Why Centre blocking nomination of two judges to SC collegium sets a bad precedent
It does not redound positively on the Modi government that the executive is seen to be resisting to accept the recommendation of the Supreme Court collegium to elevate justice KM Joseph.
Justice Joseph, as the chief justice of the Uttarakhand High Court, had led the bench that trounced the proclamation of the then president of India to resurrect the Congress state government.
The Union of India did not like it and possibly not forgotten it.
Reports suggest that citing breach of "seniority" the government has blocked recommendations sent by the Supreme Court collegium to appoint Uttarakhand High Court chief justice, KM Joseph, as a judge of the apex court, and justice Surya Kant of Punjab and Haryana High Court as chief justice of the Himachal Pradesh High Court.
Tagging on the candidature of justice Surya Kant appears to be a ruse to justify the reluctance of the government to accommodate justice Joseph. Reasons are not far to seek and it would not go down well with those who see the need for institutional integrity in ensuring independent voices as occupants on the apex court bench.
For the healthy functioning of democracy, there ought to be harmony between the three pillars - the executive, the legislature and the judiciary.
While no one institution can be seen to be kowtowing to the other, respect and regard for the role of the other is necessary.
Yes, the executive and the legislature are cut up over judicial transgressions into the territory of the other. There are undeniable instances of judicial overreaching seemingly belittling the roles of the other two pillars. But, to the informed, it would appear that it is the failure of the executive and the legislative branches to satisfactorily perform their roles that has led to the inexorable reality of the judiciary being "constrained" to fill in the breach.
Yes, the executive and the legislature may be peeved at the usurped right to appoint judges to constitutional courts to the collegium. It was an innovation conceived, introduced and being implemented by the apex court which was not even contemplated by the makers of the Constitution. It was veritable judicial legislation unheard of in the annals of any democratic jurisprudence. But it became a "necessary compulsion" as the executive was seen to be overreaching its domain and not laying store by meaningful "consultative" process with the judiciary represented by the chief justice of India.
Judicial appointments were getting "too political" in "committed candidates" for the nation’s comfort that the Supreme Court in the Second Judges Case in 1993 chose to take charge.
Ever since, the other two pillars have been trying to get even with the judiciary. Despite the cleavage in political opinions, the legislators got together, across the aisle to move a constitutional amendment and a legislation in the National Judicial Appointments Commission. Both Houses of Parliament passed the statute unanimously except for the sole dissent of Ram Jethmalani in the Rajya Sabha, toeing his own line.
The requisite number of state Assemblies also fell in line and the NJAC became a reality, only to be challenged before the Supreme Court by the Supreme Court Advocates-on-Record Association.
From day one of the proceedings, it was evident from what fell from the bench that the NJAC may not pass constitutional muster. The presence of the law minister in the decision-making body of the commission was held to be the "red rag" indicative and conclusive of political interference into the sanctified territory of "independent judiciary".
The rest of the challenge paled into insignificance, and despite the original expectation that the NJAC may after all sail through, since an otherwise divided polity had got together as one, after over two decades of repeated attempts, possibly with a "reading down" of the provision relating to the presence of the law minister and "eminent person" and making the elective body with an odd number, giving primacy to the vote of the chief justice of India. Alas, it was not be.
A 4-1 verdict with justice J Chelameswar alone in dissent meant the NJAC was confined to the dustbin of constitutional history.
The executive and the legislature appear to have been side-lined by the judiciary in a unique case of "judges anointing themselves" in a precedent of rarity. Arun Jaitley christened that as "unelected tyranny".
Latching on to the fig leaf on offer to put in place a consensual memorandum of procedure (MoP), the central government seems to be asserting the role of the executive. The MoP has been doing the rounds between the collegium and government, and the final version of March 2017 is lying unresponded to by the executive.
Incidentally, this issue was also flagged of by four of the senior-most judges when they went public on the roster control of the chief justice of India.
By convention, when the collegium reiterates its view, when sent back by the executive, it shall prevail. This is akin to the constitutional position when the cabinet seeks the nod of the president of India, and the president returns the matter for the cabinet to reconsider.
If the cabinet sticks to its recommendation, the president shall have to fall in line (Article 74 (1) of Constitution). It was a healthy convention, which the collegium recommendations also assumed, with the top court imprimatur.
It may do a world of good to the Modi dispensation to yield to the collegium recommendation for justice Joseph, whose credentials are otherwise with not a speck of doubt. In citing seniority as the basis for blocking, the executive appears to be inventing excuses for its political decision.
Not a healthy precedent to set, for sure.