Arbitrariness in the Viva Voce Stage of Civil Judge and Higher Judiciary Recruitment

Introduction

Few stages of judicial recruitment generate as much litigation, and as much unease, as the interview. A candidate who tops the written examination can find herself out of the final list because she fell a mark or two short of a minimum threshold in a thirty-minute oral examination scored by a small committee that records no reasons. The grievance is intuitive: the written paper is anonymised, model-answered and capable of re-evaluation, while the viva voce is face-to-face, impressionistic and effectively unreviewable. When the interview operates not merely as a tie-breaker but as an independent eliminating filter, the question of whether its criteria are “arbitrary” within the meaning of Articles 14 and 16 of the Constitution moves from the academic to the decisive.

This article maps the recurring complaints about the interview stage in recruitment to the civil judiciary (entry level) and the higher judicial service (District Judges), traces how the Supreme Court has treated those complaints over four decades, and sets out where the law stands today, including the matters now pending before the Court in 2025–26.

What candidates mean when they say “arbitrary”

The arbitrariness challenge is rarely a single argument. In practice it bundles together several distinct grievances, each of which has been pressed before the courts:

Disproportionate weightage. The first complaint is structural: that the interview carries too large a share of the total marks, giving the selection committee outsized power to reshape the merit list produced by the written examination. The fear is that a 200-mark written ordeal can be neutralised by a 50-mark interview.
Minimum qualifying cut-offs in the viva voce. The sharper and more modern grievance is the prescription of a minimum percentage within the interview as a condition of selection. A candidate who clears the written examination with distinction but scores below the interview cut-off is eliminated regardless of aggregate merit. This is the criterion that has driven most of the recent litigation, because it converts the interview from a weighting exercise into a pass/fail gate.
Subjectivity and the absence of structure. Even where weightage and cut-offs are within accepted limits, candidates object that interviews proceed without published assessment parameters, without audio-visual recording, and without recorded reasons for the marks awarded. The concern is not merely error but unreviewability: a score that cannot be explained cannot easily be challenged, and discretion that leaves no trace is difficult to distinguish from caprice.
Changing the rules midway. A separate and well-recognised head of challenge is the introduction or alteration of interview criteria after the recruitment process has begun, particularly the imposition of a cut-off just before the interview stage. Even courts that uphold cut-offs in principle treat their mid-process introduction as a distinct vice.
The narrowing ratio. Finally, candidates point to the small number of persons ultimately selected relative to those interviewed. Where the interview functions as the practical point of elimination, the scope for the committee’s discretion to determine outcomes is at its widest.

The constitutional frame

The doctrinal anchor is the equality code. Article 14 guarantees equality before the law and forbids arbitrary State action; Article 16 guarantees equality of opportunity in public employment. The settled position is that a selection method is not unconstitutional merely because it includes an oral component or vests discretion in a committee; it becomes vulnerable only where the method, or its application, is shown to be arbitrary, unreasonable or a device for extraneous selection. The courts have consistently coupled this with a posture of judicial restraint: the design of recruitment rules is treated as a matter of policy in which the rule-making authority, and in the case of the judiciary the High Court, enjoys considerable latitude.

The doctrinal trajectory

The early position: weightage and the Kothari caution

The Supreme Court’s earliest sustained engagement accepted that the worth of an interview varies with the post. In Lila Dhar v. State of Rajasthan, the Court recognised that for some posts the assessment of personality and bearing through an oral examination is appropriate and that the appropriate weight to be given to the interview cannot be fixed by a rigid universal rule.

The high-water mark of caution came in Ashok Kumar Yadav v. State of Haryana (1985). Dealing with selection to the State civil service, the Court held that both written and oral components are legitimate but warned against excessive interview weightage, invoking the Kothari Committee’s recommendation that interview marks ordinarily be confined to a modest percentage of the total. Crucially, however, the Court declined to lay down a single binding figure and acknowledged that higher and more specialised services might justify a larger interview component. That carve-out has proved important.

