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Seniority on trial

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LESSONS FROM THE PAST: Retired Lt General S K Sinha (left), who was passed over in spite of seniority, traced the seniority principle to the time of Viceroy Lord Curzon.

Research has revealed that the birth date row that the army is grappling with now is one that the judiciary is not unfamiliar with. The seniority principle may have been started to keep political interference at bay but it also alienates some highly competent people and can result in ridiculously short tenures. It’s time for some creative thinking.

Perhaps Chief of Army Staff General V K Singh should have expected the respectful, but firm, rebuke he received from the Supreme Court on Friday. He and his legal team may not have realised it, but the matter of seniority based on birth dates is one of some relevance for the Court itself. The army and judiciary are two very different institutions, but on this issue there are some interesting parallels and past history.

Justice R S Bachawat is probably best-known today for his post-judiciary job of chairman of the Krishna and Godavari Water Disputes Tribunal. The scheme for sharing of waters that it recommended keeps coming up in relations between the southern states. But as is noted in the recently published Judges of the Supreme Court of India 1950-1989, a detailed compilation by George H Gadbois, Professor Emeritus of Political Science of the University of Kentucky, of interviews and information on all the judges across four decades, Bachawat's birth date was not August 1, 1904, as is given in official records, but July 18, 1907.

Gadbois, who interviewed Bachawat in 1983, three years before the judge's death, says that Bachawat was open about the fact, and brought it up himself. He writes that Bachawat told him that "his date of birth was changed by his parents when he was thirteen. Had he matriculated at that age, he would have had to wait until age sixteen to move on to the next level of schooling". But this fairly understandable parental push for a bright child backfired years later when Bachawat's tenure was cut short by three years (though it's equally possible he might not have been appointed to the Court as early if his real birth date was known).
Bachawat, unlike the Army Chief, chose not to make an issue of this and retired early. Nor was he the only one. In an email interview, Gadbois says that there were two other judges who told him that their official birth dates were incorrect: "In these instances, as with Bachawat, they were actually less than 65 when they retired from the Court. Although these two volunteered this information (I hadn't asked), both asked that this matter be 'off the record'. " The discrepancy, they said, was because record-keeping was not good when they were born. "Both were transparently honest men, " adds Gadbois.

In the case of General Singh various explanations have been advanced for the error, but the cases of these judges shows how common it can be. Record keeping was, and in some places still can be, fairly irregular and, of course, it is rarely seen as a major issue at that point - even the most ambitious parents probably aren't imagining their babies as judges or generals facing seniority issues. On the other hand, as Bachawat's case shows, parents can easily alter details, sometimes just by a few hours to gain some astrological advantage, but sometimes even a couple of years to gain an academic edge.

And while all record-keeping should be as rigorous as possible, one can sometimes sympathise with the parents. When you have a bright kid as Bachawat was, (a gold medallist in mathematics from Calcutta University, he did an MA in economics before shifting to law;Gadbois notes that he was "an excellent judge whose value, I think, has been overlooked" ) it seems a pity to be bound by rigid institutional rules. The problem really seems to be less about the fiddling than about a system where seniority has become the rigid rule for promotion - or perhaps about why both the Army and Judiciary have allowed this to happen.

LOOKING BACK


The answer to this is, fairly clearly, a fear of political meddling. In one of the more interesting articles written on the Army chief's case, retired Lt General S K Sinha, as an officer whose seniority was passed over for political reasons might be expected to have special interest in the subject, traced the start of the seniority principle to an even bigger historical row - the conflict between Viceroy Lord Curzon, and Field Marshal Kitchener, over the role of the Viceroy's military adviser, which lead to Curzon's resignation in 1905.

After this the post of the military adviser was abolished, but now it was felt that the Army chief might become too powerful, so a system was adopted of creating a group of senior officers around him from whom his successor was selected by strict seniority. Post-Independence this principle was (mostly) adhered to and, as Sinha notes, "has become more desirable when we have a 'committed bureaucracy. ' It can help ensure the Army remains apolitical. " The argument of merit is answered by the fact that to reach that senior group one has to have a certain quality, so that none of the officers will be undeserving of the top post.

