SC versus government war over judicial appointments looks far from over

Any attempt to saffronise the judiciary must be closely watched.

 |  5-minute read |   06-02-2017
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The appointment of judges to high courts and Supreme Court is all too important to the working of the Constitution. If politicians derive power from political texts, then judiciary is the custodian of the justice and rule of law texts of the Constitution.

In 2016, there was a huge battle — can be even called a war — between the government and SC over judicial appointments.

The appointments

The then Chief Justice of India (CJI) Thakur did everything he could to make individual appointments in the HCs and SC. He wept, cajoled, remonstrated, shouted and threatened. It was to no avail.

Even though SC has the over-riding power over judicial appointments, the government — somewhat unconstitutionally — held its ground. Appointments were stalled. Is this the battle-royale between the judicial and political custodians on judicial appointments?

Enter the new CJI JS Khehar. On January 30, 2017, some writ petitions were filed to pray filling the judicial vacancies in the HCs. Attorney General Mukul Rohatgi, not known for compromise in these matters, thundered (as he always does) that the SC was ill advised to entertain these petitions as part of its judicial power.

js_020617090221.jpg CJI JS Khehar with PM Narendra Modi.

“No” he said. “The SC should deal with delay in judicial appointment in HCs on the administrative and not lend its weight to public interest petition (in this area)”. CJI Khehar was even more than emphatic in his reply: “Once the petitions have been entertained, whether to grant them or not... This question will be answered by us in a formal order. We will give the order”.

So the question: is the controversy over? The answer may well be that it is alive and well and it will continue.

The role of the collegiums is to make a selection. The Union government does a security check; and then either agree or return the list to the SC. On such a reference, the SC’s second look is final.

Unfortunately, the government, having lost the appointment case (2016), is now testing and teasing the court. The court does not want to use its ultimate brahmasthra of making judicial orders to resolve the issue and wants an administrative settlement provided there is a meeting ground which recognises the court’s supremacy.

On February 2, the SC formulated a new list of potential appointees: Naveen Sinha (CJ Rajasthan) Sanjay Kaul (CJ Madras), Dipak Gupta (CJ Chattisgarh) Shantanagoudar (CJ Kerala) and a non-CJ from Karnataka and puisne, Justice S Abdul Nazeer.

Non-chief justices are called puisne judges. These appointments were overdue. But there is some controversy over the appointment of puisne judge Nazeer. This is a silly controversy for which the court itself may be responsible.

The major controversy over puisne appointments was when the Janata government in 1978 appointed Justice DA Desai who was number four in seniority in Gujarat.

Puisne judges

Senior judge JB Mehta of Gujarat resigned. CK Daphtary (former Attorney General) welcomed the appointment if it was free from corruption. Soli Sorabji (the additional solicitor general) found the via-media of not attending the swearing in of Desai. The underlying controversy was that Desai was too left wing and was distantly related to PM Morarji Desai.

When I wrote a book on this controversy I showed that from 1950-1978 28 appointments (nearly half) were of puisne judges who had never been CJs in any court. Included in the list of non-Chief Justices Mahajan, BK Mukherjea, Bhagwati senior, Gajendragadkar, Shah, AN Ray, Krishna Iyer — some but not all of whom became CJIs.

After 1978, there were other non-CJs in the HC, including Justice Venkatachaliah, Babu, Lahoti. Many puisne judges appointed to the SC were among its greatest. Why is preference given to appointing CJs of some HC or the other? One reason is under the transfer policy of the government from the mid-eighties whereby chief justices were chosen from some other state.

This is manouvered to make chosen favourites to become High Court CJs in their pathway to appointment to the Supreme Court. The second reason comes from the Supreme Court Judicial Appointment cases of 1993 and 1998.

Colossal mess

The normal rule is to appoint HC CJs as SC justices unless there is a puisne (CJ) of exceptional abilities who simply must come to the SC.

So chief justices of HC come first (the seniority principal) and puisne judges only if they are exceptional (the merit principle). We must assume that in the present appointment of 2017 of puisne judge Nazeer is of exceptional quality. However, raising controversies of Nazeer must now be rested as stale.

But unfortunately the "best" judges do not find their way to the SC. Some CJIs of India could not even dictate orders (for example: CJIs Balkrishnan and Khare). Even their judgments could well have been written by others. I know of at least one example of this.

Appointments to the HC and CJ are in a colossal mess. The principal of seniority has too many loopholes. There is a loss of objectivity. Once upon a time, the judges of the HC and SC were truly distinguished. This is no longer the case.

Like Mrs Indira Gandhi after the Bangladesh war, the present government has a powerful majority. Just as in America, Justice Scalia’s replacement will change the balance in amongst the judges.

In India, too, judicial appointments in the HC and SC could change judicial decisions. Any attempt to saffronise the judiciary must be closely watched.

(Courtesy of Mail Today.)

Also read: A look at outgoing chief justice of India TS Thakur's controversial year


Rajeev Dhavan Rajeev Dhavan

Supreme Court lawyer.

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