Subsequent decisions filled in the permissible range. In Mehmood Alam Tariq v. State of Rajasthan (1988) the Court accepted that prescribing minimum qualifying marks in the viva voce does not, by itself, render a civil-service selection arbitrary. In Mohinder Sain Garg v. State of Punjab (1990) and later cases the Court treated the allocation of roughly a quarter of the marks to the interview as defensible where the percentage was grounded in the functional requirements of the post rather than fixed arbitrarily.

“The judiciary is different”: the Shetty Commission and All India Judges (2002)

The recruitment of judges has always been treated as a category apart, and this is where the analysis for civil judge and higher-judiciary selection diverges from ordinary public employment. The Justice K. J. Shetty Commission, constituted to bring uniformity to the service conditions of judicial officers, examined the selection process and proposed an interview component carrying 50 marks. The Commission’s scheme did not itself prescribe a minimum qualifying cut-off within the interview, an omission later candidates would rely on heavily. The Supreme Court accepted the bulk of the Commission’s recommendations in All India Judges Association v. Union of India (2002).

The petitioners’ argument in later cases was essentially that All India Judges (2002), having adopted a Shetty scheme that prescribed no interview cut-off, foreclosed the High Courts from introducing one. The premise that the judiciary requires assessment beyond written knowledge, however, also flows from this line of authority: that integrity, temperament, aptitude and character are central to fitness for judicial office and are precisely the qualities a written paper cannot test.

The current rule: Abhimeet Sinha (2024)

The question came to a head in Abhimeet Sinha v. High Court of Judicature at Patna (2024 INSC 381). Six writ petitions under Article 32 challenged the constitutionality of rules prescribing minimum qualifying marks in the viva voce for appointment to the District Judiciary in Bihar and Gujarat. In Bihar the scheme required candidates to secure 60% in the main written examination and at least 20% in the interview; the Gujarat rules set a higher interview threshold. The petitioners argued that the cut-offs were arbitrary, that they conflicted with the Shetty scheme accepted in All India Judges (2002), and that they disqualified candidates with higher aggregate scores in breach of Articles 14 and 16.

The Court (Hrishikesh Roy and Prashant Kumar Mishra, JJ.) dismissed the petitions and upheld the cut-offs. Its reasoning is significant for the future of the arbitrariness argument:

It held that All India Judges (2002) was sub silentio on the question of a minimum interview cut-off, that is, it did not decide the point either way, and therefore could not be read as prohibiting one.
It reaffirmed that the appropriate weightage and the legitimacy of a cut-off turn on the nature of the post, with greater latitude for higher judicial offices where experience and personal attributes matter more.
It drew a sharp line between cut-offs notified in advance and those introduced midway. Both the Bihar and Gujarat thresholds had been published before the selection process began, and the Court treated this prior notification as a decisive distinguishing feature separating these schemes from earlier cases where mid-process changes had been struck down.
It emphasised the distinctive function of the interview for judicial posts, describing it as the means by which a candidate’s character, temperament and capability, as distinct from knowledge, are revealed.

The effect of Abhimeet Sinha is that a transparently pre-announced minimum interview cut-off for judicial recruitment is, as the law currently stands, constitutionally permissible and not arbitrary.

High Court application: exceeding the weightage “cap”

Lower courts have followed the same logic on weightage. In January 2025 the Punjab and Haryana High Court upheld a recruitment for Civil Judge (entry level) in Haryana in which the viva voce exceeded the 15% benchmark sometimes cited as a ceiling for ordinary services. The Division Bench reasoned that judicial recruitment is not equivalent to recruitment for an ordinary civil post, that integrity, aptitude and character are critical, and that a somewhat higher interview weight is therefore understandable. The decision illustrates how the “judiciary is special” rationale operates to relax the weightage discipline developed in the civil-service line of cases.

The tension that remains

The case law leaves an unresolved tension rather than a settled equilibrium.

On one side stands a coherent functional argument: that judging is not a knowledge test but a craft requiring temperament, courtroom sense, integrity and the ability to handle pressure, and that an interview, particularly for District Judges drawn from the Bar with years of practice, is a legitimate and even necessary instrument for assessing these. On this view a minimum interview standard is not arbitrary; it is the means of ensuring a basic threshold of suitability, and the problem of employability among large applicant pools makes such thresholds defensible.