DEFAULT SYSTEM


This is essentially the same system that the Supreme Court is now following, for different historical reasons. After experiencing the trauma of direct government intervention, with the supersession of judges in the 1970s, the Court has steadily moved to taking control of its own affairs, and strict seniority has again seemed like a sufficiently objective basis on which to operate. The collegium of senior-most judges is the equivalent of the army's group of senior officers, though the seniority principle covers even entry into that group. "With so much distrust in the system, it has apparently become the default criterion of the collegium, " says Gadbois.

In both cases it is easy to sympathise with the desire to avoid political meddling, but as the case of General Singh seems to indicate, seniority doesn't remove this, it just adds byzantine layers of complexity. An arcane system of number counting now seems to operate in both army and judiciary where any possibility of promotion, any sickness or sign of resignation, gets calibrated in terms of its cascading effect on seniority. And far from removing political meddling, it just shifts it down the line and within the institution itself, where it is less visible, and hence harder to control, than it would be with a straightforward political choice at the top.

Even if one argues that such diffused and indirect influence is preferable to the shock and loss of confidence of an overt political choice, there are two further problems that stem from seniority. The first is that it puts off people from taking part in the system - people who might be otherwise highly competent, but are disadvantaged by or disinclined to accept the strictures of seniority.
Gadbois says that he has met "brilliant high court advocates who refused to accept high court appointments because they came 'too late' . . . or because a junior had reached the high court ahead of them. " It might be instructive to look at how mid-career resignations from the army are linked to the disillusionments of the seniority system, and the cost to the army from this.

The second problem, which probably affects the judiciary more than the army, is how seniority cuts short careers. While few would argue for the unrestricted terms that judges enjoy on the US Supreme Court, we have ended up with the unsatisfactory opposite extreme where a chief justice's term may last just a month or two before his retirement date kicks in. One of the arguments being used against General Singh is that his later birth date would give him an 'unacceptably' long tenure of three years. Chief Justice Kapadia is also being spoken of as having an unusually long term of over two years and four months. Are there many other professions with such short tenures, and can any institutional head achieve much in such a short span?
Gadbois notes that the negative effects are felt at all levels: "The rapid turnover is de-institutionalising. I have been told by some judges that it took them a year or longer to adjust to the SC/Delhi! A few elderly appointees told me that they accepted the invitation because the additional three years increased their pension. This is not a good reason. " The waste of talent is also regrettable. "India produces excellent judges - this is an extremely important observation, which I don't think enough Indians understand, " says Gadbois. In some cases, he says, the judges may not have been up to the mark when appointed to the Court, but "upon taking their seats on the SC, surrounded by portraits of distinguished predecessors and at the centre of judicial power, they became better men than they were. " Short tenures cut this whole process short.

SOUTH AFRICA MODEL


There is no simple solution to the seniority issue. The idea of a Judicial Appointments Commission, which is currently in favour with many politicians, (who, it should be noted, enjoy the one profession which combines weightage for seniority with no limit on tenures) can easily be subverted. A good example is from South Africa;a country which like India has transitioned from a colonial system to one led by an acclaimed new constitution. The judges on their Constitutional Court serve fixed and non-renewable 12-year terms, and are recommended by a commission for the executive's final choice. But the executive recently disregarded the Commission's views to pick an undistinguished, but apparently politically acceptable, judge to be first a justice and then chief justice, which position he will now enjoy for 12 years.

Despite this example, it's possible to envisage other scenarios where executive choice is subject to various constraints. The Senate confirmation hearings that US justices undergo can become a circus, but this does force a certain rigour on the selection. Arun Jaitley's recent speech in the Rajya Sabha during Justice Sen's impeachment laid out interesting criteria for a judicial commission led selection (quantifiable minimum qualifications, a commission made up of representatives of all different parts of society, etc). And finally, Gadbois makes a valid point when he notes that, until the point where the judiciary took control, "many of the judges whose appointments were initiated by the executive were, in fact, good ones".

What is needed then, from the judiciary as much as the army, is not a rigid defence of the seniority system, but an acknowledgement of its faults, along with recognition of the reasons why it has persisted, and an attempt to come to creative solutions all around. Now with both institutions being forced to face the issue, if some such thinking can take place, it might be one way of deriving some benefit from the otherwise sorry spectacle of General Singh's case.


vikram. doctor@timesgroup. com

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