party and served as a minister in Kerala's first Communist government. Justice P.B. Sawant belonged to the Peasants and Workers’ Party; Justice S. Ratnavel Pandian was a DMK district secretary before joining the bench. Justices Aftab Alam and V. Gopala Gowda were affiliated with the Communist Party of India and Communist Party of India (Marxist), respectively, before their judicial roles. Justice Baharul Islam, a two-time Congress Rajya Sabha member, resigned from the Supreme Court in 1983 to return to politics.
Several prominent High Court judges have had strong political or ideological ties. Justice V. M. Tarkunde of the Bombay High Court (on the bench between 1957 to 1969 ) was closely linked to the revolutionary, M. N. Roy, and served as general secretary of the Radical Democratic Party, from 1944 to 1948. In fact, when objections were raised to his being elevated because of his political past, the then Chief Justice M.C. Chagla put his foot down and ensured his appointment, taking the view that a lawyer without political beliefs was not worth his salt.
Justice Rajindar Sachar, who retired as Chief Justice of the Delhi High Court in 1985 and was among Indira Gandhi’s “transferred” judges, had earlier been a member of the Socialist Party. Justice M. Rama Jois, later Chief Justice of the Punjab and Haryana High Court, was associated with the RSS and Bharatiya Jana Sangh before his judicial appointment and went on to a political career in the BJP after retirement in 1992.
A clearer process to account for past prejudice
Plurality of political ideologies and affinities, much like diverse identities on the bench enhance the richness of judicial discourse. In the cases of Justices Yadav and Gowri, it is not merely their political affiliation to the party in power but the views expressed by them, which demonstrate a clear bias and prejudice against particular groups of citizens.
For the Collegium to effectively account for this factor in a manner that may be transparent, it is critical that the Collegium formalises the procedure by which past express demonstrations of prejudice against specific groups of citizens are considered.
For this, certain longstanding ailments within the procedures will have to be addressed. As per a document released by the Supreme Court in May 2025 under the tenure of Chief Justice Sanjiv Khanna which details the process adopted for appointment of High Court judges, the ‘bio-data’ of a judge, which is given “due weightage” for considerations includes a section where candidates are obliged to disclose any political affiliations. Similarly, Intelligence Bureau inputs may also highlight past political affiliations. However, the document does not detail any record-keeping on past demonstrations of prejudicial behaviour against citizen groups.
Does direct political affiliation itself make one unsuitable for judgeship?
A possible means to record such information is through a more transparent mechanism for examination of complaints and representations about the candidate. While the current process highlights that complaints and representations on candidatures are accepted, it does not detail a mechanism by which they are received, verified or disposed of.
While political diversity within our judiciary is welcome, the Collegium’s failure to guard against the possible seepage of judges with prejudice or bias against specific groups of citizens has been deeply troubling. A transparent and rigorous mechanism must be put in place.
Disclosure:
One of the co-authors led the team of lawyers who challenged Gowri’s appointment before the Supreme Court.