On the other side stands the equality concern that no amount of functional justification fully answers. A cut-off applied to a short, unrecorded, reasons-free oral examination concentrates outcome-determining power in a few minutes of impression. Where the interview eliminates written-examination toppers, the perception, if not always the reality, is that aggregate merit has been displaced by something less measurable and more susceptible to conscious or unconscious bias, including along lines of region, language, social background or institutional pedigree. The absence of recording and reasons makes the difference between legitimate professional judgment and arbitrariness practically unprovable, which is itself a due-process objection.

The live questions in 2025–26

The debate is not closed. In May 2026 the Supreme Court (a Bench of CJI Surya Kant and Bagchi, J.) heard a plea arising from the Maharashtra Higher Judicial Service recruitment, in which a candidate who had scored among the highest in the written examination fell short of the 40% interview cut-off prescribed under the Maharashtra Judicial Service Rules and was eliminated. The Court indicated a willingness to examine whether prescribing a minimum qualifying threshold in the interview is appropriate, distinguished the entry level from the District Judge level (suggesting a lower interview weight is apt for fresh law graduates and a higher one for experienced candidates), and directed that comparative State-wise data on prevailing practices be collated. It observed that the broader question of a uniform national framework for judicial recruitment could be examined in proceedings already pending before a three-judge Bench.

Two threads are worth watching. The first is the renewed reliance on commission benchmarks: it was argued that an interview weight of 20% with a 40% internal qualifying threshold is inconsistent with the Kothari Committee’s recommendation that interview marks ordinarily be confined to around 12.5%, and lower still where written scores are high. The second is the push for uniformity. Recruitment criteria, including interview weightage and cut-offs, currently vary substantially across States, and the prospect of a single national framework, of the kind the three-judge Bench has been asked to consider alongside related questions such as the minimum-practice eligibility rule, would address the equal-protection objection that identically situated aspirants face materially different interview regimes depending only on the State in which they apply.

Toward a less arbitrary interview

Whatever the Court ultimately decides on the permissibility of cut-offs, several safeguards would narrow the gap between a defensible assessment of judicial suitability and an arbitrary one, and most are already implicit in the existing case law:

Advance notification. Following Abhimeet Sinha, weightage and any cut-off should be fixed and published before the process opens; mid-process introduction remains the clearest vice.
Proportion to the post. A graded approach, lighter interview weight for entry-level civil judges assessed largely on a written examination, somewhat heavier for District Judges drawn from experienced practitioners, tracks the functional justification the courts accept and is harder to attack as disproportionate.
Structured interviews. Published assessment parameters and a structured scoring rubric reduce the room for impressionistic variance between candidates and between panels.
Recording and contemporaneous reasons. Audio-visual recording and brief recorded justification for marks make the exercise reviewable, converting an unprovable grievance into a checkable one and protecting honest panels as much as candidates.
A controlled ratio. Calling a reasonable, rule-based number of candidates for interview relative to vacancies limits the extent to which the interview can override the written merit list.

Conclusion

The arbitrariness challenge to the interview stage of judicial recruitment has, so far, largely failed at the constitutional level. Abhimeet Sinha confirms that a pre-announced minimum viva voce cut-off for judicial posts is neither outside the rule-making power of the High Courts nor inherently arbitrary, and the High Courts have applied the same “judiciary is special” logic to relax weightage limits. Yet the questions the Court agreed to examine in 2026, the appropriate interview weight at different levels, the legitimacy of internal cut-offs, and the case for a uniform national framework, show that the equality concern has not been answered so much as deferred. The likely direction of travel is not the abolition of the interview, which is too deeply tied to the assessment of judicial temperament to be discarded, but its disciplining: clearer rules, fixed in advance, proportioned to the post, and made reviewable. An interview that can explain itself is far harder to call arbitrary, and that, rather than the existence of the interview, is where the constitutional pressure now lies.

This article is analytical commentary on the state of the law and the pending litigation; it is not legal advice. Case positions described here, particularly the matters pending before the Supreme Court in 2025–26, are subject to change as those proceedings develop.